In what must be a particularly awkward move for the former acting FBI Director, Andrew McCabe has demanded immunity in exchange for his testimony from the Senate Judiciary Committee. As we have discussed, McCabe has raised hundreds of thousands of dollars for his criminal defense and the Inspector General referred his case for possible prosecution for lying to investigators. The Senate wants to hear his testimony on how senior officials at the FBI and Justice Department handled the investigation of Hillary Clinton’s private email server.
McCabe’s counsel Michael Bromwich wrote the Committee that “Under the terms of such a grant of use immunity, no testimony or other information provided by Mr. McCabe could be used against him in a criminal case.”
The demand for immunity comes as Washington braces for the release of the Inspector General’s report on the conduct of McCabe, James Comey, and other high-ranking officials during the Clinton investigation. I do not blame Bromwich for seeking immunity when his client could well be hit not just with a damning IG report but an actual criminal charge under 18 U.S.C. 1001. However, the Committee would be insane to grant it. This is precisely what happened with Oliver North. North was in May 1989 convicted of three charges: accepting an illegal gratuity; aiding and abetting in the obstruction of a congressional inquiry; and destruction of documents. He was sentenced to a three-year suspended prison term and two years probation, $150,000 in fines and 1,200 hours community service. However, an appellate court on July 20, 1990, vacated his conviction due to the influence of his immunized testimony before Congress on witnesses. The special prosecutor, Lawrence Walsh, had tried to prevent his investigators and prosecutors from watching the congressional hearings but these extraordinary efforts were insufficient.
The last thing that the Republicans would want is to create a barrier to McCabe’s prosecution. The answer therefore is likely to be “no.”