A Criminal Investigation In Search Of Clarity: The McCabe Scandal Raises Valid Questions Over The Prosecution For False Statements

McCabe440px-Director_Robert_S._Mueller-_IIIBelow is my column in The Hill Newspaper on lack of clarity in the charging of various Trump figures with false statements while former Andrew McCabe is simply fired a day before retirement. As discussed before, the much discussed “loss” of McCabe’s pension appears to be unfounded and McCabe will reach a pension likely to reach roughly $2 million.  The more difficult question concerns the standard applied to when charges are brought (and more importantly who the charges are brought against.)

Here is the column:

In the movie classic “Three Days of the Condor,” a weathered spy master played by John Houseman spoke about his work after the Great War “before we knew enough to number them.” When a subordinate asks if he missed “that kind of action,” Houseman responds dryly, “Nope. I miss that kind of clarity.”

Robert Mueller may have the same longing after the termination of FBI deputy director Andrew McCabe, whose alleged misconduct involved the same acts that led the special counsel to indict figures like former National Security Adviser Michael Flynn, George Papadopoulos, Rick Gates and Alex van der Zwaan. If McCabe did lie to investigators, the question is whether a lack of clarity will lead to a troubling lack of consistency in the interpretation of the criminal code.

The inspector general at the Justice Department questioned McCabe about the leaking of information to the media during the investigation of the Clinton Foundation. According to reports, the investigators concluded that McCabe misled them on his role as the source of sensitive information given to the Wall Street Journal.

The Office of Professional Responsibility (OPR) later recommended that McCabe be fired, an exceedingly rare recommendation from career staff at the Justice Department. Whatever the content of the report, they were serious enough to reportedly lead FBI Director Christopher Wray to demand that McCabe take a terminal leave weeks before he was fired by Attorney General Jeff Sessions.

Sessions later issued a statement that the “OIG and FBI OPR reports concluded that Mr. McCabe had made an unauthorized disclosure to the news media and lacked candor — including under oath — on multiple occasions.” The inspector general could still refer this record to prosecutors for possible criminal charges. Mueller, however, could face more immediate questions in light of the McCabe action. Mueller has maintained that any intentional false or misleading statement to investigators constitutes a crime under 18 U.S.C. 1001. Not “multiple” statements, but any statement.

Moreover, these statements were not described as instances as a “lack of candor” but lies. In Flynn’s case, investigators working under Comey reportedly concluded that Flynn was not intentionally misleading them when he denied that sanctions were discussed in meetings with Russian diplomats during the transition. Prosecutors are not given the discretion to charge people with crimes simply because it is convenient to induce cooperation. They must establish that the underlying crime was committed and that they are following a consistent interpretation of the criminal code.

For McCabe’s part, he insisted that he did not intentionally mislead investigators in giving the “sensitive” information to the Wall Street Journal. He also insists that he had the authority to give nonpublic information to the media. Yet, Flynn also had authority to meet with Russian diplomats as part of the transition period. Both men were targeted not due to the underlying actions, but allegedly lying about them.

 

If McCabe is not indicted, Mueller may miss the clarity of his earlier indictments. And it may get worse. As discussed in an earlier column, McCabe indicated that he informed Comey of his “interaction” with the Wall Street Journal. However, Comey previously denied that he ever leaked information or approved such leaks by others. If the inspector general considered McCabe a leaker, it would implicate Comey, who is a key witness for Mueller, in not just the same leak but false statements to Congress. Not only would it make it difficult to call Comey as a witness, it could lead some cooperating witnesses like Flynn to question the veracity behind their plea agreements.

McCabe could spell trouble for Comey in another respect. Various news organizations are reporting that McCabe wrote memos on his meetings with Trump and gave those memos to Mueller. There is no allegation that he leaked those memos. That stands in stark contrast to Comey who removed his memos after he was fired and then gave his memos to his friend, Columbia Law professor Daniel Richman, who then leaked the information to media. The FBI has already confirmed that these memos were FBI documents subject to review and release procedures.

Worse yet, the FBI has confirmed that four of the seven memos that Comey removed are now believed to be classified. Since he reportedly gave four memos to his friend, at least one of the documents given to Richman may have contained classified information. Comey could have given his memos to the House and Senate Intelligence Oversight Committees, or simply informed the members of their existence. Instead, he elected to remove them and leak information to the media. Comey has faced no consequences for his misconduct.

