Andrew McCabe and the DOJ's Clinton-Trump dichotomy

With the Mueller report behind us and the possibility that Andrew McCabe will be prosecuted still lingering, Andrew McCarthy offers an overview of what justice looks like these days. In the piece published today at NRO, McCarthy makes the best case I’ve seen that the divergent treatment of Hillary and her associates versus Trump and his associates by the DOJ. Case in point, the treatment of Andrew McCabe now compared to the treatment of Gen. Michael Flynn and others connected to Trump not long ago:

McCabe is feeling the heat because the evidence that he made false statements is daunting. So daunting, in fact, that even he concedes he did not tell the truth to investigators. Listen carefully to what he says about the case — there being no shortage of public commentary on it from the newly minted CNN analyst. He never “deliberately misled anyone,” he insists. Sure, he grudgingly admits, some of his statements “were not fully accurate,” or perhaps were “misunderstood” by his interrogators. But “at worst,” you see, “I was not clear in my responses, and because of what was going on around me may well have been confused and distracted.”


Seems to me that General Michael Flynn “may well have been confused and distracted,” too. After all, it was on Flynn’s insanely busy first full day on the job as the new president’s national-security adviser that McCabe and Comey dispatched two agents — Peter Strzok and Joe Pientka — to brace him for an interview.

As our Rich Lowry recounts, Comey later bragged to an audience of like-minded anti-Trumpers at the 92nd Street Y that he knew this was a breach of protocol. Because seeking to interview a member of the president’s staff in a criminal investigation is a big deal, the Bureau is supposed to go through the attorney general, who alerts the White House counsel. That ensures that the administration is aware of the situation, and that the suspected staffer is advised of the reason for the interview and given an opportunity to consult with a lawyer.

But Comey and McCabe bypassed all of that on the grounds that Flynn may have violated the Logan Act, a law that might as well not exist since it has never been used to successfully prosecute anyone. And it wasn’t just Flynn who got this treatment. Mueller prosecuted George Papadopoulos for lying while the DOJ gave Paul Combetta a pass:

Combetta was not prosecuted even though he brazenly lied to the FBI about the circumstances of his destruction of Clinton’s private emails. He was the key witness who had been in communication with Clinton confederates before and after his bleach-bit blitz through Clinton’s emails. In a normal case, prosecutors would charge him with obstruction and false statements to pressure him into cooperating. In the Clinton caper, though, he was given immunity . . . and duly clammed up.

And of course, Cheryl Mills told Peter Strzok during her FBI interview that she didn’t know Hillary had a private server until after Clinton left office. That conveniently coincided with when Mills became Clinton’s lawyer again. So she didn’t know anything while Clinton was in office and anything she knew thereafter was privileged. In fact, during her FBI interview Mills claimed she wasn’t sure she knew what a server was (shades of Hillary saying “Wipe it with a cloth?”) But an email Mills wrote in 2010 said, “FYI – hrc email coming back – is server okay?”

In short, there was plenty of evidence Mills lied and that Combetta lied, but the DOJ didn’t seem hot to charge them and see what they might offer prosecutors as happened with Flynn and Papadopoulos. McCarthy concludes: “In a better world, I’d prefer to take account of the considerable positive side of McCabe’s ledger and what he’s already suffered, especially if he exhibited some contrition. That is, I’d ordinarily be open to declining prosecution. But then, how about the positive side of General Flynn’s ledger?”

Put another way, why does McCabe deserve the Hillary treatment when others with equally long records of public service received the Trump treatment for their mistakes?