If Andrew McCabe Lied, Could He Be Charged Like Michael Flynn?

McCabeBelow 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.

440px-Michael_T_FlynnConsider 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.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.

47 thoughts on “If Andrew McCabe Lied, Could He Be Charged Like Michael Flynn?

  1. 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.

    That’s kinda the point, isn’t it. Isn’t this the basis for whataboutism? The American people aren’t completely blind; at least those that aren’t intellectually corrupted by partisan ideology. If a prosecutor violates the law and a defendant violates the same law, why does the defendant face a different and typically more harsh penalty? It would seem morally absurd that the legal professional is penalized less than the defendant until one realizes the legal professional knows where the landmines are placed.

    • Quite simply, the long time historical tradition of those who are in power receive special treatment over those who are not in power.
      It has been like that forever,
      The special thing about the American experiment, was to put things unambiguously into the DNA of American law, i.e. the Constitution, to prevent that from happening.
      But what inevitably happens is that all the administrators of that law, who are in power themselves now, exhibit an informal bias for treating special people specially.
      That informality goes on long enough, that it becomes unwritten policy, then becomes written policy, then becomes law.
      Inexorably, as the accretion of administrators who are more concerned with expedience over idealism get embedded into the system, you get a system that ever more resembles the kind of system that the founders abhorred.

  2. I would argue that Justice Scalia was incorrect in his assertion that the “exculpatory no” isn’t the equivalent of “taking the Fifth,” although Scalia had to have at least four other members of the Supreme Court siding with him (assuming the case was heard by the full Court).

    The idea that people can twist the language so harshly to the point where “no” doesn’t mean “no” is an absurdity. It argues that words have a meaning that is the exact opposite from what their original meaning was. It is evidence that United States society is in total retrograde, and may never be returned to its original course.

  3. Turley wrote, “The Justice Department’s inspector general is reportedly close to releasing a report on its investigation into the handling of the Clinton Foundation [should read investigation presumably] . . . . 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.”

    So the IG’s report has not yet been released. But there must’ve been some sort of “reporting” on the IG’s report. And the reporting about the report is not a “leak.” Because that would be a “leak about a leak.” And we can’t have that. It’s too redundant–the leak of a report about a leak from an investigation. O Bother. Let’s skip ahead to the paper chase.

    Investigators believe that McGabe misled them. Well . . . What did McGabe tell the investigators? Turley doesn’t know because the IG’s report has not yet been released. Well . . . Why can’t the IG leak more about the IG’s report about an investigation into a leak from an investigation? O Bother. Let’s just skip ahead again.

    After all of this time and who knows how much money there is no direct evidence that McGabe misled investigators investigating McGabe’s leak from an investigation. Unless, of course, the IG’s report says otherwise once its released. Who can wait for that? Not Turley.

      • Excerpted from the article linked above:

        “In October 2016, The Wall Street Journal revealed a dispute between F.B.I. and Justice Department officials over how to proceed in an investigation into the financial dealings of the Clinton family’s foundation. The article revealed a closed-door meeting during which senior Justice Department officials were dismissive of the evidence and declined to authorize subpoenas or grand jury activity. Some F.B.I. agents, the article said, believed that Mr. McCabe had put the brakes on the investigation.

        Others rejected that notion. The Journal, citing sources including “one person close to Mr. McCabe,” revealed a tense conversation with a senior Justice Department official in which Mr. McCabe insisted that the F.B.I. had the authority to press ahead with the investigation into the Clinton Foundation.”

        So the WSJ reported that some FBI agents believed that McGabe had put the brakes on the investigation of the Clinton Foundation. McGabe then authorized a leak to the WSJ that showed that McGabe had not put the brakes on the investigation into the Clinton Foundation. Now who were the FBI agents who leaked the first story to the WSJ? The first story being the one that alleged that McGabe had supposedly put the brakes on the investigation into the Clinton Foundation. Had the first story not been leaked to the WSJ, then the second story correcting the first story would not have been leaked to the WSJ.

        What are the chances that the FBI agents who leaked the first story to the WSJ worked at the New York Office of the FBI? Might the answer to that last question go to the issue of a “politicized FBI” intervening in a presidential election to the benefit of Trump and to the detriment of Clinton? If so, then might McGabe’s authorization of the leak of the second story to the WSJ be a defense of the FBI’s reputation as well as McGabe’s reputation–not to mention an attempt to discipline the FBI’s New York Office?

        Finally, should the person who benefited from the first leak to the WSJ–namely Trump–further benefit from the reprimand and ouster of the person who leaked the second story to the WSJ–namely McGabe? One must wonder, “What does Turley think?”

        • Diane – I think McCabe is in CYA mode. And I think there are no people in either the FBI or the DOJ who are willing to go on the record. So, either the press is just making stuff up (which they have done) or the FBI and DOJ are making stuff up.

          What do you think, Diane?

          • McGabe’s leak to the WSJ fits the CYA hypothesis well enough. There are other interpretations, though. Somebody at the FBI gave the WJS a skewed version of the “heated conversation” between McGabe and the DOJ lawyers. McGabe’s authorized leak to the WSJ corrected the skew to the benefit of the FBI’s reputation as well as McGabe’s. It may also have belatedly put the FBI’s New York Office on notice to cease and desist with election interference.

            P. S. If you don’t really want to know what I think, then you really ought not to ask for it.

            • Diane – if I didn’t want to know what you thought, I would not have asked. However, I think you are wrong and we will have to see how things play out.