In the end, McCabe could still easily receive his estimated $60,000 a year pension for life before reaching retirement age. (He never truly lost his pension, which is “vested” under federal law. He was seeking early pension at 50 under a special provision). In a tweet by Andrea Mitchell of NBC News, it was suggested that a “friendly member of Congress” could hire McCabe briefly so he could “qualify for pension benefits by extending his service the extra days.”

Various Democratic members have already lined up with such offers for McCabe, which might not work since he may need a federal law enforcement position and was fired “for cause.” In the meantime, Flynn reportedly agreed to his plea deal after legal costs drained him of his savings and forced him to sell his house. He would dearly love to be worrying about a pension rather than prison at this point.

There may be distinctions to draw between the statements made by McCabe and defendants like Flynn. But they, and the public, deserve an explanation from someone and maybe even a modicum of clarity on what constitutes a crime in these investigations.

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

53 thoughts on “A Criminal Investigation In Search Of Clarity: The McCabe Scandal Raises Valid Questions Over The Prosecution For False Statements”

      1. False equivalency- On-line marketing by the Obama campaign did not have its origins in Russia and the data from Americans wasn’t obtained under false pretenses. Conservatives are Putin-lovers and think falsehoods are necessary. (See the training manual at Theocracy Watch)

    1. We all kind of figured it out when ads for the exact same items we just looked at on Amazon pop up in Facebook.

      In 2012, Maxine Waters praised Obama’s cutting edge mining of Facebook, the most extensive database in creation. They created a campaign app on FB. When users accessed it, they were asked if they would give permission for the campaign to access their friend’s list. They usually granted it, which means that millions upon millions of Facebook users, potential voters, had their information given to Obama, including their cell phone numbers. Facebook admitted that they were allowing Obama to do something that they would never have allowed any other political party to do.

      It was deemed brilliant, in step with modern technology.

      Republicans do a fraction of the same thing, and it’s evil and there are investigations.

      Again, until and unless they investigate Obama for doing a thousand times worse then I don’t want to hear any Congressional investigations into this. And if they do, then they’d better add Amazon and GOOGLE and everyone else to the mix for sharing information with FB about my online browsing habits.

  1. McCabe and Rosenstein have been very busy:

    “FIRED FBI OFFICIAL, MCCABE, AUTHORIZED CRIMINAL PROBE OF SESSIONS”

    “Nearly a year before Attorney General Jeff Sessions fired senior FBI official Andrew McCabe for what Sessions called a “lack of candor,” McCabe oversaw a federal criminal investigation into whether Sessions lacked candor when testifying before Congress about contacts with Russian operatives, sources familiar with the matter said.

    Democratic lawmakers have repeatedly accused Sessions of misleading them in congressional testimony and called on federal authorities to investigate, but McCabe’s previously-unreported decision to actually put the attorney general in the crosshairs of an FBI probe was an exceptional move.

    One source said that Sessions was not aware of the investigation when he decided to fire McCabe last Friday less than 48 hours before McCabe, a former FBI deputy director, was due to retire from government and obtain a full pension, but an attorney representing Sessions declined to confirm that.

    Last year, several top Republican and Democratic lawmakers were informed of the probe during a closed-door briefing with Deputy Attorney General Rod Rosenstein and McCabe.”

    1. remember that $700,000 mc cabes wife got from Clintons closest friend terry mc cauliff that was payoff for the session investigation. now it all makes sense.

      1. – McCabe was promoted by Comey.

        – McCabe was assigned to the Hillary Clinton investigation.

        – McCabe’s wife got $650K from Hillary through her deputy, McCauliffe.

        – Hillary was exonerated by McCabe/Comey before she was investigated.

  2. Indict McCabe and Comey.

    Finally investigate the corruption of Hillary Clinton. Make her accountable for smashing her laptops and phones with a hammer, and destroying her servers with BleachBit while under subpoena. Uranium One. The video. Travel gate. Whitewater files missing.

    Because if they don’t then the law needs to apply equally for everyone. Everyone who has mishandled classified information should be released. Everyone who has lied to federal investigators needs to be released from prison.

  3. mc cauliff gave mc cabe`s wife $700,000 to run for political office.nobody gives that kind of money for the hell of it. maybe it was some sort of payment for mc cabe`s investigation of sessions.

  4. No one with a modicum of objectivity and intellect seriously following the Mueller and related dramas have any doubt that the flow of damaging evidence swiftly moved away from Trump and on to his accusers……. this is rather old news.

