“Remember kids,” said Drew McCoy in reaction to this news, “if you want to lie to the FBI it’s important you work for the FBI. Otherwise you’ll get in big trouble.” Somewhere Mike Flynn and Roger Stone are nodding.
Two points up front in light of this post a few hours ago. One: The president’s going to have a fit, to put it mildly. WaPo reported yesterday that the new DOJ recommendations of light sentences for Mike Flynn and Roger Stone aren’t nearly as important to him as seeing political enemies like James Comey and Andrew McCabe prosecuted. He was irate when no charges were filed against Comey; he’ll be climbing the walls watching McCabe skate too. But like I said in the earlier post, there’s only so much Bill Barr can do with the evidence he has. No doubt he’s willing, maybe even eager, to haul Trump’s antagonists into court. (He’s the patron saint of the Durham investigation, isn’t he?) But if he doesn’t think a conviction’s possible, he’s stuck.
Which brings us to the other point. Does this explain Barr’s sudden eagerness to intervene in the sentencing of Flynn and Stone? He must have had some inkling over the past few weeks that McCabe wouldn’t be charged before today’s announcement made it official. He knew what Trump’s reaction would be. He may have feared, not incorrectly, that his job would suddenly be in peril when the news broke, with Trump lambasting him on Twitter a la Jeff Sessions as an AG who just couldn’t deliver what the president wanted of him. Maybe he tried to get out in front of his problem by wading into the Flynn and Stone cases, hoping that a turn towards leniency for them by the DOJ would soften the blow to Trump once he heard the news about McCabe getting off.
I don’t think it’s going to soften it much.
DOJ tells former Acting Director of the FBI Andrew McCabe that it will not pursue charges against him. pic.twitter.com/imAyjZs9Nq
— Jake Tapper (@jaketapper) February 14, 2020
What happened here, exactly? Could it be that Jessie Liu, the now-departed former U.S. Attorney of the D.C. office that investigated McCabe, was somehow in his corner? No, not according to the NYT: They reported back in September that she and her deputies all recommended charges against McCabe, even after his lawyers met with them and pleaded their case for why none should be filed. Another wrinkle is the fact that a grand jury was called in this case and convened more than once, although there was an odd months-long gap between sessions last year. DOJ lawyers informed McCabe’s attorneys last fall that he should expect to be charged, something prosecutors usually say right before an indictment is issued. But … no indictment followed this time. Legal observers were left scratching their heads at the time at reports that the grand jury had met again and nothing had happened. McCabe’s lawyers heard through the grapevine that they had refused to hand down an indictment — an all but unhead-of occurrence — and wrote to Liu in September asking for confirmation:
Just in: Andrew McCabe’s legal team says in a new letter to Jesse Liu that based on their conversations with the US Attorney’s office in DC yesterday, “it is clear that no indictment has been returned” against McCabe by the grand jury. pic.twitter.com/XtMTelYqEv
— Natasha Bertrand (@NatashaBertrand) September 13, 2019
They got no reply. “A grand jury will indict a ham sandwich if the prosecutor asks it to,” goes the old legal adage. If the DOJ couldn’t meet the “ham sandwich” threshold in this case, even with the D.C. office willing to go forward with charges, what might be the reason? Did the grand jury cut McCabe a break because of his FBI service? Or were they sticklers about the law in this case, which isn’t normally applied to the circumstances in which McCabe lied?
Hints of the case’s weakness had emerged. One prosecutor assigned to the case recently left, an unusual step so close to a potential indictment. Another departed for a private law firm and has expressed reservations about how the case was handled.
A key witness testified that Mr. McCabe had no motive to lie because he was authorized as the F.B.I.’s deputy director to speak to the media, so he would not have had to hide any discussions with reporters. Another important witness testified he could not immediately remember how the leak unfolded. Both would have been crucial to any prosecution.
Additionally, people who are charged with lying to the F.B.I. are typically accused of committing the offense in the course of a criminal investigation, not an administrative inquiry. For example, Mr. Horowitz determined last year that a senior Justice Department official committed wrongdoing by viewing pornography on his work computers and then providing false statements to investigators, but prosecutors declined to bring charges.
Right, right, but still. What about the “ham sandwich” standard? This is a moment when we need FBI director James Comey to burst through the wall and violate half a dozen different DOJ norms by telling us exactly what happened in the secret grand jury proceedings. Without him, we’re left to wonder.
There’s another interesting line in the Times report: “The president’s relentless criticism of the Justice Department likely complicated the prosecution of Mr. McCabe.” No doubt Trump’s endless tweeting about McCabe would have been exploited at trial by the defense, citing it as proof that McCabe’s prosecution was a political vendetta by the president being carried out by his deputies at the DOJ. That couldn’t have influenced the grand jury, though, since the defense’s attorneys aren’t in the room for those proceedings. Is it possible that, instead of the grand jury declining to indict McCabe, the DOJ quietly abandoned the prosecution in the expectation that Trump’s public grudge might make McCabe unconvictable at trial? I’m thinking of Bill Barr telling ABC yesterday that Trump’s tweets are making it impossible for him to do his job. Maybe there was more to that sentiment than we realized at the time.
One more question. If, per the rumors, the grand jury declined to indict McCabe last September, why is he only hearing today that he’s in the clear? Maybe the DOJ went back to the drawing board afterward and looked for a different path towards obtaining an indictment, only finally abandoning it now. According to Lawfare, prosecutors are free to take a shot with a second grand jury at indicting someone whom the first grand jury refused to indict so long as the U.S. Attorney approves. That would have been tricky in a politically charged case like this, though; if news leaked that the first grand jury had refused to indict and then Barr and the D.C. office pressed ahead with a second try at indictment, critics would have savaged him for pursuing a political grudge on Trump’s behalf.
It could be that the timing is a byproduct of the Stone sentencing fiasco. Possibly the DOJ was planning to inform McCabe soon-ish that he wouldn’t be charged and then all hell broke loose over Stone, with Barr attacked as a political hack. Barr needed something quickly that would prove that he’s not doing Trump’s bidding. Voila — the news that McCabe was free was hurried up and released.
Here’s McCabe taking a subdued victory lap on (where else?) CNN.
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
Update: This news is also breaking this afternoon. A make-up call by the AG for the president?
Attorney General William P. Barr has assigned an outside prosecutor to scrutinize the criminal case against President Trump’s former national security adviser Michael T. Flynn, according to people familiar with the matter.
The review is highly unusual and could trigger more accusations of political interference by top Justice Department officials into the work of career prosecutors.
Mr. Barr has also installed a handful of outside prosecutors to broadly review the handling of other politically sensitive national-security cases in the U.S. attorney’s office in Washington, the people said.
Once again, Barr has much more power to make sure Trump’s friends don’t spend a long stretch (or any stretch) in prison than he does to put his enemies in there.