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New leak indictment spells disaster for McCabe

by Jonathan Turley, opinion contributor - 06/09/18 9:00 AM ET

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.

{mosads}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.

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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.