    Relax – get out of the weeds and take in the vast view of the forest……

  5. The real crisis – decades in the making – is that American voters have embraced “authoritarianism” government over a “constitutional rule of law” system – WITHOUT the legally required constitutional amendment.

    Essentially those in power simply make up the rules as they go along and the U.S. Supreme Court largely abandoned it’s role as “constitutional-referee” (providing judicial review over unconstitutional laws and policies). Government leaders, agency heads and their contractors view the U.S. Constitution – a wartime governing charter – as “optional-when-convenient” instead of a legal restraint on government authority.

    For example: In the late 1960’s and 1970’s the U.S. Supreme Court essentially amended the letter & spirit of the 4th Amendment with rulings like “Terry v. Ohio” that allowed “preemptive” searches on public streets. The 4th Amendment does not allow “preemptive” searches in the vast majority of cases. In 1968 the U.S. Supreme Court dissenting opinion in “Terry v. Ohio” actually warned of “totalitarianism” coming to America.

    Today we have federal, state and local officials trolling Facebook and social media performing “preemptive” searches. Due to fraudulent and excessive secrecy, most circumstantial evidence indicates these illegal 4th Amendment searches – without judicial warrant – are used primarily to punish legal 1st Amendment exercises. Today there is at least one “Fusion Center” (or blacklisting center) in every state performing “preemptive” searches – without judicial warrants.

    Before 9/11, even some prosecutors ridiculed the corruption of the American Justice System, joking they “could indict a ham sandwich” if they wanted to.

    That’s the real story here, all of the characters mentioned in above article DON’T subscribe to a “constitutional rule of law” system – they subscribe to “authoritarianism” and “totalitarianism” without any constitutional restrants on their power.

    Maybe, just maybe, we should be asking where are the “reformers” to move us closer to James Madison’s system of government and further away fron from foreign models of authoritarianism? Why are few Press and Media organizations silent on maybe America’s greatest crisis?

    1. “Essentially those in power simply make up the rules as they go along and the U.S. Supreme Court largely abandoned it’s role as “constitutional-referee” (providing judicial review over unconstitutional laws and policies). Government leaders, agency heads and their contractors view the U.S. Constitution – a wartime governing charter – as “optional-when-convenient” instead of a legal restraint on government authority.”

      That’s why the .gov loves wars. People need to push back instead of being instantly afraid or angry.

      “That’s the real story here, all of the characters mentioned in above article DON’T subscribe to a “constitutional rule of law” system – they subscribe to “authoritarianism” and “totalitarianism” without any constitutional restrants on their power. ”

      Yep, it’s human nature, and the founding fathers knew this as well. LIMITED government was the goal. I posted an example yesterday about how government overreach will come back and bite you on the but, as it did to Warren. If she isn’t stupid, how come she didn’t see this coming? And she drives a vehicle, too. We need to knock the government back down since it only draws the dregs of society to do the work anyway.

      https://reason.com/archives/2018/03/21/under-trump-elizabeth-warren-suddenly-di

      It’s an ongoing problem since Democrats, especially, project deity-like qualities to their politicians. And since deities are thought to be without fault… well, don’t you see that in these blog posts everyday??

    2. AZ,

      That is a good summation of what has happened in the US regarding the “justice” system.

  6. $ 60,000 a year pension is outrageous-and for what ? -hiding behind a desk pushing a pencil !!!??? Well,what’s new ? They gave ex FBI Robert Hanson convicted Russian spy’s family his full pension while he’s in jail for life

  7. Turley wrote, “There may be distinctions to draw between the statements made by McCabe and defendants like Flynn.”

    You don’t say? Flynn lied about whether he had discussed sanctions with the Russian Ambassador. BTW, Flynn pled guilty to making those false statements. McCabe denies that he lied or even misled the investigators from the IG and OPR. Moreover, McCabe claims that he had the authority to talk to reporters from the WSJ to set the record straight on unauthorized leaks to the WSJ made by persons who have not yet been named but who must have had insider knowledge of the jurisdictional dispute between the DOJ and the FBI over the FBI’s investigation of The Clinton Foundation and who misrepresented the facts of that dispute to the detriment of the FBI’s reputation as well as to the benefit of then-candidate for president, Trump, who had been waging a propaganda and disinformation campaign against the FBI and the DOJ through his adviser and spokesperson Rudy Guliani.

    So Turley freely admits that he may be drawing a false equivalency between Flynn and McCabe. Actually, there’s no “maybe” about it. It is a false equivalency. Turley is merely pretending that there is no longer any distinction properly to be drawn between the letter of the law versus the spirit of the law. Turley knows better. Trump needs a real defense and fast. Tweetwalling the OSC is a fake defense far better suited to disputes on a schoolyard playground.

