Why Wasn’t Andrew McCabe Charged?
The Justice Department announced Friday that it is closing its investigation of Andrew McCabe, the FBI’s former deputy director, over his false statements to investigators probing an unauthorized leak that McCabe had orchestrated. McCabe was fired in March 2018, shortly after a blistering Justice Department inspector general (IG) report concluded that he repeatedly and blatantly lied — or, as the Bureau lexicon puts it, “lacked candor” — when questioned, including under oath.
Why not indict McCabe on felony false-statements charges? That is the question being pressed by incensed Trump supporters. After all, the constitutional guarantee of equal justice under the law is supposed to mean that McCabe gets the same quality of justice afforded to the sad sacks pursued with unseemly zeal by McCabe’s FBI and Robert Mueller’s prosecutors. George Papadopoulos was convicted of making a trivial false statement about the date of a meeting. Roger Stone was convicted of obstruction long after the special counsel knew there was no Trump–Russia conspiracy, even though his meanderings did not impede the investigation in any meaningful way. And in the case of Michael Flynn’s false-statements conviction, as McCabe himself acknowledged to the House Intelligence Committee, even the agents who interviewed him did not believe he intentionally misled them.
I emphasize Flynn’s intent because purported lack of intent is McCabe’s principal defense, too. Even McCabe himself, to say nothing of his lawyers and his apologists in the anti-Trump network of bureaucrats-turned-pundits, cannot deny that he made false statements to FBI agents and the IG. Rather, they argue that the 21-year senior law-enforcement official did not mean to lie, that he was too distracted by his high-level responsibilities to focus on anything as mundane as a leak — even though he seemed pretty damned focused on the leak while he was orchestrating it.
The “he did not believe he intentionally misled them” defense is not just implausible; it proved unavailing on McCabe’s watch, at least in General Flynn’s case. Hence, McCabe has a back-up plan: To argue that it would be extraordinary — and thus unconstitutionally selective and retaliatory — for the Justice Department to prosecute a former official for false statements in a “mere” administrative inquiry (which the leak probe was), as opposed to a criminal investigation. Again, tell that to Flynn, with whom the FBI conducted a brace-style interview — at the White House, without his counsel present, and in blithe disregard of procedures for FBI interviews of the president’s staff — despite the absence of a sound investigative basis for doing so, and whom Mueller’s maulers squeezed into a guilty plea anyway.
It will be a while before we learn the whole story of why the Justice Department walked away from the McCabe case, if we ever do. I have some supposition to offer on that score. First, however, it is worth revisiting the case against McCabe as outlined by the meticulous and highly regarded IG, Michael Horowitz. If you want to know why people are so angry, and why they are increasingly convinced that, for all President Trump’s “drain the swamp” rhetoric, a two-tiered justice system that rewards the well-connected is alive and well, consider the following.
McCabe’s Leak
In October 2016, McCabe directed his counsel, Lisa Page, to leak investigative information about the FBI’s Clinton Foundation probe to reporter Devlin Barrett, then of the Wall Street Journal. The leak had the effect of confirming the existence of the investigation, something the FBI is supposed to resist. While his high rank gave him the power to authorize such a disclosure if it were in the public interest, the IG found that McCabe’s leak “was clearly not within the public interest.”
In fact, the Bureau’s then-director, James Comey, had tried to keep the Clinton Foundation probe under wraps, refusing to confirm or deny its existence even to the House Judiciary Committee. Comey had been right to stay mum: Public revelation would have harmed the probe and thrust the FBI deeper into the politics of the then-imminent 2016 presidential election, in which Hillary Clinton was the Democratic candidate and her investigation by the Bureau was an explosive campaign issue.
Notwithstanding these concerns, according to Horowitz’s report, McCabe orchestrated the leak “to advance his personal interests” — to paint himself in a favorable light in comparison to Justice Department officials amid an internal dispute about the Clinton Foundation probe (specifically, about the Obama Justice Department’s pressure on the Bureau to drop it). As the IG put it: “McCabe’s disclosure was an attempt to make himself look good by making senior department leadership . . . look bad.”
McCabe’s account has been contradicted by Comey, a witness who is otherwise sympathetic to him and hostile to the Trump Justice Department, and whose actions — like his — are being examined in prosecutor John Durham’s probe of the Trump-Russia investigation. Comey’s testimony is directly at odds with McCabe’s version of events, and the IG painstakingly explained why the former director’s version was credible while his deputy’s was not. (Comey was, nevertheless, exceedingly complimentary of McCabeafter the IG report was published.)
