Diary

Why Has Robert Mueller Not Indicted Andrew McCabe?

Outgoing FBI director Robert Mueller speaks during an interview at FBI headquarters on Wednesday, Aug. 21, 2013, in Washington. The nature of terrorism has changed in Robert Mueller’s dozen years as FBI director, but his concerns for the future are much the same as when terrorists struck on Sept. 11, 2001, merely a week after he’d taken over the bureau. (AP Photo/Evan Vucci)

Jonathan Turley recently noted something interesting on his eponymous blog; Former/Fired FBI Deputy Director Andrew McCabe’s defense (as recounted in his Op-Ed in the Washington Post) against charges of “lack of candor”, i.e. lying, to investigators is identical to that of General Michael Flynn.

At worst, I was not clear in my responses, and because of what was going on around me may well have been confused and distracted — and for that I take full responsibility.

Note that McCabe, a lawyer himself, apparently had access to legal counsel and knew that he was being questioned as part of an investigation. Flynn, on the other hand, was not aware that he was being questioned by investigators as part of a possible criminal inquiry.

Yet, the only consequence McCabe has suffered is that of being fired, and he faces a lifetime of being treated like a hero in the tonier neighborhoods of DC and New York, while Michael Flynn is facing jail time after being bled financially until he could no longer afford to defend himself, forcing him to sell his house to settle his legal fees.

Interestingly, the same people who celebrate Michael Flynn’s indictment and eventual guilty plea, (and are joyful at the loss of his home) are not quite as exercised about Andrew McCabe committing the same crime. In fact, from folks on the Right like Ms. Susan Wright of RedState, to people on the Far Left like Andrea Mitchell of NBC, the word is that McCabe is the innocent victim of a “hit job” at the behest of the President, and not the result of an investigation and recommendations by career DOJ and FBI staff.

One can understand such animus inspired inconsistencies by commentators, but, per Turley, prosecutors are bound by different rules;

Prosecutors are under a sworn duty to apply laws faithfully and fairly.  They are not allowed to simply charge any crime that is convenient. They must be able to attest to applying the criminal code in a consistent fashion.  Prosecutors are ethically bound to reject criminal charges (even when they can be technically brought) where they reflect “unwarranted disparate treatment of similarly situated persons.

Which leads me to ask … why has Special Counsel Robert Mueller not brought an indictment against McCabe before the Grand Jury, especially given the identical nature of the crime committed by both men?

As Mueller’s numerous admirers never fail to joyfully remind the world, Mueller’s appointment letter gives him a mandate that extends well beyond collusion, Russia and the 2016 Elections. It even extends beyond the 4th and 5th Amendments and the requirement to show probable cause. His mandate covers *everything.* To quote one of them;

Mueller has been given the authority to go after ANY wrongdoing. The scope of his investigation is not limited to the very narrow avenue of ‘collusion.’ It’s not even limited to Russia. ANY means ANY wrongdoing.

By this, it is clear that McCabe’s lack of candor falls within Mueller’s mandate for prosecution. His authority is without limit, and therefore McCabe, who even meets the unnecessary threshold of a link with the President, having met and spoken to Trump – thereby linking them – should be facing the same legal jeopardy as Michael Flynn.

So where is the Mueller indictment of Andrew McCabe?