Thoughts on the Impending Prosecution of Andrew McCabe

I confess that this story shocks me.

The New York Times reported yesterday that “Federal prosecutors in Washington appear to be in the final stages of deciding whether to seek an indictment of Andrew G. McCabe, the former deputy F.B.I. director and a frequent target of President Trump, on charges of lying to federal agents.” Reporter Adam Goldman declares that,

In two meetings last week, Mr. McCabe’s lawyers met with the deputy attorney general, Jeffrey A. Rosen, who is expected to be involved in the decision about whether to prosecute, and for more than an hour with the United States attorney for the District of Columbia, Jessie K. Liu, according to a person familiar with the meetings. The person would not detail the discussions, but defense lawyers typically meet with top law enforcement officials to try to persuade them not to indict their client if they failed to get line prosecutors to drop the case.

Let me translate this paragraph for you: Such meetings generally take place when indictment is imminent; they happen when the government plans to bring charges. You should thus expect charges against McCabe to be forthcoming any day. And if such charges don’t happen, that doesn’t mean they weren’t planned but, rather, that some extrinsic event has intervened.

Why is that shocking? Because as best as I can tell, the facts available on the public record simply don’t support such charges. The only visible factor militating in favor of the Justice Department charging McCabe, in fact, is that the department has been on the receiving end of a sustained campaign by President Trump demanding McCabe’s scalp.

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To be sure, the inspector general’s report that prompted McCabe’s firing paints a deeply troubling portrait of McCabe’s conduct. It describes, in brief, how McCabe authorized an October 2016 disclosure on background to the Wall Street Journal and then misrepresented his role in the story on several occasions—including to the inspector general. I have no reason to disbelieve the inspector general’s account of this episode and no interest in defending McCabe’s alleged conduct. While McCabe has disputed the findings, he has not—at least not as of yet—presented a plausible alternative narrative that accounts for the facts the inspector general recounts. My point here is thus not to suggest that McCabe did nothing wrong.

But criminal charges? At least based on what’s in the inspector general’s report, this is very far from a criminal case. Criminal dispositions on false statements matters in internal investigations are exceptionally rare. Absent some gross aggravating factor, I struggle to think of any other examples. Workplace false statements are normally handled through internal disciplinary means, not criminal charges. There are countless public cases of gross misconduct and lies about that misconduct that are routinely declined as criminal matters. Here are a few examples of such cases culled from recent Office of the Inspector General investigations:

• Findings of Misconduct by a United States Marshal for Making an Inappropriate Comment about Shooting a Judge and for Lack of Candor
• Findings of Misconduct by a DEA Assistant Special Agent in Charge for Failure to Act in a Professional Manner, and by a DEA Special Agent in Charge for Favoritism and Providing False Statements to the OIG Concerning the Allegations Involving the ASAC
• Findings of Misconduct by a Senior DOJ Official for Ethical Misconduct, Sexual Harassment, Sexual Assault, and Lack of Candor to the OIG
• Findings of Misconduct by an FBI Official for Accepting Gifts From Members of the Media and for Lack of Candor
• Findings of Misconduct by an FBI Special Agent for Receiving Gifts from a Former FBI Confidential Human Source, Using the Source After Deactivation, Protecting the Source and the Source’s Illegal Business, Misusing FBI Assets for Personal Gain, Lack of Candor, and Computer Security Policy Violations
• Findings of Misconduct by an FBI Special Agent for Contacting Witnesses for an Improper Purpose, Divulging Law Enforcement Sensitive Information to Unauthorized Individuals, Providing Misleading Testimony, Providing False Information to the OIG, Mishandling Classified Information, and Misusing Government Devices and his Position
• Findings Concerning Misconduct by a U.S. Attorney for Having an Inappropriate Relationship with a Subordinate, Attempting to Influence or Impede an OIG Investigation, and Other Misconduct
• Findings of Misconduct by an FBI Assistant Special Agent in Charge For Submitting False Travel Vouchers, Lacking Candor, and Other Misconduct In Connection With His Relocation
• Findings of Misconduct by an AUSA for Improperly Receiving, Viewing, Copying, and Sharing Personally Identifiable Information of Coworkers, and Lacking Candor with Supervisors
• Findings of Misconduct by an FBI Unit Chief, Including Acceptance of Gifts from Vendors, Giving Preferential Treatment, and Misuse of Position
• Findings Concerning a DOJ Attorney Who Sent Harassing E-mails to Government Employees and Lacked Candor with the OIG

The list could go on and on and on, but you get the point. Indeed, the extraordinary thing about McCabe’s case compared to these ones is that the Justice Department appears to have engineered McCabe’s firing, ostensibly in response to the inspector general’s finding of a lack of candor, mere hours before his retirement eligibility. It’s true that the FBI routinely treats lack of candor as a fireable offense—but it remains unexplained why the Justice Department seemingly raced the clock in order to push McCabe out rather than proceed at the usual pace and note that he would have been subject to disciplinary proceedings if he had not retired. That alone is a vindictive level of harshness relative to the norm. Criminal prosecution is several standard deviations from the norm.

Perhaps one might argue that McCabe is differently situated from these people—a high-ranking FBI official whose example might plausibly serve as a deterrent to misconduct by others. But the reality is quite the opposite. The prosecution of McCabe would, indeed, send a message, but it would send a very different message from one of even-handed application of the rules to those high up on the totem pole.

