{"id":127478,"date":"2019-08-31T18:02:06","date_gmt":"2019-08-31T22:02:06","guid":{"rendered":"https:\/\/stateofthenation2012.com\/?p=127478"},"modified":"2019-08-31T18:07:54","modified_gmt":"2019-08-31T22:07:54","slug":"127478","status":"publish","type":"post","link":"https:\/\/stateofthenation2012.com\/?p=127478","title":{"rendered":"How is Andrew McCabe avoiding prosecution and even suing the DoJ for his own negligence?"},"content":{"rendered":"

What Is Justice for McCabe?<\/strong><\/h1>\n

By ANDREW C. MCCARTHY
\nNATIONAL REVIEW<\/p>\n

\"\"<\/a>

Acting FBI Director Andrew McCabe testifies before the Senate Select Committee on Intelligence, May 11, 2017. (Eric Thayer\/Reuters)<\/p><\/div>\n

The former deputy director\u2019s FBI coddled Clinton and addled Trump. Now he seeks clemency . . . even as he sues the Justice Department.<\/span><\/h3>\n

H<\/span>illary Clinton checked every box for a violation of the Espionage Act. So much so that, in giving her a pass, the FBI figured it better couch her conduct as \u201cextremely careless,\u201d rather than \u201cgrossly negligent.\u201d The latter description was stricken from an earlier draft of then-director James Comey\u2019s remarks because it is, verbatim, the mental state the statute requires for a felony conviction. It wouldn\u2019t do to have an \u201cexoneration\u201d statement read like a felony indictment.<\/p>\n

In point of fact, the careless\/negligent semantic game was a sideshow. Mrs. Clinton\u2019s unlawful storage and transmission of classified information had been patently willful. In contemptuous violation of government standards, which she was bound not only to honor but to enforce as secretary of state, she systematically conducted her government business by private email, via a laughably unsecure homebrew server set-up. Her Obama administration allies stress that it was not her purpose to harm national security, but that was beside the point. The crime was mishandling classified information, and she committed it. And even if motive had mattered (it didn\u2019t), her purpose was to conceal the interplay between her State Department and the Clinton Foundation, and to avoid generating a paper trail as she prepared to run for president. No, that\u2019s not as bad as trying to do national-security harm, but it\u2019s condemnable all the same.<\/p>\n

While Clinton\u2019s mishandling of classified information got all the attention, it was just the tip of the felony iceberg. Thousands of the 33,000 emails she withheld and undertook to \u201cbleach bit\u201d into oblivion related to State Department business. It is a felony to misappropriate even a single government record. The destruction of the emails, moreover, occurred after a House Committee investigating the Benghazi massacre\u00a0issued subpoenas and preservation directives<\/a>\u00a0to Clinton\u2019s State Department and Clinton herself. If Andrew Weissmann and the rest of the Mueller probe pit-bulls had half as solid an obstruction case against Donald Trump, the president would by now have been impeached, removed, and indicted.<\/p>\n

And that dichotomy is the point, isn\u2019t it?<\/p>\n

In the Obama Justice Department \u2014 as extended by the Mueller investigation, staffed by Obama Justice Department officials and other Clinton-friendly Democrats \u2014 justice was dispensed with a partisan eye. If you were Hillary Clinton, you skated. If you were Donald Trump, they were determined to dig until they found something \u2014 and, even when they failed to make a case, the digging never stopped . . . it just shifted to Capitol Hill.<\/p>\n

No one knows the skewed lay of the land better than Andrew McCabe.<\/p>\n

The FBI\u2019s former deputy director is in the Justice Department\u2019s crosshairs. His lawyers are reportedly pleading with top officials not to indict him for lying to FBI agents who were probing a leak of investigative information, orchestrated by none other than McCabe.<\/p>\n

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 \u2014 there being no shortage of public commentary on it from the newly minted CNN analyst. He never \u201cdeliberately\u00a0<\/em>misled anyone<\/a>,\u201d he insists. Sure,\u00a0he grudgingly admits<\/a>, some of his statements \u201cwere not fully accurate,\u201d or perhaps were \u201cmisunderstood\u201d by his interrogators. But \u201cat worst,\u201d you see, \u201cI was not clear in my responses, and because of what was going on around me may well have been confused and distracted.\u201d<\/p>\n

