The Wolfe Indictment: Is Andrew McCabe Next In Line For Prosecution?

McCabeBelow is my column in The Hill newspaper on the implications of the indictment of James Wolfe for lying to federal investigators.  I have very serious concerns over the targeting of a journalist for surveillance in this case, particularly because there seems ample alternatives to the intrusion into confidential communications of a reporter.  However, the most obvious threat may be to Andrew McCabe who is still awaiting word on whether he will be criminally charged and recently sought immunity from Congress.

The indictment of James Wolfe, 58, former security director of the Senate Select Committee on Intelligence (SSCI), has sent shockwaves around Washington. Wolfe faces three counts of violating 18 U.S.C. 1001, for making false statements to criminal investigators, and could easily face serious jail time if convicted. After a year of leaks cascading down Capitol Hill, Wolfe is a cautionary tale for many members, staffers and journalists. Yet, one person should be especially discomforted by the indictment: former FBI deputy director Andrew McCabe.

The Wolfe indictment shows the Justice Department has been actively pursuing leaks out of Congress. Given the lack of prior action, members and staffers may have become emboldened over time, but it now appears the Trump administration has been quietly tracking down the source of some news articles. Wolfe was an obvious concern for any allegations of leaks, given his work at the SSCI for three decades, from 1987 to 2017.

In his capacity, the most sensitive material passed over his desk from the executive branch to the committee. The Justice Department alleges that he “lied to FBI agents in December 2017 about his repeated contacts with three reporters, including through his use of encrypted messaging applications. Wolfe is further alleged to have made false statements to the FBI about providing two reporters with nonpublic information related to the matters occurring before the SSCI.”

The alleged disclosure in this case has proven far more salacious than expected. Wolfe reportedly had an intimate three-year relationship with Ali Watkins, a reporter for the New York Times. The relationship reportedly occurred when Watkins worked for BuzzFeed. It raises ethical issues on the relationship of sources and reporters, but a greater concern is raised by the targeting of a journalist by the FBI.

The FBI was particularly interested in an article by Watkins that revealed that Russian figures had tried to recruit Carter Page in 2013. Under existing case law, journalists are afforded little more protection from surveillance than average citizens. However, the interception or seizure of communications by a journalist has long been treated as the last possible option and only appropriate when no other sources are available.

The disclosure of some emails and texts captured from Wolfe suggest the surveillance of Watkins may have been a first, rather than a last, resort. In one such text, Wolfe seemed intent on making the most incriminating comment possible about his prior relationship with Watkins: “I’ve watched your career take off even before you ever had a career in journalism … I always tried to give you as much information that I could and to do the right thing with it, so you could get that scoop before anyone else.”

The threat to journalists has steadily increased since the abusive surveillance conducted by the Obama administration against James Rosen, a former Fox News reporter. In this case, the targeting of Wolfe alone would appear sufficient to establish the criminal conduct. Indeed, seizing his calls and texts would likely include exchanges with Watkins, but she would not be the target of surveillance. These legitimate concerns are magnified by an administration that has engaged in overheated, threatening rhetoric against the media.

 

The only person who should be more worried than staffers and journalists by the Wolfe charges is McCabe. He is already embroiled as the subject of a referral by the Justice Department inspector general for possible criminal prosecution. This referral by career Justice Department officials is based on their finding that McCabe knowingly lied to investigators about leaking information to the media.

It was bad enough for McCabe that he was involved in the investigation of former national security adviser Michael Flynn, who was charged with the same violation of 18 U.S.C. 1001 for lying to investigators. Now, Wolfe is charged under the same provision for a leak to the media. For McCabe not to be charged would lead to a torrent of criticism over the failure of the Justice Department to apply the same standards to its own lawyers.

McCabe’s giving information to the Wall Street Journal is not in dispute. He claims that his boss, at the time FBI director James Comey, knew and either explicitly or implicitly approved of the leak. Comey directly contradicts McCabe and says he failed to tell the truth. In response, McCabe’s lawyer, Michael Bromwich, has ridiculed Comey’s “white knight” account and said that Comey is offering a false narrative.

McCabe, who raised hundreds of thousands of dollars for his own defense on GoFundMe before the release of the inspector general report, must now anticipate that he will be indicted. Recently, he demanded immunity from Congress as a condition for answering questions about the actions of the Justice Department under his leadership.

An old expression holds that it is unlucky to be “third on a match.” It comes from the Crimean War and World War I, when a sniper would spot a match being passed between soldiers and have time to shoot the third soldier in the sequence. Of course, there was no guarantee that it would take two lights to get a clear shot. In this case, McCabe has watched two prior figures go down on the same match. This is precisely why leaking, like smoking, is so hazardous in trench warfare.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. He has served as lead counsel in various national security cases, including the representation of a former House Intelligence Committee staffer accused of leaking classified information to the media.

71 thoughts on “The Wolfe Indictment: Is Andrew McCabe Next In Line For Prosecution?

  1. Lying to the FBI, etc is small potatoes in the big picture. We want these intel-goons to confess to their conspiracy to take down Trump and absolve Hillary. For that we need a prosecutor not appointed by Sessions/Rosenstein.

