Federal prosecutors are pursuing charges against former FBI Director James Comey as a way of "striking back" for actions he took against President Donald Trump during his time in office, but their case against him is "weak," retired Judge Andrew Napolitano said Friday on Newsmax.
Napolitano, Newsmax's senior judicial analyst, commented on Newsmax's "National Report" that Comey's behavior toward Trump during his presidency was "illegal, reprehensible, and politically motivated," but still, "It's too late to prosecute him for that."
"Many of the things he did in the first term, and then he was fired in the beginning of the first term," said Napolitano. "Many of the things he did in the tail end of President [Barack] Obama's presidency could have formed the basis for criminal prosecutions in the first Trump term. They didn't do that. The statute of limitations has expired."
During his tenure, Comey oversaw several investigations and legal actions involving Trump and his allies that the former president has repeatedly denounced as "lawfare."
Many of those efforts — such as the Russia collusion probes, the pursuit of charges tied to alleged campaign contacts with Moscow, and surveillance controversies involving Trump associates — ultimately did not succeed.
Napolitano explained that prosecutors are now on their third attempt to indict Comey after two previous grand juries rejected charges. The current indictment includes two counts.
The first alleges Comey lied under oath when asked by Sen. Ted Cruz if he had authorized another FBI official to leak information about the Trump-Russia investigation to the press. Former Deputy Director Andrew McCabe has testified that Comey did give that authorization, while Comey flatly denied it with a one-word answer: "No."
Comey is "being prosecuted for this one-word answer as a way of striking back at him for the other things that he did," said Napolitano. "That's not really permissible under the law, but prosecutors do it."
Napolitano added that the case against Comey is essentially "a he said, he said," matter, noting that the Justice Department's inspector general had already concluded McCabe lied and Comey told the truth. That, he said, is why earlier prosecutors and grand juries declined to move forward.
The second charge builds directly on the first, accusing Comey of obstructing justice by frustrating Congress's investigation as a result of the alleged false statement.
Napolitano emphasized the weakness of this count as well: "If he's found not guilty on the lie, or if the lie part is dismissed by a federal judge, then the obstruction of justice part goes away as well."
He stressed the government faces long odds in trying to secure a conviction.
"I think it's a very weak case, and I think it's a very difficult one to prove," Napolitano said, pointing to McCabe as a problematic witness. "He's Jim Comey's friend and former colleague who does not want to see him convicted. I don't think the government is going to get out of him what they want, other than what he already told Congress."
Napolitano concluded the trial will come down to a stark question for jurors: "Did he or didn't he lie?"
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