Uh-huh.<\/p>\n

Seems to me that General Michael Flynn \u201cmay well have been confused and distracted,\u201d too. After all, it was on Flynn\u2019s insanely busy first full day on the job as the new president\u2019s national-security adviser that McCabe and Comey dispatched two agents \u2014 Peter Strzok and Joe Pientka \u2014 to brace him for an interview.<\/p>\n

As our Rich Lowry recounts<\/a>, 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\u2019s 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.<\/p>\n

Of course, if protocol had been followed, McCabe would not have been able to have Flynn grilled without preparation and without counsel. That put Flynn in a very different posture from Hillary Clinton.<\/p>\n

She got every courtesy. The FBI not only scheduled her interview well in advance; before she showed up, before they asked her a single question, they had already finished drafting Comey\u2019s statement exonerating her. Not just that. Clinton was permitted to bring along \u2014 among her phalanx of lawyers \u2014 her State Department aides Cheryl Mills and Heather Samuelson, key witnesses who had gotten immunity from prosecution. (In a real investigation, they\u2019d have been considered\u00a0subjects<\/em>, not witnesses.) Allowing witnesses to sit in as lawyers was not just a violation of Justice Department practice (to say nothing of common sense).\u00a0Federal criminal law<\/a>prohibits former officials from lobbying the government on behalf of another person in a matter in which the former official was heavily involved while working for the government.<\/p>\n

Recall that when he decided against an indictment of Clinton, Comey famously pronounced that \u201cno reasonable prosecutor<\/a>\u201d would charge her. Even though Clinton\u2019s conduct technically transgressed the law, the then-director rationalized that he could find no prior Espionage Act prosecution for gross negligence on facts analogous to Clinton\u2019s case.<\/p>\n

Where exactly would we expect find analogous facts? Not much precedent about secretaries of state sedulously setting up non-government communications systems for years of correspondence involving\u00a0thousands<\/em>\u00a0of classified communications. But let\u2019s put this historical anomaly aside. Let\u2019s even ignore that\u00a0military officials have been prosecuted<\/a>\u00a0for less-egregious classified-information violations. Here\u2019s the point: In giving Clinton a pass, Comey explained that \u201cresponsible\u201d prosecutorial decisions \u201cconsider the context of a person\u2019s actions, and how similar situations have been handled in the past.\u201d<\/p>\n

Okay . . . then how is it that General Flynn gets investigated and charged?<\/p>\n

Flynn, as a member of Trump\u2019s transition team and incoming national-security adviser, had been consulting with the Russian ambassador, among other foreign counterparts.\u00a0Context?<\/em>\u00a0There was nothing illegal or illegitimate about such communications. And even if it had been appropriate for the FBI and the Justice Department to inquire into the foreign policy of the incoming president elected by the American people, the Bureau did not need to interview Flynn. They had recordings of the conversations. What reason could there have been to question Flynn about them \u2014 without playing the recordings for him \u2014 except to lay the groundwork for a false-statements prosecution?<\/p>\n

Moreover,\u00a0how have similar situations been handled in the past?<\/em>\u00a0In investigating Flynn, the Obama Justice Department and the FBI theorized that he might have violated the Logan Act, a dubious law that purports to criminalize foreign policy freelancing by private citizens. Despite being on the books for over two centuries, the Logan Act has\u00a0never<\/em>\u00a0resulted in a successful prosecution. Not once. In fact, it has not even been used to indict anyone in\u00a0the last 170 years.<\/em>\u00a0Indeed, but for its desuetude, the Logan Act would certainly have been held unconstitutional; because the Justice Department never invokes it, no one has had the opportunity to challenge it. Yet, the Logan Act was used to justify investigating Flynn \u2014 a transition official whose very job entailed consultation with foreign officials.<\/p>\n

As we noted a few days ago<\/a>, the FBI and Mueller\u2019s investigators prosecuted George Papadopoulos for lying about the date of a meeting. Though the lie was inconsequential to the probe, they made the then-28-year-old eat a felony charge. And while they could easily have had his lawyer surrender him for processing on the charge and quick release on bail, they instead choreographed an utterly unnecessary nighttime arrest that forced him to spend a night in jail.<\/p>\n

