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.
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.
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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. ...