Because, in fact, there are some substantially mitigating factors in McCabe’s case, even assuming that the facts are every bit as bad as the inspector general alleges. For one thing, the events took place during  a chaotic time at the bureau when the FBI was handling politically explosive investigations involving both Hillary Clinton and Donald Trump. Even if one doesn’t believe, as McCabe contends, that he was merely confused when he made the false statements, the intense pressure of the situation is mitigating. Moreover, McCabe did correct the record following his misstatements to the inspector general; a few days after the interview in question, he called up investigators and said he had been reflecting on his statement and believed he had erred.

There’s another problem with prosecuting McCabe. Justice Department policy dictates that prosecutors should bring a case only if they believe not only that the person is guilty of an offense but that “the admissible evidence will probably be sufficient to obtain and sustain a conviction.” Goldman’s story makes clear that the case here faces some significant evidentiary problems. The main one is named Lisa Page:

Among the witnesses called before the grand jury was Lisa Page, who worked closely for Mr. McCabe at the F.B.I. as his special counsel and later gained notoriety for text messages she exchanged with another F.B.I. official disparaging Mr. Trump. Mr. McCabe had authorized Ms. Page to speak with the Wall Street Journal reporter, but he told investigators on two occasions that he did not remember doing so. He later corrected himself.

Ms. Page told the grand jury that Mr. McCabe had no motive to lie because he was authorized as the deputy F.B.I. director to share the information with the newspaper. Her assertion could be damaging for prosecutors, who would have to prove that Mr. McCabe knowingly and intentionally lied to investigators.

It is, of course, possible that there is evidence that is not public yet. But rereading the inspector general report this morning and thinking about McCabe’s likely defense (that he was confused under the intense pressure of the circumstances), Page’s likely testimony, and the mitigating factors he will surely present, I find it hard to imagine a probability of conviction. To prosecute a case under these circumstances, in fact, seems so bizarre that you have to at least entertain the possibility that the explanation for the decision lies in something other than the merits of the case against the man.

You don’t have to look far for that explanation. Trump has been on a long-term and very public campaign of attacks on McCabe. It hasn’t been subtle. Just look here or here or here or here or here or here or here or here or here or here or here or here or here or here or here or here or here or here or here or here or here or here or here or here or here or here or here or here or here or here or here or here or here or here or here or here or here or here or here or here or here or here or here or here or here or here or here or here or here or here or here or here or here or here or here or here or here or here or here or here or here or here.

Only a month ago, even as the Justice Department was actively contemplating bringing charges, Trump tweeted, “Why didn’t Robert Mueller & his band of 18 Angry Democrats spend any time investigating Crooked Hillary Clinton, Lyin’ & Leakin’ James Comey, Lisa Page and her Psycho lover, Peter S, Andy McCabe, the beautiful Ohr family, Fusion GPS, and many more,  including HIMSELF & Andrew W?” One can only imagine what the nonpublic communications with the Justice Department might look like with respect to McCabe.

There’s another reason to fear that the McCabe case has been tainted by gross political pressure: The assistant U.S. attorneys who are working the case keep dropping off of it. Goldman reports:

One of the lead prosecutors, Kamil Shields, was unhappy with the lengthy decision-making process and has since left the Justice Department for private practice. Ms. Shields declined to comment.

Another prosecutor, David Kent, also left the case recently. It is not clear why he departed but it would be an unusual move if prosecutors were indeed planning to charge Mr. McCabe.

I’ve watched the Justice Department for a long time. I am not quick to allege that a prosecution is political. I believe in a presumption of regularity with respect to Justice Department activity. If an indictment proceeds against McCabe, as I suspect it will, I will both presume his innocence and presume that the prosecutors who put their names on the document have a good faith basis for doing so, that they believe they can prove their case before a jury in the District of Columbia beyond a reasonable doubt. I’ll wait to form a final judgment until I see the voluminous discovery I expect McCabe will seek on White House pressure on the Justice Department. And I will wait to see the evidence presented at trial.

But I would be lying if I said that, as I look at it now, it all seems on the level to me. I worry that what’s happening here is simple corruption of the Department of Justice in precisely the fashion I have been worrying about since before Donald Trump was even elected. Back in May 2016, I warned about precisely this kind of investigation and prosecution:

What would a president need to do to shift the Justice Department to the crimes or civil infractions committed—or suspected—by Trump critics and opponents? He would need to appoint and get confirmed by the Senate the right attorney general. That's very doable.

He'd want to keep his communications with that person limited. An unspoken understanding that the Justice Department's new priorities include crimes by the right sort of people would be better than the sort of chortling communications Richard Nixon and John Mitchell used to have. ...

Certainly, a bunch of pesky, scrupulous [assistant U.S. attorneys] might have to go. But that's not a problem. Make the environment hostile enough, and law firm life will start to look very attractive to them.

Yes, Trump might develop a problem with our redoubtable FBI director, who doesn't leave with the outgoing administration and has stared down a president once before. But so what? ... Comey will not be there forever anyway. And even without the FBI, and even using only the discretion it lawfully has, the Justice Department has remarkable fangs to bare when it chooses to bare them.

I fear this is all precisely what is happening here—down to the pesky assistant U.S. attorneys who have to go and find law firm life suddenly attractive (Kamil Shields is now practicing law at Sullivan & Cromwell).

I just never imagined that the target for harassment by the Justice Department would be the FBI brass itself.