Suffice it to say that Paul Combetta did not get the Papadopoulos brass-knuckles treatment.<\/p>\n

Combetta was not prosecuted even though he brazenly lied to the FBI about the circumstances of his destruction of Clinton\u2019s private emails. He was the key witness who had been in communication with Clinton confederates before and after his bleach-bit blitz through Clinton\u2019s 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.<\/p>\n

No false-statements charges against Combetta.\u00a0No false-statements charges against Cheryl Mills and Huma Abedin<\/a>, intimate Clinton aides who claimed not to know about Clinton\u2019s private server while they worked for her at the State Department \u2014 even though emails show them involved in discussions about the server.<\/p>\n

In the Clinton investigation, if you were a lawyer, such as Mills and Samuelson, the Obama Justice Department said \u201cpretty please\u201d and gave you immunity \u2014 rather than a subpoena \u2014 to induce you to surrender private laptop computers containing classified Clinton emails. And then the Justice Department, in consultation with the Clinton camp\u2019s lawyers, imposed restrictions on what the FBI could look at and what its agents could ask. After all, we wouldn\u2019t want to imperil the attorney-client privilege, right?<\/p>\n

Well, at least as long as you were not a lawyer in the Trump-Russia investigation. If you were, as was Melissa Laurenza, an attorney who worked for Paul Manafort and Rick Gates,\u00a0prosecutors and the FBI compelled you to testify<\/a>\u00a0about client communications. If you were Trump lawyer Michael Cohen, the FBI executed search warrants at your home and office, and you were prosecuted. So was Alex van der Zwaan, an attorney who worked with Manafort and Gates in representing Ukrainian interests. He was induced to plead guilty to a false-statements charge in the Mueller probe.<\/p>\n

And needless to say, if you were Manafort, there was no act-of-production immunity for you. And no one asked \u201cpretty please\u201d for you to turn over evidence. Under the Mueller team\u2019s direction, the FBI got search warrants allowing them to break into Manafort\u2019s home before dawn and at gunpoint to seize documents. Of course, this seems like kid-gloves treatment compared to what was done to Manafort\u2019s friend and fellow Trump adviser, Roger Stone. The S.W.A.T.-style raid on Stone\u2019s home included helicopter surveillance, an amphibious team (apparently to guard against escape by sea), and so many FBI vehicles that the CNN crew that just happened to be on scene almost couldn\u2019t find a parking space! Was that show of force really necessary for a 66-year-old man charged with nonviolent process crimes whom the court released on bail a few hours later?<\/p>\n

Mueller spent nearly two years trying to make an obstruction case against Trump for endeavoring to influence the Russia investigation. Congressional Democrats are still trying to breathe impeachment life into this effort. By contrast, the media-Democrat complex was unperturbed when Obama publicly announced in April 2016 that he did not think Clinton should be indicted. Far from accusing the 44th president of endeavoring to influence an investigation, the prosecutors and the press amplified Obama\u2019s narrative that Clinton had not intended to harm the country \u2014 and dutifully looked the other way when the FBI airbrushed Obama\u2019s name out of Comey\u2019s Clinton exoneration speech (the president having knowingly communicated with Clinton through her unsecure server when she emailed him from a hostile foreign country).<\/p>\n

The goal was to make Clinton\u2019s crimes disappear, while suspicions about Trump were blazoned on the public consciousness. Even though the Trump-Russia probe was a counterintelligence investigation, then-director Comey went public about it in March 2017 congressional testimony.<\/p>\n

That was stunning. It is not enough to say that the Justice Department and the FBI customarily neither confirm nor deny the existence of any investigation, no matter how comparatively trivial.\u00a0Counterintelligence investigations are classified<\/em>. They are never spoken of. Yet, Comey both revealed the investigation and identified the Trump campaign as a subject, suspected of \u201ccoordinating\u201d in Russia\u2019s cyberespionage. For good measure, he gratuitously added that an assessment would be made about whether crimes had been committed. As any sensible person would have foreseen, the FBI director\u2019s proclamation was taken by the media and the public as a signal that President Trump was the prime suspect in one of the most heinous crimes in American history.<\/p>\n

