Former New Jersey Superior Court Judge and ex-Fox News host Andrew Napolitano declared Wednesday that the Justice Department's indictment of former FBI Director James Comey is legally baseless and will almost certainly be thrown out of court. Speaking on Newsmax's "Wake Up America," Napolitano argued the charges amount to little more than a political vendetta dressed up as criminal law.
"I think Comey's people will move to dismiss it, that it's protected speech, and I think that motion will be granted," Napolitano said. He went further, calling the case "so frivolous that Comey may actually end up getting his legal fees reimbursed by the government."
The indictment stems from a social media post Comey made nearly a year ago, showing a photo of seashells arranged to form the numbers "86-47" on a North Carolina beach. The Justice Department alleges the post constituted a threat against President Trump, citing the number "86" as a police code for murder. The DOJ's interpretation has drawn sharp criticism from legal experts across the political spectrum.
Napolitano pointed to Supreme Court precedent requiring that threats be immediate and unambiguous to lose First Amendment protection. "If there's a passage of time between the alleged threat and any harm caused, that dissipates the threat and gives the person threatened the opportunity to challenge it," he explained. "If this were a real threat to the president of the United States, Comey would have been charged a year and a half ago."
Free Speech or Death Threat?
Comey, who led the FBI's Russia investigation into Trump's 2016 campaign, deleted the post the same day and issued an apology, saying he did not realize the numbers could be associated with violence. "It never occurred to me but I oppose violence of any kind so I took the post down," he stated at the time.
Napolitano emphasized the broader legal principle at stake: "If there is any non-criminal interpretation of the speech, that trumps — no pun intended, lowercase T — that trumps the criminal aspect." This echoes warnings from other legal scholars, including George Washington University law professor Jonathan Turley, who cautioned that the indictment sets a dangerous free speech trap for prosecutors.
Political Context and Criticism
The new charges come on the heels of a previous indictment against Comey for false statements and obstruction, which was dismissed due to the unlawful appointment of the prosecutor. They were announced just days after a third assassination attempt on President Trump, a timing that has fueled allegations of political motivation. Democrats and some Republicans have voiced concern, with figures like Senator Thom Tillis urging caution and warning of a "low bar" for prosecution. Representative Jamie Raskin called the indictment "surreal" and a political vendetta, while former FBI Deputy Director Andrew McCabe dismissed it as a DOJ misstep tied to Trump's desire for retribution.
Napolitano, who has been a vocal critic of Comey in the past, made clear his disdain for the former FBI director does not extend to endorsing what he sees as an abuse of prosecutorial power. "I'm not a fan of Comey's at all, and I've never hesitated to criticize him, and we all know what almost happened to the president of the United States the other night and on two dreadful prior occasions," he said. "But this is a political vendetta against a political adversary and it shouldn't be using the Justice Department as a means for that."
The case now heads to court, where legal observers expect Comey's defense to file a motion to dismiss on First Amendment grounds. Prosecutor Todd Blanche has denied the indictment is an audition for a higher role, but the political fallout continues to ripple through Washington.
