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. "Thiscase is going to fail, and thereason for that is the First Amendment. You and I andmembers of the public have avery broad right to criticizeour public officials, especiallythe president. It is okay topost things that are stupid,that are irresponsible, that are scary, that are silly, that areinsulting. The only line thatthe criminal law draws, and thecriminal law gives a very wideberth to the First Amendment, isyou cannot make a statement thatis intended to make a specificthreat of death or physicalinjury to the president, or toanother 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.
"Solet's look at these seashells – '86 47,' right – 47 means Donald Trump, 47th president, but 86 isway too ambiguous to uphold aconviction," Honig said. "Yes, are thereexamples of people meaning 86 toreference killing or physicalinjury? Sure, but far morecommonly, 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 proveyour case beyond a reasonabledoubt. There is no way they dothat."
Prosecutors must prove that Comey had made a specific threat of bodily harm against the president.
"The law calls it a truethreat," Honig said. "It can't even besomething rhetorical, right, soif you said, 'Boy, I'd like tokick that guy's butt,' that'sprobably not even going to bespecific enough to constitute atrue threat. If one were topost, hypothetically, when thepresident comes to this town, Iwill inflict injury on him, Iwill kill him, I urge people toassault him, that would probablycross the line, but seashellsspelling '86 47,' I don't eventhink this reaches a jury. Ithink 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'veever seen a stronger case forvindictive prosecution," Honig said. "Whatthat means is, I'm beingselected for prosecution becausethere's bad blood betweensomeone in the government andme. So what do we have here? Wehave the long history, right? Hundreds of times, Jim Comey and Donald Trump have both postednegative things about eachother. Donald Trump, specifically, Truth Social in September oflast year calling for Jim Comey's prosecution. Then theyindicted him once, and thatfailed, and now they've goneback a second time – and, by theway, that is the sort ofparadigmatic example of avindictive prosecution. Youcharge the person once they beatyou as a prosecutor."
"Now hecan say, look, I beat him a fewmonths ago, now they came backwith something new to try to getme," he added.