Former FBI Deputy Director and Acting Director Andrew McCabe appears likely to be prosecuted. McCabe should be prosecuted. Here is why he deserves prosecution on charges of lying to investigators. Here’s what we know. Deputy Attorney General Jeffrey Rosen has rejected a request by McCabe to block prosecution. U.S. Attorney for the District of Columbia Jessie Liu recommended prosecuting McCabe. This comes from Foxx reporting Thursday last week.
The same set of laws applies to all
This is the right decision by Rosen and Liu. The American people need to be reassured. America is a nation of laws. The same set of laws applies to us all. The rules the FBI applies to the rest of us apply equally to its own agents and lawyers.
The DoJ Inspector General, Michael Horowitz released a report on the matter last year. In it the report the conclusion is McCabe was not honest. He lied to then-FBI Director James Comey, to other FBI agents, and to officials of the Office of the Inspector General. He lied about leaks to a Wall Street Journal reporter.
What McCabe lied about
McCabe made unauthorized disclosures about the FBI’s investigation into the Clinton Foundation. He then lied about it when questioned about his actions. That includes lying under oath to the inspector general, Horowitz’s report said.
The inspector general’s report says, “law enforcement sensitive information” about the Clinton investigation was disclosed in an Oct. 20, 2016, Wall Street Journal article. Until publication of that article, the FBI was following procedure not confirming whether there was an ongoing investigation. Refusal to confirm an ongoing investigation is normal procedure.
He lied repeatedly
McCabe disclosed a communication he had received. It came from a DoJ official expressing his concerns over the FBI investigation into the Clinton Foundation. Specifically the concern was that it was happening during the election, the inspector general’s report found. The IG report said Comey made inquiry of McCabe about the article. McCabe told Comey that he had had not given authorization for the disclosure and didn’t know who did.
McCabe repeated that lie to agents from the FBI’s Inspection Division. He repeated the lie to the Office of the Inspector General when questioned about it. In a second round of questioning by the inspector general McCabe admitted he was responsible for the disclosure.
Misconduct
It isn’t just that McCabe lied to investigators, including when he was under oath. The IG also says that McCabe was engaging in “misconduct.” It is misconduct because the design of the disclosure was to advance his personal interest. He did so at the expense of department leadership. McCabe should be prosecuted.
He knew and did it anyway
The point is this: lying to a federal agent is a felony under 18 U.S.C. §1001. That is the exact statute under which Special Counsel Robert Mueller prosecuted former National Security Adviser Michael Flynn. They charged Flynn for lying to FBI agents who interviewed him. They questioned him about conversations he had with the Russian ambassador. The questions were from when Flynn was part of the Trump transition team.
You can violate this law even if you are not under oath at the time you were interviewed. Flynn wasn’t under oath during questioning. This makes McCabe’s behavior arguably even worse. McCabe was under oath during questioning by the IG. Worse yet, he held the second-highest post in the most powerful law enforcement agency in the government.
In a leadership position
McCabe, more than an ordinary citizen, knew the importance of this law. He knew he had a duty to tell the truth during questioning. He knew unauthorized leaks that could compromise an open law enforcement investigation. To believe he misremembered or temporarily forgot is not credible.
Holding McCabe to account is an important first step. It sends a loud and clear message: no one is above the law. If there is no prosecution, the message would be there is one set of laws for the FBI and DoJ and another set for the rest of us.
That would be legally indefensible. Providing that kind of immunity to law enforcement officials would be dangerous. They must be accountable for their actions. Adherence to both the spirit and the letter of the law is their duty and responsibility.
Conclusion
Anything else will inevitably lead to corruption and abuse of power. McCabe is presumed innocent unless and until proven guilty beyond a reasonable doubt. But charging him is the right thing to do. McCabe should be prosecuted because he deserves his day in court and America needs to see him there.