Comey's seashell post got him indicted. But experts are skeptical the government can win

Observers experienced a tingle of déjà vu this week as they watched the Department of Justice indict James Comey on charges that he threatened his political rival, President Donald Trump.

That was quickly followed by a social media video posted by the former FBI director, defending himself. Then on Wednesday, Comey made the obligatory trek to a federal courthouse, appearing before a judge.

A nearly identical sequence played out last fall, when the justice department brought different charges against Comey - later tossed by a judge.

And much like that first case, legal experts expressed skepticism about the department's allegations and a possible conviction. They pointed to the legal thresholds prosecutors must meet, constitutional free speech protections, and Trump's public statements about Comey as potential vulnerabilities for the prosecution.

"It's a very weak indictment, and it doesn't seem to me that it's a chargeable case," said Evan Gotlob, partner at DarrowEverett and a former federal prosecutor.

"This seems fit to get dismissed at some point."

• Comey surrenders over charge of threatening Trump's life in Instagram post

Some lawyers predicted Comey will try to have the indictment thrown out on the grounds of "vindictive prosecution", a bid his team made in the first case.

Comey faces two counts, one alleging he threatened to harm the president, the other for digitally transmitting the alleged threat.

The case stems from an Instagram post Comey made last year, which depicted seashells on a beach arranged to form the numbers "86 47".

"47" may refer to President Donald Trump, while "86" is a slang term, often identified with the restaurant industry, which can mean to "eject" or "remove."

The justice department argues that a "reasonable recipient who is familiar with the circumstances would interpret as a serious expression of an intent to do harm to the President of the United States."

To convict Comey, prosecutors must now prove intent.

"Prosecutors would need to prove that the seashell display was 'true threat,' which the Supreme Court has defined as a serious expression conveying that a speaker means to commit an act of unlawful violence," Barbara McQuade, a former US attorney for the Eastern District of Michigan who now teaches at the University of Michigan.

The government also must show that Comey was reckless in making his post, and knew the risks of doing so, McQuade said.

Comey deleted the initial post, explaining that he came across the seashells while walking on the beach and thought they were a "political message".