    How are those FinCen boys doing with The Trump Organization’s financial records?

    1. Late4Dinner: You accuse Turley of false equivalency yet you form your opinion based on soft pedaled media reports and emotional midnight statement from scorned McCabe. Perhaps better to assess when IG report/more details released. Also, regarding Flynn you fail to mention the pending matter of judge calling out Mueller regarding exculpatory evidence withheld by the Mueller team. There might be more to that story as well. Your comments do not come across as being objective.

      1. Bill Martin said, “Also, regarding Flynn you fail to mention the pending matter of judge calling out Mueller regarding exculpatory evidence withheld by the Mueller team.”

        The judge at issue has a standing order for a Brady review of every plea-deal. Turley tried to make hay out of that red herring, too. You fell for it. I didn’t. Don’t rate your own gullibility as objectivity.

        Bill Martin also said, “. . . you form your opinion based on soft pedaled media reports and emotional midnight statement from scorned McCabe.”

        Supposing that your observation were “objectively” true–which it isn’t, of course–even you must admit that your subjective and false opinion of my opinion is utterly irrelevant to the false equivalency that Turley draws between McCabe’s supposedly misleading statements and the false statements to which Flynn pled guilty.

        As for you advise to wait until the IG report is released to the public. Why won’t you follow your own advise, Bill? Why won’t you give that advise to Turley, instead? There’s a halfway decent chance that the IG report will name the persons who made the unauthorized leaks to the WSJ that McCabe corrected with his authorized leaks to the WSJ. And if, or when, that happens, Turley will have not one word to say on the subject. Just as Turley had not one word to say on the release of the Schiff memo because it effectively refuted the Nunes memo about abuse of the FISA warrant for Carter Page as well as Turley’s innuendo that Schiff was playing games with classified information.

        P. S. I’m pleased to meet you, Bill Martin.

        1. Dear Late: You keep referencing McCabe’s explanation and take it face value. As for the judge in the Flynn case, another question to be answered is why was first judge recused? You somehow manage to work Carter Page into the discussion – no indictment/no proof he is/was spy. And aside from Clinton-financed dossier, what is the specific probable cause in support of Mueller’s investigation of Trump et al? History will prove that Rosenstein panicked in response to irrational anti-Trump hysteria by initiating conflict-laden special counsel investigation. Pleased to meet you as well, but still calling you out on your lack of objectivity Y’all should take Barack Obama’s advice and work on your election game instead of all this delusional excuse-making (Hilary did not have game).

    1. mespo – unless the FBI charges me with a crime, I am not speaking to them. I hope the President does not either.

      1. If they do that, I surely wouldn’t speak with them! On a humorous note, one of my law school classmates had a retirement dinner in Alexandria, VA recently. The assembled party-goers were mostly FBI guys since he worked there for over 25 years rising to Dep. Director status. His wife asked me to say a few words at the last minute and I began the remarks by saying that “I’m going to break a long-standing Italian tradition tonight and talk to the FBI without a bright light in my face.” It was dead silence for about a half a second then a lots of laughs. That was the longest half second of my life!!

        1. mespo – great icebreaker. Or you could have brought your own lamp. Plugged it in and aimed it at your face. Then said, Most of you will recognize me better this way. 😉

            1. Mespo and Paul,..
              Two FBI guys came to our house when I was about 4 years old….the next door neighbor had been caught after a bank robbery, and they were questioning neighbors.
              The family of the bank robber seemed to be doing pretty well financially, and my Mom had suggested to my Dad that he look into getting into the neighbor’s line of work ( ostensibly, sales).
              She dropped that suggestion after the visit from the G-Men.😄😀

  8. Thank you professor Turley for asking question on many of our minds. Somebody in authority needs to provide clarity on back to back comparisons of McCabe-Flynn-Papadopoulos-Gates-van der Zwaan. Unfortunately there is a lack of curiosity on the part of most journalists to ask/investigate this question. And here’s another question: since all roads/logic point to potential wrong doings on the part of Mueller’s buddy Comey why are there not more calls for Mueller to recuse himself? And one more question: with all these inconsistencies, selective prosecution, potential abuse of process, etc. if any of the Mueller indictments go to trial wouldn’t a competent defense attorney be in the driver’s seat in gaining sympathy from a jury for his client?

