'This is going to fail': Legal expert shoots down DOJ's 'surefire loser' revenge case

CNN's Elie Honig poured cold water all over the latest federal indictment of former FBI Director Jim Comey.

The Department of Justice secured a second indictment against Comey, a longtime political foe of President Donald Trump, for a social media post that prosecutors allege amounted to an assassination threat, but Honig told "CNN News Central" the case was a farce that would not likely even reach a jury.

"I see a surefire loser," Honigh said. "This case is going to fail, and the reason for that is the First Amendment. You and I and members of the public have a very broad right to criticize our public officials, especially the president. It is okay to post things that are stupid, that are irresponsible, that are scary, that are silly, that are insulting. The only line that the criminal law draws, and the criminal law gives a very wide berth to the First Amendment, is you cannot make a statement that is intended to make a specific threat of death or physical injury to the president, or to another public official."

The indictment accuses Comey of threatening violence against the president in a social media post in which he had arranged seashells to spell out the numbers "86 47," a reference to restaurant jargon and Trump's place in the presidential lineage.

"So let's look at these seashells – '86 47,' right – 47 means Donald Trump, 47th president, but 86 is way too ambiguous to uphold a conviction," Honig said. "Yes, are there examples of people meaning 86 to reference killing or physical injury? Sure, but far more commonly, 86 is just an old-fashioned term for get rid of, throw out, cross off the list, what have you, and, remember, prosecutors, you have to prove your case beyond a reasonable doubt. There is no way they do that."

Prosecutors must prove that Comey had made a specific threat of bodily harm against the president.

"The law calls it a true threat," Honig said. "It can't even be something rhetorical, right, so if you said, 'Boy, I'd like to kick that guy's butt,' that's probably not even going to be specific enough to constitute a true threat. If one were to post, hypothetically, when the president comes to this town, I will inflict injury on him, I will kill him, I urge people to assault him, that would probably cross the line, but seashells spelling '86 47,' I don't even think this reaches a jury. I think a judge throws it out."

A previous case against Comey was dismissed after a federal judge determined that then-U.S. Attorney Lindsey Halligan had not not been lawfully appointed, and Honig said that would bolster his likely assertion that this latest indictment was a vindictive prosecution.

"I don't know that I've ever seen a stronger case for vindictive prosecution," Honig said. "What that means is, I'm being selected for prosecution because there's bad blood between someone in the government and me. So what do we have here? We have the long history, right? Hundreds of times, Jim Comey and Donald Trump have both posted negative things about each other. Donald Trump, specifically, Truth Social in September of last year calling for Jim Comey's prosecution. Then they indicted him once, and that failed, and now they've gone back a second time – and, by the way, that is the sort of paradigmatic example of a vindictive prosecution. You charge the person once they beat you as a prosecutor."

"Now he can say, look, I beat him a few months ago, now they came back with something new to try to get me," he added.

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