  4. With the budget the FBI has, they should buy tape recorders. They are the only people who do not record their interrogations. This would stop a lot of these lying charges which are based on hand-written 302s. McCabe has a lot more than just lying on his plate when the IG’s report is finished.

  5. Professor, I’m always a big fan but you really should be more direct and confrontational. Call a spade a spade: Justice is not blind in America. Let’s remove the blindfold from Lady Justice and end the charade.

  6. Prosecutorial discretion resulting in inconsistent charging or plea arrangements can have broad consequences.

    The most notable example that comes to mind was when the King County Washington Prosecutor’s Office declined to request a death sentence during the penalty phase of mass-murderer Gary Ridgway’s convictions. The deal was part of a plea bargain in which Ridgway avoided the gallows in exchange for confessing to other “Green River Murders”. This was a decision I greatly disagreed as I predicted it would lead to the below circumstance.

    Several others currently on death row or awaiting sentencing for death penalty offenses argued, I might add reasonably so, that if Ridgeway could negotiate a life sentence instead of a death penalty when he was convicted of 48 Aggravated First Degree Murder Charges, why should these offenders face the same penalty when they are accused of single or two of the same charge. This argument brought forth years of litigation in the appellate courts before the state supreme court essentially declared that the issue was a matter of prosecutorial discretion on a case by case basis. If anyone deserved to hang, it was Ridgway. Yet I can understand the argument of the other convicts.

  7. Of course McCabe will not be prosecuted. It doesn’t matter what criminal acts he committed. McCabe’s been a loyal servant of the Deep State and the Deep State ALWAYS takes care of their own. If they didn’t, people would break ranks from the Deep State and cause problems for the Deep State’s agenda.

  8. That was done yesterday by some 17 members of Congress and Gowdy changed his mind pointing out the use of an IG left too many people off the hook. Thus throwing a gauntlet.

  9. How can Americans have any confidence in any DOJ investigation of the DOJ/FBI?

    This timely and very significant article further illustrates the need for a Special Counsel to investigate the corruption and weaponizing of our government agencies to win an election and to then by a coup remove the winner of that election.

    We can no longer trust the top officials of DOJ/FBI.

    • “Well, I have great respect for Mr. Gowdy and Chairman Goodlatte, and we are going to consider seriously their recommendations. I have appointed a person outside of Washington, many years in the Department of Justice to look at all the allegations that the House Judiciary Committee members sent to us; and we’re conducting that investigation.” – AG Sessions

      All the evidence of this was/is clear if you follow the granular details closely……

      • IN – “going to consider” – nuff said. The Keebler guy needs to go. We citizens are about the Swamp – not pot or illegals in Cali. We want the Dims and any associated RINO prosecuted pronto. This has been going on far too long.

        • Solid prosecutions do not happen “pronto”, nor should they.

          You want another dramatic hysterical leaky costly useless Mueller dog and pony show? I can answer that for you: No, no you don’t.

          Much has already been revealed as to the underlying investigation already underway.

          You just have to pay attention to detail.

  10. After the Libby incident I had occasion to apply for a job on a ship that required a security clearance. Aware of the rules of knowingly or unknowingly supplying or failing to supply information or worse information in conflict with earlier submissions I solved the problem in this manner.

    I had copies of all previous submissions for clearances back to the sixties. and the clearances granted then followed retirement papers. After than I filled in the new blank spots providing the minimum information needed. Anytime there was previous official paper I submitted that in sequence.

    It appears I was correct in not trusting them any more than they evidenced trust in me.

    I did not get the job. .

    I also did not get arrested under the Libby Law.

    Even now I would not do it any other way.

  11. We have to face reality. AG Sessions is not going to pursue charges against any of the ever growing list of FBI/DOJ violators. If Lois Lerner wasn’t charged, why would anyone believe these other shameful folks will? If it hasn’t happened already, not going to happen now. Even with the IG report. We’ll get a couple of ‘sanctions’ and slaps on the wrist.

    How far the country has fallen.

    • Mike

      The country has fallen well below what the founding fathers intended. The damming ingredient is mindless patriotism. Too many Americans believe that regardless of this system’s shortcomings, which are of a third world nature, anything is excusable because, ‘We’re number one’, etc; and especially if one’s party is in power. The ends are justifying the means and the ends are designed by the oligarchs who own the politicians. The muck and mire of the swamp exudes from the necessary secrecy that keeps the truth from interrupting the collective ego trip of those that are attracted to slogans, blame, and the lies that create the chaos that obscures, distracts, and allows this circus to continue. The greatest tragedy of all is that given the talent of this country, the resources, the potential, and the history; all those laurels upon which we are given to rest our scrutiny, we are stuck with these nincompoops and buffoons. The quality of choices we are presented with has never been so deplorable. Clinton or Trump; not even Italy is that screwed up. The first move to advance this nation is to take private funding out of politics, starting from the top down. Imagine a Presidential election based on issues, logic, precedent, and not finger pointing, lies, and the stuff with which we are saddled today in the White House. Trump is very clever and learned in the ways to win; but so are a lot of other idiots who hold power in other countries, most of which we look down on.

  12. Professor Turley, it is long past time for you to call for a second special investigation – one that will reveal the most prodigious scandal in American political history.

    For God and Country.

    • AG Sessions has failed bigly at his job as US AG so far.

      Such as it is I & others recommend Prez Trump turn these matters of Traitors & other Amer-Hating Trash over to JAG & Special Forces focused attention.

      Also for anyone: Can anyone show us Just one valid FISA Warrant Mueller is get getting his authority from to continue his/Rosenstein & Sessions’ DOJ’s investigation.

      Yea, I didn’t think so.

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