Former FBI Director James Comey is sworn in prior to testifying before a Senate Intelligence Committee hearing on Capitol Hill in Washington, June 8, 2017. REUTERS/Jonathan Ernst
The DOJ's second indictment of James Comey is "flimsy, at best," according to a former U.S. attorney writing for MS NOW, but even if it is no real threat to the man himself, there is one threat it does pose.
On Tuesday, the DOJ confirmed that it had acquired a grand jury indictment against the former FBI director, charging him in relation to a photo he shared on social media last year featuring seashells arranged to spell out, "86 47," on a beach. The indictment argued that this was an active threat to do harm to or outright kill President Donald Trump, while Comey explained that it was merely in reference to removing him from office. He also never claimed to have arranged the shells himself, only to have found them during a morning walk.
This is the DOJ's second attempt to criminally indict Comey, as part of the ongoing campaign to weaponize the federal justice system against Trump's perceived enemies. The original indictment pertained to shaky allegations that he gave false statements to Congress in 2020, and was ultimately dismissed after a judge ruled that the prosecutor on the case, Lindsey Halligan, had been appointed illegally.
Barbara McQuade, a legal analyst for MS NOW and former U.S. Attorney for the Eastern District of Michigan, wrote in a Wednesday piece that this new indictment, filed in North Carolina, is "suspect for several reasons."
"First, Trump has already publicly demanded criminal charges against Comey for perceived grievances," McQuade explained. "Trump apparently still harbors a grudge over Comey’s refusal to pledge his loyalty to him in 2017, when Comey declined to halt the investigation into Russia’s efforts to influence the 2016 presidential elections."
She continued: "The timing is also suspect. The conduct described in this new indictment occurred almost a year ago. If this were a serious crime, the Justice Department would not have waited so long to indict. Only after the false statements charges fell apart did the DOJ treat this incident as a crime. Calling it a crime is generous. The legal theory behind this indictment is flimsy, at best."
McQuade further explained that a statement needs to be deemed a "true threat" in order to overcome the burden of free speech laws, "defined as a serious expression conveying that a speaker means to commit an act of unlawful violence." Comey's post, by comparison, was vague, open to "various interpretations" and immediately explained by the former FBI director himself. With all of those mitigating circumstances, she concluded that it is unlikely that a real jury would ever rule beyond a reasonable doubt that it was a "true threat."
Given that the case is almost certain to be dismissed before getting to trial, McQuade explained the only real threats that it poses.
"Even if the Justice Department cannot convict Comey, prosecutors can make his life miserable for several months by forcing him to pay for a lawyer, occupy his time and attention, emotionally exhaust his family and disparage his reputation," McQuade explained. "Ultimately, the only true threat here is to the legitimacy of the Department of Justice."