Page is regarded by McCabe backers as key to his defense. She reportedly told the grand jury that, because McCabe had authority to approve media disclosures, he had no motive to lie about the leak. That’s laughable. McCabe did serially mislead investigators, so plainly he had some reason for doing so. But even putting that aside, the IG’s conclusion was not that McCabe lacked authority to leak; it was that he lacked a public-interest justification for exercising that authority. He leaked for self-promotion purposes, and then he lied about it because it was humiliating to be caught putting his personal interests ahead of the Bureau’s investigative integrity. That said, Page’s account does illuminate a problem for prosecutors: It’s tough to win a case when your witnesses are spinning for the defendant. (Oh, and have you seen Page’s tweet toasting McCabe in the aftermath of the news that the DOJ had closed the investigation?)
McCabe’s Multiple False Statements
Barrett’s Journal article appeared on October 30, 2016. The very next day, McCabe deceived Comey about it, indicating that he had not authorized the leak and had no idea who its source was. In Comey’s telling, credited by the IG, McCabe “definitely” did not acknowledge that he had approved the leak.
Thereafter, the FBI’s Inspection Division (INSD) opened an investigation of the leak. On May 9, 2017, McCabe denied to two INSD investigators that he knew the source of the leak. This was not a fleeting conversation. McCabe was placed under oath, and the INSD agents provided him with a copy of Barrett’s article. He read it and initialed it to acknowledge that he had done so. He was questioned about it by the agents, who took contemporaneous notes. McCabe told the agents that he had “no idea where [the leaked information] came from” or “who the source was.”
On July 28, 2017, McCabe was interviewed by the IG’s office — under oath and recorded on tape. In that session, he preposterously claimed to be unaware that Page, his FBI counsel, was directed to speak to reporters around the time of the October 30 Journal report. McCabe added that he was out of town then, and thus unaware of what Page had been up to. In point of fact, McCabe had consulted closely with Page about the leak. A paper trail of their texts and phone contacts evinced his keen interest in Page’s communications with Barrett. Consequently, the IG concluded that McCabe’s denials were “demonstrably false.”
Clearly concerned about the hole he had dug for himself, McCabe called the IG’s office four days later, on August 1, 2017, to say that, shucks, come to think of it, he just might have kinda, sorta told Page to speak with Barrett after all. He might even have told her to coordinate with Mike Kortan, then the Bureau’s top media liaison, and follow-up with the Journal about some of its prior reporting.
As the IG observed, this “attempt to correct his prior false testimony” was the “appropriate” thing for McCabe to do. Alas, when he was given an opportunity to come in and explain himself, he compounded his misconduct by making more false statements while under oath: In an interview with investigators on November 29, 2017, McCabe purported to recall informing Comey that he, McCabe, had authorized the leak, and that Comey had responded that the leak was a good idea.
These were quite stunning recollections, given that the deputy director had previously disclaimed any knowledge about the source of the leak. But McCabe took care of that little hiccup by simply denying his prior denial. That is, he insisted that he had not feigned ignorance about the leak when INSD interviewed him on May 9. Indeed, McCabe even denied that the May 9 interview had been a real interview. To the contrary, he claimed that agents had casually pulled him aside at the conclusion of a meeting on an unrelated topic, and peppered him out of the blue with a question or two about the Journal leak. As General Flynn could tell you, that sort of thing can be tough on a busy top U.S. government official . . . although Flynn did not get much sympathy for it when McCabe was running the FBI.
Again, the IG concluded that McCabe’s version of events was “demonstrably false.”
McCabe Covers His Tracks
As an old trial lawyer, I’d be remiss if I failed to rehearse my favorite part of the IG’s report — the part that would tell a jury everything they needed to know about good ol’ Andy McCabe.
Again, the Journal story generated by McCabe’s leak was published on October 30, a Sunday. Late that afternoon, McCabe called the head of the FBI’s Manhattan office. Why? Well . . . to ream him out over media leaks, that’s why. McCabe railed that New York agents must be the culprits. He also made a similar call to the Bureau’s Washington field office, warning its chief to “get his house in order” and stop these terribly damaging leaks.
It is worth remembering McCabe’s October 30 scolding of subordinates when you think about how he later claimed that, on the very next day, he’d freely admitted to his superior, Comey, that he himself was the source of the leak. Quite the piece of work, this guy: To throw the scent off himself after carefully arranging the leak, McCabe dressed down the FBI’s two premier field offices, knowing they were completely innocent, and then pretended for months that he knew nothing about the leak.
This is the second-highest-ranking officer of the nation’s top law-enforcement agency we’re talking about, here.
The Non-Prosecution Decision
We may never get a satisfying explanation for the Justice Department’s decision to drop the McCabe probe. That’s the way it is when such complicated reasons and motives are at play.
The aforementioned challenge of hostile witnesses is not to be underestimated. In addition, there are growing indications that the Justice Department had lost confidence in the U.S. attorney who was overseeing the probe, Jesse Liu. As I noted this week, while Liu was once seen as a rising Trump administration star, she was quietly edged out of her post last month, and the White House just pulled her nomination to fill an important Treasury Department post.
