Legal experts say James Comey indictment is backed by concrete evidence

Legal experts are pushing back against skepticism surrounding the indictment of former FBI Director James Comey, arguing that the Justice Department would not have brought the case without meeting key legal criteria.

“A lot of people are saying the case is going nowhere, but it’s way too early to reach that conclusion,” said former Democratic U.S. Attorney John Fishwick, who served in Virginia during the Obama administration, warning against dismissing the case prematurely.

The indictment, filed last month in the Eastern District of North Carolina, alleges that Comey, a longtime Trump foe, threatened the president and transmitted interstate communications containing threats when he posted a photo on Instagram of seashells reading “8647” last year.

Free speech advocates and left-wing critics opposed the indictment, accusing the Justice Department of undermining free speech in the name of prosecuting one of Trump’s main political rivals. Comey, whom Trump fired as FBI director in 2017, has spoken out openly against the president and profited from sales of his anti-Trump book, while Trump said Comey was “guilty as hell” on social media and should face criminal charges.

BLANCHE TURNED THE TABLE ON CRITICISM OF COMEY INCHARGATION: “STAY INSURED” CASE GOES BEYOND THE INSTAGRAM POST

Former FBI Director James Comey speaks to lawmakers after being indicted by the Justice Department. (Cheriss May/Getty Images)

“Comey wants revenge on Trump and has publicly attacked Trump separately from the shellfish,” Fishwick said, adding that Trump has also publicly stated that he perceives the post as a threat.

Prosecutors must prove Comey’s intent and that the message constituted a “real threat,” a high legal bar that has fueled questions about whether the case could succeed, especially in the recent threat environment where Trump has now faced three alleged assassination attempts.

“You’re proving your intent like you always do,” Acting Attorney General Todd Blanche said on “Meet the Press” this weekend. “You prove intent with witnesses. You prove intent with documents, with material. … It’s not just a single Instagram post. It’s a body of evidence that the grand jury collected over a series of about 11 months.”

Chad Mizelle, former DOJ chief of staff, told Fox News Digital that the legal standard for convicting Comey of threatening the president was high, but that the indictment suggested there was underlying evidence.

“I don’t think the department would have obtained the indictment without concrete evidence that Comey knowingly and willingly threatened the President of the United States,” Mizelle said.

Mizelle noted that evidence could take many forms, such as non-public text messages or emails.

“What was Comey’s intention when he said that?” » asked Mizelle. “I suspect the DOJ has proof of that, and I bet it’s not favorable to Comey.”

IN TRYING TO GET COMEY CHARGED, U.S. PROSECUTORS HAVE A SHORT DEADLINE – AND A DIFFICULT CASE TO PRESENT

Todd Blanche, President Donald Trump’s nominee for deputy attorney general, testifies before the Senate Judiciary Committee in Washington, DC, February 12, 2024, facing questions about the independence of the Justice Department and investigations into the Capitol riots. (Daniel Heuer/Bloomberg)

The term “86” has been used as slang for getting rid of someone or something, often in restaurants for an unavailable item or a refused customer. Prosecutors alleged that, coupled with “47” — a reference to Donald Trump as the 47th president — Comey’s post amounted to a threat.

Before leading the FBI, Comey was a federal prosecutor and deputy attorney general at the Justice Department.

Comey, “more than any American, knows not to make threats and knows what a threat looks like,” Fishwick said.

Sen. Josh Hawley, R-Mo., told Fox News: “He’s a very smart guy. He knows what he’s doing. He’s nobody’s idiot. … He knew exactly what he was doing, but hey, he’s going to have his day in court.”

The DOJ obtained the indictment from a grand jury days after a third alleged assassination attempt against Trump at the annual White House Correspondents’ Association dinner, a point Blanche dug into as evidence that pursuing threats against the president, regardless of who made them, is a top priority. Fishwick said political violence would be relevant if the case went to trial.

“As a backdrop to any trial, North Carolina jurors will be aware of all the political threats in this country and will know that something must be done,” Fishwick said.

Jonathan Turley, a law professor at George Washington University, raised First Amendment concerns, saying that if the case hinged solely on the image of the seashells forming “8647,” it could face significant legal hurdles, arguing that the image “is clearly protected speech” in the absence of additional evidence.

James Comey posted a photo on Instagram showing him standing on a beach. (Fox News)

The Foundation for Individual Rights and Expression said “86” could actually mean impeachment and that the charges went against Supreme Court precedent that set the standard for a “real threat.”

“The idea that Comey’s photo of seashells expresses serious intent to harm the President is ridiculous,” the group wrote on social media. “The administration should abandon this transparent and unconstitutional attempt to punish a critic.”

DAN BONGINO, DEPUTY DIRECTOR OF THE FBI: JAMES COMEY “SHAMED THE FBI AGAIN” WITH THE “86 47” POST

Comey quickly deleted the post, saying at the time that he didn’t realize he had shared anything threatening. After the indictment, he declared himself “still innocent”.

“I’m still not afraid and I still believe in the independence of the federal judiciary, so let’s go for it,” Comey said.

Judicial Watch President Tom Fitton accused “left-wing media [of] rushing to James Comey’s defense, claiming it was about free speech.”

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“You have no right to advocate for the assassination of the president,” Fitton said.

Comey’s arraignment is set for May 11 in Greenville. Comey’s attorney had no comment for this story.