  9. What is the legal complication here? A lie is a lie. Period. But that fact is not even relevant here. The ONLY relevant fact here is whether or not the subject person is a bona fide agent of the Deep State.

    This is easy to determine. The press will always let you know by falsely presenting a corrupt individual as a person of honor and integrity. Thus, even though a person like Mueller was heavily involved in obstructing and covering up investigations in such things as the Whitey Bulger crimes and the 911 crimes, he is treated by the press as a man of honor, integrity, and honesty–the complete opposite of the truth. That immediately tells you that Mueller is Deep State.

    James Comey is also Deep State applying the same simple test.

    And, of course, Andy McCabe is also Deep State because even though he lied, the only thing the press was concerned about was the possibility that he might lose his pension after 20 years of so-called “service.” (You ever wonder why the press can’t cite a single thing that McCabe did in his career to protect American lives or do anything positive whatsoever? The real answer they wont tell you: McCabe has spent 20 years committing corrupt acts on behalf of the Deep State, which is why they made him Deputy FBI Director in the first place.)

    Thus, NOTHING will happen to Clinton, Comey, Mueller, McCabe, and all the other Deep State agents. The ironclad rule remains: The Deep State ALWAYS takes care of their own.

    1. Thus, even though a person like Mueller was heavily involved in obstructing and covering up investigations in such things as the Whitey Bulger crimes and the 911 crimes, he is treated by the press as a man of honor, integrity, and honesty–the complete opposite of the truth. That immediately tells you that Mueller is Deep State.

      Ralph,

      Mueller needs to be investigated for any involvement in the murder of Roger Wheeler, CEO of Telex, of Tulsa Ok by the suspected FBI’s Whitey Bulger gang.

      Contrary to the official final report, Telex was a forerunner to the internet in which International Corp’s conducted business & transferred millions/billions of dollars between businesses.

      Telex was likely one model for companies like Facebook, etc. using others info to profit off of.

    2. Ralph Adamo said, “What is the legal complication here? A lie is a lie. Period.”

      And how does Ralph determine that a given statement is, in fact, a lie? For instance, if the person who utters a given statement pleads guilty to lying, then would Ralph accept that that person’s statement was, in fact, a lie? Or would Ralph dispute that that person’s statement was a lie? Conversely, if the person who utters a given statement denies that that statement was a lie, then would Ralph withhold judgment about the factuality of that supposed lie? Or would Ralph insist that the disputed lie was, in fact, a lie–because the speaker who denies the lie is supposedly a member of a deep-state conspiracy?

      You know, Ralph, the principle of identity is a material implication (a.k.a. an if/then statement). If a statement is true, then that statement is true. If a statement if false, then that statement is false. The principle of identity does not settle the question. It merely raises the question. What’s true? And what’s not true? Eeny meeny minny moe works about as well as the principle of identity.

  10. The foundation of the entire Mueller probe is based on the DNC attempt to frame Trump for the DNC’s own actions during the campaign. That being the case, why is not all of Mueller’s activity now tainted, so-called fruit from the poison tree? IMO all of Mueller’s cases should be dismissed and he should close shop immediately.

    1. Papadopoulos pled guilty to lying to the FBI. The DNC had nothing to do with that, JoJo. Carter Page met with a representative of Igor Sechin’s company, Rosneft. The DNC had nothing to do with that either. Although, it was alleged in the Steele dossier, which, in turn, is one of the reasons that the FBI began investigating that and other allegations in the dossier. But even more importantly, JoJo, the DNC had absolutely nothing whatsoever to do with Trump firing Comey. And you know it. And you don’t care about knowingly asserting obvious falsehoods right here on the blawg.

      1. Diane – the DNC is responsible for the firing of Comey. You just haven’t seen the connection yet. Connect all the dots and get back to me about this.

        1. Time moves forward into the future. Time does not move backwards into the past. The DNC did not trick Trump into firing Comey. The DNC did not trick Trump into hiring Rosenstein. The DNC did not trick Rosenstein into hiring Mueller. The DNC is not currently tricking Trump into coughing-up a lame-brained conspiracy theory as a legal defense against the special counsel’s investigation. Trump is tricking you on each of those counts, Paul. But it’s not going to work on Mueller. Because you can’t cheat an honest man. And Mueller is an honest man. Trump is not an honest man.

  11. Thought I would check in with the legal section of the Daily Tatler.

  12. As usual, there will be one brand of justice for the ‘made-men’ on the inside, and another for those on the outside. Same as it ever was…

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