Below is my column in The Hill newspaper on the reported determination of the Inspector General that former Acting FBI Director Andrew McCabe misled investigators about a leak to the media. There may be a question of consistency in criminally charging Michael Flynn for the same alleged act. People continue to spin this issue by noting (as the piece states) that Flynn agreed to this false statement crime as part of a plea bargain with more serious potential crimes. However, that misses the point. Prosecutors are required to apply the criminal code evenly. They are not allowed the luxury of a criminal charge that can be easily applied to a wide array of people at their discretion. It makes it very difficult for people to contest a criminal charge when prosecutors can simply criminalize any inaccurate or misleading statement while ignoring the same conduct in others. It is particularly concerning when the favorable parties are fellow prosecutors or government officials. My argument is not that we should have more false statement charges. Rather, there has long been a problem in the use of this provision which has been applied in an arbitrary manner.
Here is the column:
The Justice Department’s inspector general is reportedly close to releasing a report on its investigation into the handling of the Clinton Foundation. FBI Director Christopher Wray reportedly asked deputy director Andrew McCabe to step down in light of some of the findings of the inspector general.
One aspect of the reported findings, however, stands out. According to these reports, investigators believed that McCabe misled them about his approval of a leak to the media on the Clinton investigation. An alleged false or misleading statement by McCabe could rekindle questions about how the Justice Department addresses alleged false statements within its own ranks.
Ultimately, Inspector General Michael Horowitz has the authority to refer a matter to criminal investigators investigators in cases of false statements or other crimes. He can also refer matters to state bars in cases of professional misconduct by lawyers. He could do either in the matter of McCabe if investigators conclude that McCabe intentionally misled them. However, if history is any guide, McCabe is unlikely to find himself facing a charge.
It is a perceived luxury enjoyed by federal prosecutors that routinely charge others with even borderline false statements but rarely face such charges themselves. While most prosecutors adhere to the highest ethical standards, a minority of Justice Department lawyers have been accused of false or misleading statements in federal cases. However, they are virtually never charged with false statements by their colleagues. There is no such reluctance in using this easily charged crime against targets outside of the department.
Consider the case of former National Security Adviser Michael Flynn. He now faces a prison stint after pleading guilty to a single false statement about a meeting with Russian diplomats during the Trump presidential transition period. While Flynn did not deny the meeting, which was entirely legal, he denied discussing sanctions with the Russians. Mueller charged him with lying or misleading federal investigators under 18 U.S.C. 1001. He did so even though investigators working under former FBI Director James Comey reportedly had concluded that Flynn did not intend to lie and should not be charged criminally for the omission.
Despite the recent criticism by President Trump, Horowitz is a respected, nonpartisan professional. Moreover, there are strong arguments against the broad use of the false statements statute. It is common for people to omit or color facts in interviews on events that may have occurred weeks or months or even years earlier. Most people assume that they have a right to deny wrongdoing. Indeed, there was once an “exculpatory no” doctrine that maintained that a person could deny a crime with an investigator and not be subject to a charge under laws like Section 1001. This was viewed as an extension of the Fifth Amendment protection against self-incrimination.
The Justice Department litigated for years to deny the “exculpatory no” to average citizens. It finally succeeded in 1998 in Brogan v. United States when the late Justice Antonin Scalia wrote for the majority that “we find nothing to support the ‘exculpatory no’ doctrine except the many Court of Appeals decisions that have embraced it.”
In the case of Flynn, he was not even denying a criminal allegation. There was nothing particularly uncommon, let alone unlawful, in an incoming national security adviser discussing the issue of sanctions that were the main areas of tension with the Russians. Flynn did not deny the meeting but did deny the subject of sanctions, as opposed to discussing better relations in the new administration. Nevertheless, he was charged and, reportedly after depleting his savings and putting his house up for sale, he pleaded guilty.
Mueller has also used the false statements charge to force guilty pleas from attorney Alex Van Der Zwaan and former Trump campaign official Rick Gates, and to charge others. McCabe worked on the underlying investigations leading to some of these charges for false statements. Moreover, the Justice Department has prosecuted grand jurors who have disclosed information as well as employees of other agencies who give reporters nonpublic information.
In the case of McCabe, he reportedly denied any intention to mislead investigators on the leak to the Wall Street Journal. McCabe would not be alone in the Justice Department’s own allowance for an in-house “exculpatory no.” As I have previously written, Comey was in violation of FBI rules when he removed memos linked to the investigation and then leaked the information to the media through a friend. The Justice Department has indicated that these memos were FBI documents removed by Comey without prior approval.
Moreover, four of the seven memos that Comey removed are now believed to be classified. Since he reportedly gave four memos to his friend, Columbia University Professor Daniel Richman, to leak to the media, at least one disclosed memo may have been classified. It is a crime to remove or release classified information. While Comey could have legally given the information to a congressional committee or alerted them to the existence of the memos, he chose to remove the material and leak the information to the media.
Comey is also cooperating with Mueller and there is no indication that he is facing a criminal inquiry. While McCabe was working under Comey, it is not clear if Comey knew of the alleged leak by McCabe. In a May 2017 congressional hearing, Comey was asked if he had “ever been an anonymous source in news reports about matters relating to the Trump investigation or the Clinton investigation” or whether he had “ever authorized someone else at the FBI to be an anonymous source in news reports about the Trump investigation or the Clinton investigation.” Comey replied, “Never” and “No.”
The issue ultimately should not be whether McCabe or Comey used an “exculpatory no” and should have been charged with a false statement. The issue is whether a different set of rules applies to the Justice Department than the one that it applies to the rest of us. In the end, Flynn cut a deal and will have to live with it. Moreover, prosecutors may have felt that they had provable crimes against Flynn or his son, Michael Flynn Jr., making the false statement charge merely a convenient charge for cooperation. (Flynn was dealing with some dubious characters linked to Turkish President Recep Tayyip Erdogan.)
However, there should be a concern whether Section 1001 is a crime that is easily satisfied and arbitrarily enforced. That is a dangerous combination. The “exculpatory no” doctrine may have been ruled as unavailable to citizens but it appears very much alive inside of the Justice Department.