McCabe just made life tough for Comey and the special counsel

Following his termination late Friday night, former FBI deputy director Andrew McCabe declared that he was “singled out” after “unrelenting” attacks by President Trump and critics. McCabe’s objections are less than credible, given the virtually unprecedented recommendation of career officials to fire the one-time acting FBI director.

However, McCabe may have rectified his “singled out” status with his long statement criticizing his termination: In the middle of it is a line that could be viewed as incriminating fired FBI director James Comey, not just in leaking sensitive information but also in lying to Congress.

McCabe is accused of misleading investigators about allegedly giving information to a former Wall Street Journal reporter about the investigation of Hillary Clinton and the Clinton family’s charitable foundation. McCabe asserts in his post-firing statement that he not only had authority to “share” that information to the media but did so with the knowledge of “the director.” The FBI director at the time was Comey.

{mosads}“I chose to share with a reporter through my public affairs officer and a legal counselor,” McCabe stated. “As deputy director, I was one of only a few people who had the authority to do that. It was not a secret, it took place over several days, and others, including the director, were aware of the interaction with the reporter.”

If the “interaction” means leaking the information, then McCabe’s statement would seem to directly contradict statements Comey made in a May 2017 congressional hearing. Asked if he had “ever been an anonymous source in news reports about matters relating to the Trump investigation or the Clinton investigation” or whether he had “ever authorized someone else at the FBI to be an anonymous source in news reports about the Trump investigation or the Clinton investigation,” Comey replied “never” and “no.”

The Justice Department’s inspector general clearly saw this “interaction” as problematic in seeking answers from McCabe. If the inspector general considered this to be a leak to the media, any approval by Comey would be highly significant. Comey already faces serious questions over his use of a Columbia University Law School professor to leak information to the media following his own termination as director.

In leaving the FBI last year, Comey improperly removed memos about the Russian investigation that he wrote concerning meetings with Trump. Since these memos discussed an ongoing FBI investigation and were written on an FBI computer, the bureau reportedly confirmed they were viewed as official documents subject to review and approval prior to any removal or disclosure.

Comey could have given the memos to the congressional oversight committees. Instead, he removed at least seven memos and gave at least four to his professor-friend to leak to the media. Four of the seven memos that Comey removed are now believed to be classified. Since he reportedly gave four memos to his friend to leak to the media, at least one of the leaked memos was likely classified.

Now, McCabe appears to be suggesting that Comey was consulted before the alleged leak to the media on the Clinton investigation. Many of us had speculated that it seemed unlikely McCabe would take such a step without consulting with Comey. Yet, Comey repeatedly stated that he had never leaked nor caused anyone to leak information to the media.

The timing for Comey could not be worse. He already has started selling tickets, for roughly $100 each, to attend the tour for his forthcoming book, “A Higher Loyalty: Truth, Lies, and Leadership.” If he gave McCabe the green light for his “interaction,” the title could prove embarrassingly ironic.

If this was determined to be a leak with his approval, Comey likely would be labeled not just a leaker but a liar. Worse, his second-in-command just lost his pension after more than 20 years with the bureau, while Comey is about to cash in on a book and publicity tour potentially worth millions.

Comey also will be releasing his book around the same time as the inspector general’s report is expected to be made public. The inspector general reportedly will detail a number of irregularities under Comey’s watch. So the book could look more like a work of fiction if the inspector general finds that the FBI was a mess under Comey’s “leadership.”

McCabe’s termination is likely to only add to Comey’s problems. Four U.S. senators are calling for appointment of a second special counsel to investigate the Justice Department during the Clinton investigation. Moreover, there could be serious questions raised over the indictment of former Trump national security adviser Michael Flynn for misleading investigators, which is the same allegation that McCabe faced before his termination. McCabe’s case could still be referred to prosecutors for possible indictment under the same provision used against Flynn.

The McCabe controversy could also make life tougher for special counsel Robert Mueller. While McCabe lashed out at Trump in his statement, he may have just given Trump the long-sought cover to use his pardon power. If McCabe is not charged, Trump could cite that decision as the basis for pardoning Flynn, as a matter of equity and fairness.

More generally, the apparent conduct of both McCabe and Comey have fulfilled the narrative long advanced by Trump of a biased and unprincipled FBI investigation. Given Trump’s ill-advised inclination to fire Mueller in the past, these allegations of leaks and misrepresentations inside the FBI could rekindle Trump’s interest in forcing an end to the investigation that has dogged his administration for a year.

Trump would be unwise to take such action. Instead, McCabe’s firing should reinforce calls for an independent investigation with the maximum level of transparency. The same is true for the Russia investigation of the Trump campaign. This country is deeply divided over the allegations against Trump and his opponents. We will not overcome this chasm until we are satisfied that we have the full factual record from the Clinton and Russia investigations.

This is particularly true for the FBI, which will not be able to regain the trust of many Americans without making a clean break from scandal. That means total transparency, which runs against the bureau’s culture. Yet, without greater disclosure, the public will be left wondering if a sense of Comey’s “Higher Loyalty” dangerously blurred the lines between “Truth, Lies, and Leadership.”

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