Fox News’ Jonathan Turley expressed his reservations about the Department of Justice’s new indictment of former FBI director James Comey on Tuesday afternoon.

According to ABC News, “A federal grand jury in North Carolina has indicted former FBI Director James Comey over a controversial Instagram post from last year that President Donald Trump and members of his administration claimed was a threat against the president.” The post, which Comey captioned, “Cool shell formation on my beach walk,” included a picture of seashells arranged on the beach to read, “86 47.”

Shortly after the news of the indictment broke, America Reports anchor Gillian Turner addressed Turley, saying, “Jonathan, when Comey initially posted that Instagram photo, his caption insinuated that he did not create this shell art formation in the sand. I’m curious if it matters whether he-, and, you know, a lot of critics-, he got a lot of criticism at the time and everyone was saying, ‘oh we all know that you actually put that together and then photographed it.’ Does any of that matter in a legal sense in this case whether Comey is the originator of that message, or whether he just walked by as he claims to have done, and photographed it?”

“Well, I have to say, I must be in a parallel universe to be talking about the shell artwork of James Comey, but the fact is that it is relevant only to the extent that he might have denied a fact that proved to be — his denial proved to be false to federal officials,” replied Turley, who continued after a brief point of clarification from Turner:

Well, if he was questioned and gave false information to federal investigators, that can be the basis of a charge. I think that just showing the picture is going to be a weak case in terms of a threat. What’s interesting is that the first indictment that was dismissed involved false statements under 18 USC 1001, and that’s the most used provision in terms of false statement prosecutions by the Department of Justice.

What’s interesting about that dismissal is that it was based on the fact that Lindsey Halligan, who was the acting U.S. attorney, was viewed as not properly in her position. That problem has now been cured by James Hundley, who is appointed essentially by the court. Now, it’s not clear if they went back and just cured that problem they’re gonna reissue part of what they were pursuing, or whether we’re talking at this point of something that is a new charge.

“So, professor, we don’t yet know what the contents of the indictment hold, but Kerri Urbahn posits that it may be charges under 18 USC 871, which makes it a federal crime to knowingly and willfully mail or make any threat to kill, kidnap, or inflict bodily harm upon the president, vice president, or their successors. There may also be a charge under a transmission clause of 18 USC subsection 871. Is showing a picture of shells that say ’86 47′ is that-, I mean, that could be could be taken as a threat, but does it amount to one to you?” followed up John Roberts.

“In my view, it would very likely be viewed as protected speech if it was the basis of a criminal indictment. That alone would have a hard time standing up in court,” answered Turley. “I’ve seen that reporting, and we’ll have to see how they would stick that landing in an indictment, but just showing a picture like that would be a very difficult foundation, a very unstable foundation for a prosecution, because right out of the gate will come a First Amendment challenge that the court, I think, would consider first and foremost.”

Watch above via Fox News.

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