To say the least, a different tune was sung in the Clinton emails probe. There, Comey acceded to the instructions of Obama\u2019s attorney general, Loretta Lynch, that he not publicly speak of it as an\u00a0investigation<\/em>. Just call it \u201ca matter,\u201d he was told. Funny thing about that: it sounded exactly like what the Clinton campaign was saying at the time.<\/p>\n

I don\u2019t pretend to be a McCabe fan. Nevertheless, I have sympathy for him. The 2016 election will define his career, but it does not fairly reflect his long years of service defending the rule of law and American national security. If we could consider his case in a vacuum, and I had my druthers, I would not want to charge him. He was fired for cause in disgrace and is slated to lose at least some of his pension. These are significant penalties. I\u2019d like to be able to say, \u201cEnough is enough, no need to pile on with an indictment.\u201d<\/p>\n

But there\u2019s more to it than that. A lot more.<\/p>\n

For one thing, McCabe is suing the government for wrongful termination, arguing that he was fired due to a political vendetta carried on by President Trump. I certainly agree that the president should not have commented on McCabe\u2019s case or status. As I\u2019ve repeatedly argued (see, e.g.,\u00a0here<\/a>,\u00a0here<\/a>, and\u00a0here<\/a>), the president\u2019s often-unhinged commentary makes investigations and prosecutions much more difficult to execute. It has already resulted in slap-on-the-wrist treatment for deserter Bowe Bergdahl, who should have received a stiff sentence.<\/p>\n

That said, though, it is an audacious strategy on McCabe\u2019s part to (a) ask the Justice Department to exercise clemency by declining to charge an eminently prosecutable false-statements case against him, while (b) simultaneously hauling the Justice Department into court on an accusation of bad faith in a case in which McCabe leaked and then provided explanations that weren\u2019t true. If I were the attorney general, my inclination would be to say, \u201cIf he\u2019s going to make us go to war, let\u2019s go to war on offense \u2014 indict him.\u201d<\/p>\n

More significantly, we are now living in a law-enforcement world of McCabe\u2019s making.<\/p>\n

Again, in a better world, I\u2019d prefer to take account of the considerable positive side of McCabe\u2019s ledger and what he\u2019s already suffered, especially if he exhibited some contrition. That is, I\u2019d ordinarily be open to declining prosecution. But then, how about the positive side of General Flynn\u2019s ledger? And why, if it would be overkill to charge McCabe was it not overkill to charge Papadopoulos? Why do Clinton, Mills, Abedin, and Combetta get a pass in a criminal investigation triggered by actual crimes, but Flynn, Papadopoulos, van der Zwaan, and Stone get hammered in an investigation predicated by no crime \u2014 just a fever dream of Trump-Russia cyberespionage conspiracy?<\/p>\n

FBI and Justice Department officials keep telling us they grasp that there must be one standard of justice applicable to everyone, not a two-tiered system. So, here\u2019s the question: If Andrew McCabe\u2019s name were Michael Flynn, how much mercy could he expect from, say, Andrew Weissmann?<\/p>\n

___
\nhttps:\/\/www.nationalreview.com\/2019\/08\/andrew-mccabe-sues-justice-department-seeks-clemency\/?amp<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"

What Is Justice for McCabe?<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[],"class_list":["post-127478","post","type-post","status-publish","format-standard","hentry","category-uncategorized"],"_links":{"self":[{"href":"https:\/\/stateofthenation2012.com\/index.php?rest_route=\/wp\/v2\/posts\/127478","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/stateofthenation2012.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/stateofthenation2012.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/stateofthenation2012.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/stateofthenation2012.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=127478"}],"version-history":[{"count":0,"href":"https:\/\/stateofthenation2012.com\/index.php?rest_route=\/wp\/v2\/posts\/127478\/revisions"}],"wp:attachment":[{"href":"https:\/\/stateofthenation2012.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=127478"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/stateofthenation2012.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=127478"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/stateofthenation2012.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=127478"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}