Could Andrew McCabe face prosecution for obstruction of justice? He could, Benjamin Wittes writes at Lawfare today, but the real question is whether he should. Wittes sees the writing on the wall for an indictment, which he assumes is now unavoidable, but doesn’t see a winnable case. If that’s true, then it calls into question what motives the Department of Justice would have in indicting McCabe.
First, Wittes fully expects an indictment to drop soon, based on the New York Times’ description of meetings between the US Attorney and McCabe’s lawyers. Those meetings usually mean one thing:
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.
Wait a minute, readers will object, the Inspector General made a criminal referral on McCabe! That’s true, and it certainly seems like a militating factor in pursuing an indictment. Wittes doesn’t mention the referral, although he does argue that Michael Horowitz’ report seems “very far from a criminal case.” It wasn’t so far as to keep Horowitz from referring the case to prosecutors, a point that Wittes neglects. Maybe there’s a procedural reason why an IG would make a criminal referral even if there’s no potential for prosecution, but Wittes doesn’t provide any such explanation, which seems like a significant lacuna in this part of his argument.
On the other hand, that referral was sixteen months ago, which makes a prosecution at this point curious, at least. Wittes also makes a pretty good point about the rarity of such prosecutions, producing a list of similar cases where the OIG’s findings resulted in no such action. That raises questions about motives at the DoJ, as does the way in which McCabe was fired just hours before his retirement. All of that will make it more difficult for prosecutors to press a case, but Wittes thinks McCabe has other mitigating factors that will preclude a prosecution:
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. …
It is, of course, possible that there is evidence that is not public yet. But rereading the inspector general report this morning and thinking about McCabe’s likely defense (that he was confused under the intense pressure of the circumstances), Page’s likely testimony, and the mitigating factors he will surely present, I find it hard to imagine a probability of conviction. To prosecute a case under these circumstances, in fact, seems so bizarre that you have to at least entertain the possibility that the explanation for the decision lies in something other than the merits of the case against the man.
Wittes also points to the unusual departure of lead attorneys dealing with the McCabe matter as a reason to suspect that politics might be in play. The New York Times noted the exits as well:
But what should have been a seemingly straightforward case with a limited number of witnesses and facts has dragged out amid internal deliberations. It has been under investigation for so long that the term expired for the grand jury hearing evidence. One of the lead prosecutors, Kamil Shields, was unhappy with the lengthy decision-making process and has since left the Justice Department for private practice. Ms. Shields declined to comment.
Another prosecutor, David Kent, also left the case recently. It is not clear why he departed but it would be an unusual move if prosecutors were indeed planning to charge Mr. McCabe.
Wittes pledges to keep an open mind, but an indictment would smell political under the circumstances:
I’ll wait to form a final judgment until I see the voluminous discovery I expect McCabe will seek on White House pressure on the Justice Department. And I will wait to see the evidence presented at trial.
But I would be lying if I said that, as I look at it now, it all seems on the level to me.
Fair enough, although one has to wonder whether the same can be said about the obstruction cases brought by the FBI in Russiagate to the special counsel as well. Horowitz will have more to say about that in his upcoming report on the investigation, but it certainly seemed as if those prosecutions stretched a bit in service of an investigation that targeted the Trump team — and their failure to find anything of significance on the collusion theory makes that look more and more political, too. Wittes links back to a post he wrote in May 2016 about how the DoJ could be twisted into a political operation, but he doesn’t draw the potential dots that it might have already been happening at that time — and that McCabe was part of that process.
Nevertheless, we can all agree — I hope — that such politicization is bad, both conceptually for fairness and justice, and also in concrete terms for personal liberty. A DoJ employed as a hit squad on political opponents would turn us into a banana republic. The question remains whether that’s what we have at the DoJ, and if so, when it started. A McCabe indictment might be a good wake-up call to that threat, and it deserves strict scrutiny.