Fox legal guest questions strength of Comey indictment: “This is a interpretation of seashells on a beach”
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From the April 29, 2026, edition of America's Newsroom
DANA PERINO (HOST): I want to ask you, Andrew, when they're talking about 'the grand jury, and the grand jury, the grand jury,' they're trying to make the case that 'it's not just us guys, the grand jury said it.' Does that matter?
ANDREW CHERKASKY (GUEST): Well, they've found probable cause, and a grand jury returning an indictment is a significant and serious event in a criminal prosecution, but we all know that an indictment and a probable cause standing is a lot different than a proof beyond a reasonable doubt standard. And so here we have a statement: '86 47.' Some people interpret that term '86' as a threat, a kill threat. Others, including Merriam-Webster Dictionary, says that it isn't actually a violent threat. The standard here is whether James Comey recklessly disregarded the idea that this would be taken as a threat. The information with him is that he's, I mean, he's so deep on the inside. And so did he receive some sort of briefing? Is there some sort of communication trail where he recognizes that '86' has a very violent or threatening tone to it, where most people or some people might use that term one way? He had that specific information. It's not in the indictment. It wasn't specifically said in the briefings that we received, but that I think is the is the key to saving this from a First Amendment claim that would essentially have this dismissed at one stage or another.
BILL HEMMER: So, he's in court this afternoon. We'll learn more then, a little bit more, right?
CHERKASKY: I don't anticipate this is going to be the stage where a judge kicks the case entirely. I think that there are going to be motions more quickly.
HEMMER: But he faced a charge about a year ago, right?
CHERKASKY: That's right.
HEMMER: And that was dropped. And that involved?
CHERKASKY: That involved the improper appointment of a U.S. attorney with false statements being made and alleged then. So that case that was brought right before the statute of limitations had passed, that's gone. This is new facts, a new incident.
HEMMER: So here's my query based on what you know right now about the law. Is this a better case than the one a year ago, or is the one a year ago better than this case now?
CHERKASKY: Well, I like the one a year ago better. There were stronger arguments that there were actually false statements that were made. Some of that was subjective and interpretive back then. This is an interpretation of seashells on a beach, and as my kids said, at least he didn't say 67. It was 86, right?
HEMMER: Your kids are smart and clever.