On Friday, J.P. Cooney, the Chief of DoJ’s Public Fraud and Corruption Section, sent a memorandum to Michael Bromwich, Andrew McCabe’s lawyer, stating that “the Government has decided not to pursue criminal charges” against McCabe stemming from a referral from the DoJ inspector general in 2018 concerning illegal leaks to the media and lying about it.
NEW: DOJ won’t pursue criminal charges against former FBI Deputy Dir. Andrew McCabe: "Based on the totality of the circumstances and all of the information known to the Government at this time, we consider the matter closed.” https://t.co/97JW3IKhMW pic.twitter.com/ggXMQzFrhY
— Dan Linden (@DanLinden) February 14, 2020
That decision has generated much consternation among independent journalists and conservative commentators, as the public evidence was pretty clear that McCabe committed the acts of which he was accused (he even ADMITTED to FBI investigators that he lied to them multiple times!). Just to review, DoJ IG found that McCabe lied multiple times – including at least three times under oath – on 31 Oct 2016, 9 May 2017, 28 July 2017, and 27 Nov 2017. McCabe also blamed two FBI Executives (the head of the Washington Field Office & the Head of the New York Field Office) for his own leaks.
What are the possibilities in explaining that decision? There are several that have been bandied about since the decision was announced. Let’s make a deal:
Door #1. The prosecutors assigned to the case were corrupt and only half-heartedly presented evidence to the grand jury, which failed to deliver an indictment. The pessimists – and gaslighters – are sure that this is the reason since the evidence on the public record alone was so apparently damning.
Door #2. The prosecutors presented the evidence in good faith, but the DC-area grand jury (filled with politically-aware Democrats as they all are) simply refused to indict a demonstrably high-profile anti-Trump figure like McCabe. This is a troubling possibility, but one could simply point to the trial jury in Greg Craig’s trial as evidence of similar political taint in DC-area juries. That fact would explain AG Barr’s decision to move politically-charged cases outside DC, as well as to initiate external reviews of a few ongoing cases in the US attorney’s office in DC.
Door #3. For whatever reason, the prosecutors could not get an indictment and decided to let the departmental sanctions against McCabe ride as sufficient punishment. That might seem like a pretty weak option, but a friend of mine with deep connections in federal law enforcement weighed in with supporting rationale that makes a lot of sense.
In his opinion,
McCabe broke departmental guidelines more than clearly violating the perjury statute.
As a former whistleblower myself, I can attest to the fact that not being truthful to an IG is a “misstatement of fact,” not criminal perjury. If I gave the IG a purposeful misstatement, I could not have been in jeopardy of perjury. Federal IGs are not federal law enforcement (LE) when acting in an IG role even if they’re credentialed LE. IGs don’t do criminal investigations; they investigate agency regulation violations. If they suspect criminal violations, those are referred to jurisdictional LE. McCabe violated agency policy, including misstatements of fact, and was severely sanctioned with termination for cause, loss of all pay and benefits, and loss of pension. Not a wrist slap by any means. Even the folks that I got fired kept their retirements.
Lastly, if McCabe was indicted and convicted, as a first offender, he’d likely get probation and have retained his pension. The agency sanction is worse; which is likely why Sessions went that route.
I believe Door #3 is the correct assessment, and that no DC-area grand jury was going to indict the high-profile McCabe.
McCabe and his lawyer were quick to bray their know-it-all condescension that this decision was inevitable. McCabe chose to spin the whole case as “political retribution” in line with the Democrats’ current strategy to paint AG Barr’s DoJ as “hopelessly subservient to President Trump’s political interests.” Here is a quote from McCabe on CNN on Friday: “The pursuit of political enemies and the use of the political justice system and criminal investigations to exact some sort of revenge on those political enemies is not something that should be happening in the United States.”
Whatever. Those are pretty brave words coming from a man who still faces serious legal jeopardy for signing off on at least one of those false FISA warrant applications on Carter Page. It will be a lot easier to indict him for defrauding the Foreign Intelligence Surveillance Court since his signature is on one of those applications than it apparently was in convincing a DC-area grand jury that his “misstatement of facts” was indeed perjury.
Oh, and the Spygate grand jury is likely to be up and running in Connecticut, not DC, Andrew. Good luck with that (not).