A tale of two lies: Stone, McCabe and the danger of a double standard for justice

America is now officially more confused than Boris Johnson’s barber. 

President Trump’s campaign adviser, Roger Stone, was arrested by an FBI SWAT team, tried and convicted for lying to Congress and messing with a witness, and nearly had a book the size of a blue state thrown at him at sentencing. Meanwhile, Andrew McCabe, the fired FBI deputy director who, while in his official capacity, lied under oath in violation of a federal statute, won’t be charged by the Department of Justice (DOJ) for any criminality. Go forth, Andrew, and make more money as a CNN analyst.

What seems confusing is really becoming quite plain to all of America: Those on one side of the political aisle are feeling the heat of the justice system, while those on the other side are not. It’s kind of like political “stop and frisk” enforcement: “Hey, Republican, what are you doing in this neighborhood? Up against the wall. Let’s see what we can find on you that we can take to court.”  

Yet, while frisking, the enforcers ignore the well-heeled looters behind them, destroying records, selling pay-for-play access, seeking Russian propaganda for political dirty tricks, lying to Congress and the FBI — all activities which, to date, seem consequence-free.  

Stop and frisk is a perilous policy, whether practiced on the street or for political advantage. It exposes the justice system to unconstitutional overreach and perceptions of an unfair two-tiered approach to certain citizens.  

Most don’t know Roger Stone from Roger Ramjet, who was popular long ago, when Stone started practicing political sleaze for Richard Nixon. Oh, we’re somewhat aware that Mr. Stone is mixed up in the whole Russia-Trump collusion thingy, but not many of us are exactly sure what he did wrong.   

What he did wasn’t good. He blatantly and provably told lies to Congress, and he meddled with another potential witness. Both are foolish with a capital “F.” Some Stone supporters are claiming his trial was rigged by an Obama-appointed judge and a Democratic apparatchik moonlighting as the jury foreman. Well, shame on Stone’s counsel for not Googling the foreman, but that argument ultimately won’t hunt. Justice Clarence Thomas and a jury of Young Republicans would have had to convict him on the considerable evidence.  

So shed no tear for Roger Stone. He’s a lifelong political hack, and who among us objects to political hacks spending some time in prison orange? His main mistake was not being a senior executive of a large law enforcement or intelligence agency, where you can lie under oath but not much happens to you. Sorry, Roger, you’re just a party operative. You don’t get those courtesies. 

But even political tricksters, painful as it might be, deserve considerations of fairness, and Stone’s case raises some troubling questions.

It is well-established case law that a defendant cannot be convicted on evidence that was wrongfully collected by law enforcement. The interesting and equitable question is whether Congress and, subsequently, the special counsel had a sufficiently justifiable reason to investigate Stone in the first place. The same question can be asked regarding those other Trump campaign associates George Papadopoulos and Carter Page, former Trump national security adviser Michael Flynn, and possibly Trump campaign manager Paul Manafort.   

The DOJ inspector general’s sterile report notwithstanding, I don’t believe — based on considerable experience conducting and managing counterintelligence investigations — that McCabe and fired FBI director James Comey had sufficient legal basis to open the original FBI investigation, particularly one to target U.S. persons, and from which flowed the prosecution of Stone. There is a reasonable chance that U.S. Attorney John Durham may reach the same conclusion as a result of his investigative efforts.

That original FBI investigation was subsumed by special counsel Robert Mueller who determined that the ostensible reason for starting the investigation — namely, collusion between the Russian government and the Trump campaign — didn’t actually exist.  

In other words, there is a strong argument that the government had no legal basis or right to reach out and frisk Roger Stone in the first place and subsequently place him in a position of legal peril of the government’s making.

Roger Stone shouldn’t have lied. If lying is not confronted always and everywhere, we have no credible system of justice. But, equally, it is at least plausible that he was wrongly placed in a position to lie absent a legal reason to confront him. That erodes faith in our justice system just as much.

The decision not to charge or prosecute Andrew McCabe has conservatives rending their garments across the country. It is, admittedly, a jarring and puzzling juxtaposition to the whole Roger Stone and Michael Flynn episodes.  

In the middle of all of this is Attorney General William Barr, who seems to have been forced into a three-dimensional chess game given the mess he inherited from the special counsel and a president whose tweets do indeed make Barr’s job harder. (Contrary to some opinion spinners, the president cannot say anything he wants simply because he’s the nation’s top law enforcement officer. No one in law enforcement leadership has that liberty, including the president. The risks to due process are too great.)

Barr’s past week was breathtaking. He rightfully questioned the unprecedented sentencing sought by Stone’s prosecutors after being blindsided by them. He promptly suffered the indignity of being labeled the president’s lapdog, with calls for his impeachment. A few days later, his department declined prosecution of McCabe, one of the president’s most reviled targets. If he was ever on the presidential lap, he just got booted off.  

And that may have been part of the strategy regarding the McCabe decision. The Democrats want a discredited Barr; they want him perceived as doing the president’s bidding. That way, Durham and his whole investigation, which probably won’t turn out well for their party, becomes discredited as well. Exonerating McCabe throws a wrench into that calculus and helps protect Durham’s efforts.

Besides, Barr may have been persuaded that there are greater legal jeopardies awaiting Mr. McCabe as a result of Durham’s investigation, and so the prosecution declination for lying was made more palatable.  

Others have speculated that the president’s tweets about McCabe made a successful prosecution less likely. Perhaps; I’ve seen prosecutors chicken out for lowlier reasons. But it’s hard to believe that would be the ultimate driver behind the declination.

Another possibility is that Andrew McCabe and DOJ reached a deal based on his cooperation with ongoing inquiries. McCabe’s public statements on CNN following the DOJ declination, however, would seem to downplay that possibility, at least on its face.  

But he logically would be motivated to cooperate especially after his former boss, James Comey, publicly threw him under the bus during one of Comey’s town-hall spa treatments on CNN. The firing and loss of full pension for both McCabe and former FBI official Peter Strzok sounded “just about right” to the disgraced former FBI director. Don Corleone couldn’t have distanced himself from his “made men” any better.  

The dangerous perception, however, is that we truly do have a dual system of justice, an unequal application of law and penalty. This we cannot afford. This we must fight against every day. The attorney general’s chess game cannot end in checkmate to the politically motivated who like a double standard, two-tiered system just fine.

Kevin R. Brock, former assistant director of intelligence for the FBI, was an FBI special agent for 24 years and principal deputy director of the National Counterterrorism Center (NCTC). He is a founder and principal of NewStreet Global Solutions, which consults with private companies and public-safety agencies on strategic mission technologies.