According to Andrew McCabe’s attorney, the former deputy director of the FBI should not be prosecuted for lying to agents because the Department of Justice has so many examples of unprosecuted lying within its ranks that it’s basically part of the culture.
“Additionally,” the New York Times reported on Friday, “people who are charged with lying to the F.B.I. are typically accused of committing the offense in the course of a criminal investigation, not an administrative inquiry . . . Mr. McCabe’s lawyers made the case to Mr. Rosen that other former officials were not prosecuted after they were caught lying to the inspector general’s investigators.”
That must be frustrating reading for General Michael Flynn who, based in part on McCabe’s essential statement, stands convicted of lying to the FBI with no underlying crime. McCabe, as I reported here, is the only person who can testify that Flynn was placed on notice that his conversation with the FBI was part of an investigation. The Wall Street Journal has an account of just how dirty the entrapment really was. The government has to show that Flynn lied about a matter within its “jurisdiction.” McCabe’s testimony, if Flynn’s case went to trial, would be essential because the phone call between Flynn and the ambassador of Russia was not a crime and he’s never been charged for anything he said on that call.
So, in sum, the Justice Department is relying on a confirmed liar to testify about the importance and seriousness of telling the truth to the FBI.
The Times article also reports that McCabe’s lawyers argued that he didn’t “lie,” he misremembered the facts. Didn’t the agents who interviewed Flynn say exactly the same thing after interviewing Flynn—that his inaccuracies about his phone call with the Russian ambassador were not intentional misstatements? Don’t believe those agents? How about McCabe’s own testimony?
As reported by the Daily Caller, McCabe has said the “conundrum that we faced on their return from the interview is that although [the agents] didn’t detect deception in the statements that he made in the interview . . . the statements were inconsistent with our understanding of the conversation that he had actually had with the ambassador.” McCabe recovered from the conundrum enough, however, to push successfully for Flynn’s prosecution. One wonders whether McCabe’s personal grudge against Flynn might have played a role in pushing forward with the prosecution.
The Times also suggests that the Justice Department’s refusal to prosecute McCabe, “also appears to be a sign that Attorney General William P. Barr wants to show that the Justice Department is independent from Mr. Trump: The notification came a day after Mr. Barr publicly challenged the president to stop attacking law enforcement officials on Twitter and said the criticisms were making his job more difficult.”
Barr, you may remember, criticized the president’s tweet condemning federal prosecutors’ recommendation of a nine-year sentence to punish Roger Stone for lying during a congressional investigation.
Stone, like McCabe, supposedly lied when there was no underlying crime. Stone had no inside knowledge of Wikileaks or alleged Russian hacking. He made some wild (and wrong) guesses about when the documents would be released based on his interpretation of publicly-available news accounts. He was convicted of lying about having emails that contained this kind of idle speculation. If he had no contact with Russians or Wikileaks, why was he being investigated in the first place? You know the answer.
In other words, the defenses of “I misremembered” or “I wasn’t lying to cover-up an underlying crime,” are available only to figures or people like Andrew McCabe inside the velvet rope of the upper tier of the “Just-Us” system. But if you’re on the lower tier, or worse, if you helped Trump get elected, those defenses are not available. Different rules for different levels of privilege.
You might hope the attorney general would forgive our elected president for criticizing a system that metes out punishment differently depending on how the Justice Department apparatchiks evaluate the politics of its target. The golden thread of control connecting the ballot box to the awesome power of the criminal prosecutor passes through the elected president. One might naïvely believe that Article II of the Constitution actually mandates that the president intercede when he sees such injustice.
No, says Bill Barr. Trump’s tweets make his job “impossible.” From inside the Justice Department, they don’t see the problem as one of unequal justice. They see the problem as the president using Twitter to tattle on the Justice Department to the public.
To Barr’s credit, he has now tapped an outside prosecutor to “help” former Mueller team member Brandon Van Grack with the Flynn case. That’s something, but it’s not what’s called for in this instance. Van Grack appears to have been involved in some very questionable Justice Department behavior and should not be in a position to compound his many misdeeds.
Barr should spend a little more time addressing the obvious misconduct of many of the hoax figures and a little less time trying to stop his boss from informing the electorate of valid complaints about the Justice Department.
For instance, there has never been anyone prosecuted for the many lies to the Foreign Intelligence Surveillance Act (FISA) court about the government’s secret campaign of spying on Americans. Nobody has ever been prosecuted for the CIA’s hacking of Senate computers. Glenn Simpson and Fusion GPS have not been prosecuted though they appear to have violated the Foreign Agent Registration Act repeatedly (including by representing Russian interests) and colluded with foreigners to directly interfere in the 2016 election. Simpson has never been prosecuted in spite of a criminal referral from Congress.
The Justice Department is still obstructing reporter Sharyl Attkisson who had her computer illegally hacked by the government. I caught former FBI director James Comey red-handed lying to the FISA court here. He, of course, is still getting rich from the Russia-collusion hoax. Then-Director of National Intelligence James Clapper lied to Congress to cover-up the government’s mass-surveillance program on Americans.
The Justice Department has taken the blindfold off Lady Justice so it can protect its political allies and punish its enemies. Courts and Congress have been powerless to shame them. If a few tweets are causing mild discomfort inside the Justice Department, then I hope the president keeps tweeting about this as often as possible.