Former FBI deputy director Andrew McCabe penned an op-ed for The Washington Post to contest the allegation of his “lack of candor” with federal investigators.  I have been writing (here and here and here) on the contrast between the treatment of McCabe and former national security adviser Michael Flynn.  McCabe has been erroneously portrayed as “losing his pension” but has not been charged.  Flynn was charged and accepted a plea deal under 18 U.S.C. 1001 for making a false statement to investigators.  Now McCabe is raising virtually the same defense that did not work for Flynn: that there was a lot going on and he was “confused and distracted.”

Given his willingness to hold forth publicly on his actions, McCabe does not appear to expect to be charged even though the Inspector General could refer a criminal allegation to prosecutors.

He lashes about at President Donald Trump and critics to assert ‘I did not knowingly mislead or lie to investigators.”  He then added this familiar defense: “At worst, I was not clear in my responses, and because of what was going on around me may well have been confused and distracted — and for that I take full responsibility.”

That is reportedly the same defense raised by Flynn who admitted to meeting with Russian diplomats during the busy transition period but did not disclose or confirm that they spoke about sanctions. He reportedly also did not make such a disclosure to Vice President Pence.  There was nothing unlawful in the meeting with the Russians or even unprecedented for an incoming national security adviser to discuss such points of tension between the countries.  Flynn did not seek legal assistance before the interview and was reportedly not told that the investigators were there as part of a possible criminal inquiry.

Once again, it is not a sufficient argument to note that Flynn was facing other charges.  Prosecutors are under a sworn duty to apply laws faithfully and fairly.  They are not allowed to simply charge any crime that is convenient. They must be able to attest to applying the criminal code in a consistent fashion.  Prosecutors are ethically bound to reject criminal charges (even when they can be technically brought) where they reflect “unwarranted disparate treatment of similarly situated persons.”

We do not know how strong the other alleged crimes were against Flynn.  We have one crime that the prosecutors maintained was established on the facts in the indictment. Those facts are strikingly similar on that crime to McCabe.  Of course, we are still awaiting the release of the IG report but McCabe’s misconduct was sufficient to not only lead career FBI staff to call for his termination but FBI Director Andrew Wray reportedly immediately forced him into a terminal leave upon reading the summary.

I have admittedly been a longtime critic of the use of 18 U.S.C. 1001 and how it has been used by prosecutors to indict for any statement deemed misleading or false. However, the greatest danger is posed not in the broad scope of this law but its arbitrary enforcement.  Two officials are accused of misleading statements in interviews. One is bled financially to the point that he must sell his house and then forced into a criminal plea.  The other gets a delay in his pension.  Both were very very busy people, but only one is looking at prison.