There have been rumblings that the McCabe investigation was botched. Kamil Shields, a prosecutor who reportedly grew frustrated by her supervisors’ inordinate delays in making decisions about the McCabe probe, ultimately left the Justice Department to take a private-practice job. Another prosecutor, David Kent, quit last summer as DOJ dithered over the decision on whether to prosecute. Things became so drawn out that the investigating grand jury’s term lapsed. Meanwhile, the Justice Department endorsed Liu’s aggressive decision to bring a thin, politically fraught false-statements case against former Obama White House counsel Greg Craig, in connection with lobbying for a foreign country — the sort of crime that is rarely prosecuted. Craig was swiftly acquitted. Reportedly, Liu advocated charging McCabe, but the DOJ may have harbored doubts about her judgment.
No matter the outcome, the Justice Department stood to take some hits if McCabe had been charged. Focus on McCabe’s leak would have drawn attention to pressure DOJ officials had put on the Bureau over the Clinton Foundation investigation (which, reportedly, is likely to be closed without charges). It would also renew interest in the question of whether the FBI improperly allowed McCabe to play a role in Clinton-related investigations when his wife, as a political candidate, got major funding from Clinton-tied sources.
Moreover, new Freedom of Information Act disclosures — made to meet a deadline set by District Judge Reggie Walton, which may explain the timing of the non-prosecution announcement — indicate that the Justice Department and FBI did not comply with regulations in what appears to be the rushed termination of McCabe, adding heft to the former deputy director’s claim that he was being singled out for abusive treatment, potentially including prosecution, because of vengeful politics.
On that score, Judge Walton took pains to decry the fusillade of tweets directed at McCabe by President Trump. I must note here that if a district U.S. attorney publicly labeled as a liar a suspect the Justice Department had indicted for false statements, that U.S. attorney would be sanctioned by the court. The U.S. attorneys, like the rest of the Justice Department, work for Trump. The president is correct when he insists, as he did this week, that he has the constitutional power to intervene in Justice Department matters. But that means he is subject to the same legal obligations that inhibit his Justice Department subordinates. Those obligations include protecting McCabe’s right to a fair trial — a duty the president may chafe at, but which is part of the deal when you take an oath to preserve the Constitution and execute the laws faithfully.
If you envision Judge Walton as part of the Obama-appointed robed resistance, check your premises. He is a no-nonsense jurist originally named to the D.C. Superior Court by President Reagan, and then to the federal district court by President George W. Bush. As Politico reports, he had this to say about President Trump’s commentary on the McCabe investigation:
The public is listening to what’s going on, and I don’t think people like the fact that you got somebody at the top basically trying to dictate whether somebody should be prosecuted. . . . I just think it’s a banana republic when we go down that road. . . . I think there are a lot of people on the outside who perceive that there is undo inappropriate pressure being brought to bear. . . . It’s just, it’s very disturbing that we’re in the mess that we’re in in that regard. . . . I just think the integrity of the process is being unduly undermined by inappropriate comments and actions on the part of people at the top of our government. . . . I think it’s very unfortunate. And I think as a government and as a society we’re going to pay a price at some point for this.
If you want to know why Attorney General Barr was warning this week that the president’s tweets are undermining the Justice Department’s pursuit of its law-enforcement mission, Judge Walton’s words are worth heeding. I have been making this point since the start of the Trump presidency. If you want people held accountable for their crimes, you have to ensure their fundamental right to due process. When the government poisons the well, the bad guys reap the benefits.
Finally, we must note that when the District of Columbia is the venue for any prosecution with political overtones, Justice Department charging decisions must factor in the jury pool, which is solidly anti-Trump.
The proof that McCabe willfully deceived investigators appears strong — it is noteworthy that IG Horowitz, who has strained to give the FBI the benefit of the doubt in many dubious contexts, was unequivocal in slamming McCabe. Nevertheless, a D.C. jury would be weighing that evidence, as discounted by whatever pro-McCabe slant reluctant prosecution witnesses put on it. And the jury would be weighing against that evidence (a) whatever problems caused prosecutors at the U.S. attorney’s office to beg off, and more significantly, (b) defense arguments that McCabe would not have been fired or prosecuted if not for the fact that he had gotten crosswise with a president of the United States whom at least some of the jurors are apt to dislike.
Looking at all that baggage, the Justice Department must not have liked its chances.
McCabe is not out of the woods yet, of course: The Durham investigation is a separate matter, and it is continuing. But it is unclear whether he will face any criminal charges arising from that inquiry, whereas the now-dead-and-buried false-statements case against him looked cut-and-dried.
The FBI’s former deputy director, though he undeniably misled investigators, remains a commentator at CNN. In the meantime, Papadopoulos is a felon convicted and briefly imprisoned for misleading investigators, while Flynn and Stone are awaiting sentencing on their false-statements charges. That covers both tiers of our justice system.
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