  2. At this time:

    The Wolfe Indictment: Is Andrew McCabe Next In Line For Prosecution? 59 posts

    Humpy Dumpty Duty: 72 posts

    That’s a sign of desperation.

  3. Watkins could have been prosecuted for receiving classified information from an official source, so we can say that his Administration is showing some restraint in light of the unprecedented attack by a thousand leaks levied against it. This is the beginning of a great purge. Hopefully, all of the malignancy will be dealt with. Comey and friends are certainly in the crosshairs.

  4. A.M. Rosenthal once summarily fired a reporter whom he’d discovered had had an affair with a politician while employed as a political reporter at her previous paper. (An episode of Lou Grant drew on this matter). When others on his staff complained, he supposedly stated a principle: he didn’t care if you were f***ing elephants, as long as you weren’t covering the circus. The newspapers as they were during the Newseum era had many shortcomings, but also had standards of professionalism which inhibited certain abusive impulses As for public officials, these days you’re surprised to discover one who actually is on the square (rather than having a media-generated reputation for being on the square).

  5. Turley wrote, “The disclosure of some emails and texts captured from Wolfe suggest the surveillance of Watkins may have been a first, rather than a last, resort.”

    Turley also wrote, “In this case, the targeting of Wolfe alone would appear sufficient to establish the criminal conduct. Indeed, seizing his calls and texts would likely include exchanges with Watkins, but she would not be the target of surveillance.”

    Turley appears to be lodging a complaint about parallel construction. The FBI finds out about Wolfe via surveillance of Watkins. Then the FBI conducts surveillance of Wolfe to get the same calls and texts that they had previously gotten from Watkins. The prosecutor doesn’t have to use the evidence acquired from Watkins at trial because the prosecutor can use the evidence acquired from Wolfe at trial. So how does Turley know that the FBI conducted surveillance of Watkins first and Wolfe second? It does seem like a plausible guess.

    • look what the cat dragged in. L4D is all tweaked out with a baggy full of crystal meth to slog through the damaging news for her peeple

      good luck. Not

    • We do not actually know about the order over events.

      But we can guess.
      We know that what the FBI got from Watkins was meta data.

      They did NOT get the actual texts.
      They just established that Watkins was in regular communications with Wolfe.

      They used that to get a warrant for Wolfe which is when they got the content.

      That is NOT parallel construction.

  6. Here’s a “journalist” who slept with her source (with it all known to her bosses) and then published state secrets, and JT is worried about her and the press’ virtue? Exactly what virtue might that be? There is no Reporter Privilege. Hauling Mata Horey here in front of a grand jury along with her love smitten Senate staffer would harm the Republic not one bit.

    • As best as I can determine, she didn’t know any “state secrets” to tell.

      Do learn to read with care, not emotion.

      • She wrote a story about the CIA’s secret detention and interrogation program that she got from her main squeeze that would qualify under anyone’s definition of “state secrets” with the possible exception of your own. Check that OED of yours.

        • Yes, something which is illegal is certainly a so-called state secret. However, as best as I can tell she obtained the story from other than her “main squeeze”.

      • Anything about an ongoing investigation is private. Leaking it is always unethical and usually a crime.
        Information about who closed door witnesses will be is atleast classified.

        That Carter Page was in informant for the FBI in 2013 is classified, and it is definitely a crime to reveal it.

    • Mespo is conflating two separate issues. The First Amendment’s guarantee of freedom of the press is based on the public’s right to know, not on the virtue of journalists. It really doesn’t matter how the journalist acquired his/her information, absent some criminal misconduct such as breaking into a government building in the middle of the night. Washington, D.C. is full of hundreds of thousands of bureaucrats who can’t afford to live in the District, and who commute in daily from the boring suburbs of Virginia and Maryland, along with their brown bag lunches and cheap canvas briefcases. They live otherwise quiet, uneventful lives, unless they are targeted by spies, journalists or government contractors, who use the same tactics, targeting them for information with money or sex. Mespo seems to resent that some cute young journalism student targeted a dorky looking old man in an important position to get information to further her career. And it worked. Just a few years later, he is headed for prison, and she is a national security reporter for the New York Times. Yet he had to know the risk he was taking. He knowingly took the risk because he was lonely and horny and didn’t care. And it’s highly unlikely the sad old guy was her “main squeeze.” She undoubtedly had a young boyfriend, and she just played pops for information to make a name for herself and further her career. Is this unfair? Did she take advantage of a 50 year old man? Maybe. But the “honey pot” trap is as old as the spy game and the journalism game. Lonely men are offered sex. Drunks are plied with free drinks. Greedy or indebted employees are offered cash. In addition to spies and journalists, government contractors use these age-old tactics to entice employees who have the power to steer contracts their way. And sometimes the motive is less obvious. An otherwise faceless bureaucrat can be ‘part of the action’ or influence policy or expose corruption by feeding information to a journalist. But they all know the risk. I have no sympathy for a 50+ year old man who worked for the Senate Intelligence Committee for 30 years. He knew exactly what he was doing and why. And the journalist was less than virtuous. Big deal. Welcome to Washington.

