James Comey Director Federal Bureau of Investigation discusses the impact of technology on the work of law enforcement. Image via Brookings Institution/Flickr.
President Donald Trump yet again is attempting to prosecute former FBI Director James Comey, and this latest legal venture is so legally flawed that the Justice Department cannot even arrest him, according to CNN senior legal analyst Elie Honig.
Honig tore apart the administration's latest case against Comey during a Tuesday morning CNN appearance, calling the prosecution a bizarre legal construction that could collapse before it reaches a courtroom.
"This thing is basically a Frankenstein monster of criminal procedure. They cobbled it together out of spare parts, and I don't think it's going to work," Honig told anchor Kate Bolduan.
The Justice Department is attempting to prosecute Comey over allegedly leaking classified information to a reporter in October 2016.
Rather than secure a grand jury indictment, prosecutors filed a document known as a criminal information on October 5, 2026, which is ten years after the alleged conduct.
"The Justice Department at this moment does not have a warrant or other basis to go out and even arrest Jim Comey," Honig explained before describing the filing as a “a one-sided unilateral allegation by a prosecutor."
Honig noted that prosecutors generally use such filings when defendants agree to waive the grand jury process, usually because they intend to plead guilty, but Comey has rejected it.
"What they're trying to do, it appears, as you said, is extend the ten-year statute of limitations," Honig said, continuing: "But because I think the information is faulty in the first place, it's not going to work. And if they try to indict him now, today or tomorrow, we're beyond that ten-year statute of limitations."
He then described it as a “creative device” before predicting that it will backfire.
The former federal prosecutor identified another obstacle: previous federal investigations failed to establish grounds to prosecute Comey.
Honig pointed out that special counsel John Durham's investigation resulted in no criminal charges, giving the 2019 Justice Department inspector general investigation as an example.
"DOJ's own in-house nonpartisan inspector general thoroughly investigated this incident," Honig said, explaining that investigators found Comey had violated internal policies but had not disclosed any classified information.
"So even if they didn't have the procedural problems, I don't see where there's a criminal case to be made here against Jim Comey."
Honig suggested Comey could make a compelling legal challenge based on vindictive prosecution.
"If this becomes a full-blown charge, Jim Comey will have one of the strongest vindictive prosecution motions to dismiss that I've ever seen," he said.
"The first one's already been thrown out by a federal judge," he explained. The second one, the seashell case, is on its way to being thrown out. This one, as I laid out before, is infirm."
Honig added that Comey could potentially pursue civil damages against the government.
