On Friday, we covered the Justice Department's decision not to pursue criminal charges against former Deputy FBI Director Andrew McCabe. McCabe had been fired for cause by career ethics officials at DOJ, following the nonpartisan Inspector General's finding that he had lied under oath on multiple occasions regarding his own leaking to the press. The case had been referred for potential prosecution, but the department ultimately chose to take a pass. Why? Writing at National Review, Andy McCarthy -- a longtime federal prosecutor -- thoroughly reviews the case and takes a stab at a few reasons that may have contributed to this decision. Before I get to those theories, I please enjoy this small nugget about the leak/lie saga, which I had not read before:
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.
McCarthy recounts in detail how the case against McCabe is airtight, at least insofar as it's impossible to credibly deny that he'd lied under oath -- which is what the IG found, prompting McCabe's firing. So why allow this former powerful official to get away without charges? McCarthy runs through a host of possible factors, including internal DOJ politics, a tough (anti-Trump) DC jury pool, hostile (also anti-Trump) witnesses, and other complications. It would have been a politically-fraught case that would have been tough to win. Plus, McCarthy notes, McCabe isn't exactly vindicated or in the clear:
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.
It's the 'two tiers' issue that has so many Trump supporters seeing red. Hillary evaded charges for clear violations of the espionage act, then the Justice Department waved off potentially-criminal misconduct from both James Comey and now McCabe. On the other hand, some Trump allies get the book thrown at them for at least similar violations (McCarthy addresses this point in the piece excerpted above, plus here and here). It's quite clear that the president is none too pleased with how this is playing out:
IG report on Andrew McCabe: Misled Investigators over roll in news media disclosure...Lacked Candor (Lied) on four separate occasions...Authotized Media Leaks to advance personal interests...IG RECOMMENDED MCCABE’S FIRING. @FoxNews @IngrahamAngle— Donald J. Trump (@realDonaldTrump) February 15, 2020
As I mentioned last week, between the Attorney General's public rebuke of Trump, and his decisions to spare Comey and McCabe the ordeal of facing charges, the (growing) Barr derangement movement seems a bit ridiculous. If he were the hopelessly compromised presidential hatchet man that his critics allege he is, he wouldn't have hurled some chin music at Trump on national television, and the two of the FBI's top former leaders would be staring down the barrel of indictments. But that's not the case. I do wonder if Barr may be angling at something else here: Is there a common thread that connects the Barr DOJ's determinations to (a) forego charges on Comey and McCabe (b) to take a step back from a draconian sentencing recommendation in the Roger Stone case, and (c) to review the Michael Flynn case (important details of which are also rehearsed in McCarthy's column)?
Perhaps Barr sees a dysfunctional and unhealthy status quo that is shot through with politics -- this context is crucial -- and is taking steps to de-escalate things a bit. In spite of the prevailing, often-hysterical story about Barr peddled by his detractors and partisans, there's a strong case to be made that Barr is operating as one of the few responsible actors in Washington. He knows this is the final stop of his career, having served as AG under two different presidents. I believe him when he says he's unafraid of media criticism, Democratic caterwauling, and yes, presidential histrionics. I'll leave you with McCabe shamelessly claiming victimhood in a media tour of the network that employs him:
Andrew McCabe: “As glad as I am that the DoJ and the DC attorney’s office finally decided to do the right thing today, it’s an absolute disgrace that they took 2 years and put my family through this experience for two years before they finally drew the obvious conclusion." pic.twitter.com/T8x7drbukU— Tom Elliott (@tomselliott) February 14, 2020
A proven liar complaining about being thought of as a liar -- and lecturing others about 'absolutely disgraceful' conduct. Perfect.