      • “Mespo is conflating two separate issues. The First Amendment’s guarantee of freedom of the press is based on the public’s right to know, not on the virtue of journalists. It really doesn’t matter how the journalist acquired his/her information, absent some criminal misconduct such as breaking into a government building in the middle of the night.”
        ************************************

        Not really. The First Amendment guarantees information; Virtue guarantees credibility. Get it from your paramour and I’m skeptical.

      • Rights are not “based” on some particularly justification.
        Rights exist and are based on individual liberty to do as we please short of using force to infringe on the liberty of others or acting to harm others.

      • It does matter how journalists acquire information.

        The right to free speach is not a right to murder another to step up to the podium.

        Freedom of the press is the right, it is not a license to commit crimes.
        There is no “right to know”.

  7. In addition to “third on a match”, “domino effect” might also apply with leaker/girly-man/mean girl/back-stabber/weasel Comey eventually going down as well.

  8. So let me get this straight indicting a journalist is ho hum! We are quickly and dangerously becoming immune to attacks on the free press while watching propagandists like Hannity being elevated to advisers to the President and representatives of our country in foreign affairs.

    As to selling off the USA, Trump is holding a fire sale and all they need to do is give him a pat and a gift and he’s theirs!

    • So which journalist is getting indicted? And how is getting confirmation of illicit behavior infringing on the free press?

      Can you clarify this ‘fire sale’ of which you write? Are you referring to getting federal land into the atates’ hands?

      Thanks in advance.

    • Gas a Journalist been indicted ?
      To my knowledge only Obama has done that.

      I have further concerns about Turley’s recitation of facts – we do not know that the FBI started with surveilling Watkins.

      It appears that FBI got nothing but metadata from Watkins.
      We can question the legitimacy of that,
      but anything that the FBI got from Wolfe’s phones and devices is perfectly proper – so long as they got warrants.

    • You nailed it. Yes. Convict him. He spills the beans. If it’s useful, give him a little break, but not a big one. Once that scum of the earth DNC felon is convicted, the government owns all the chips. They wait for McScab’s attorney to propose a trade, and reply, “What do you have, what do you want?” Whatever he asks for, reply, “Stop smoking crack! We won’t give you that even if McScab brings peace to the ME and brings us the body of Jimmy Hoffa.”

  9. Second comment I would assume the law license will be pulled in any event and perhaps more but… better the whole dozen even if one has a cracked shell.

    • McCabe, like James Comey the Commie, & many others should keep the Security Clearance like Hillary, Bill Clinton & others as how else are these Traitors to the USA to make a living other then Selling out the USA’s Citizen’s interests.

      Yea Prof Turley, Sarc Off, by every Test there is no longer any rule of Law in the USA & that sucks!

  10. In this case I would lean towards no on immunity pre judice but consider an offer if testimony was involved that would lead to others being indicted and tried. ante judice. One must in this case be willing to go the whole two hog route and hope for the best offer. A lot of if’s and it would depend on who or whom. Meuller gets a vote of no confidence and so does Rosenstein. In this case to be repetitive one needs someone on the level of Trey Gowdy who has crossed ideological lines and always presented good and sufficient reasons but…. has never to my knowledge strayed from the Constitution.

    • Trey Gowdy was for the TPP which would have undermined our sovereignty. He’s the Right’s equivalent to the Liberals Elizabeth Warren. Fierce talk and no bite. Two actors as they enrich themselves at the expense of their constituents.

        • my response was to MA’s assertion that Gowdy never strayed from the Constitution. By selling out on the TPP he has enriched himself IMO as the corps realize he is one their side. But that’s ok. He will do just fine when he returns to SC.

          • Lets not go nuts. Gowdy is actually one of the good guys. He will be missed.
            But he is not right about everything.

            • dhlii – The TPP is something I definitely “go nuts” about. As does any woke citizen.

              Jamarl Thomas does a great job on the NAFTA issue – first 12 minutes

        • Just because one disagrees with Gowdy on one point, does not make Gowdy evil incarnate.

          Gowdy did nearly all the writing of the “nunes memo”.

          He is a former prosecutor and too inclined to see Mueller, Rosenstein and the FBI as inherently good.

          As Nunes noted, he thinks that Mueller is going to exhonerate Trump, because there is nothing there.

    • If McCabe wants immunity – his lawyer is going to have to do more than ask. He is going to have to offer something in return.

      I am not opposed to relatively sweeping immunity across many of the participants in this, particularly at the lower levels in return for information exposing all of what was going on.

      Without knowing the truth – we can not prevent this from occuring in the future.
      I do not want an outgoing President Trump doing to democrats what an outgoing president Obama did to republicans.

      Quite often we must decide between finding out the truth and prosecuting some of the guilty.

      A large part of what is wrong with the CIA/DOJ/FBI investigation of the election, is that the objective was NOT to deal with a foreign threat. It was to get dirt on a political opponent.

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