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Did McCabe commit a crime? Mueller owes public answers

by Jonathan Turley, opinion contributor - 03/19/18 10:00 AM ET

In the movie classic “Three Days of the Condor,” a weathered spy master played by John Houseman spoke about his work after the Great War “before we knew enough to number them.” When a subordinate asks if he missed “that kind of action,” Houseman responds dryly, “Nope. I miss that kind of clarity.”

Robert Mueller may have the same longing after the termination of FBI deputy director Andrew McCabe, whose alleged misconduct involved the same acts that led the special counsel to indict figures like former National Security Adviser Michael Flynn, George Papadopoulos, Rick Gates and Alex van der Zwaan. If McCabe did lie to investigators, the question is whether a lack of clarity will lead to a troubling lack of consistency in the interpretation of the criminal code.

{mosads}The inspector general at the Justice Department questioned McCabe about the leaking of information to the media during the investigation of the Clinton Foundation. According to reports, the investigators concluded that McCabe misled them on his role as the source of sensitive information given to the Wall Street Journal.

The Office of Professional Responsibility (OPR) later recommended that McCabe be fired, an exceedingly rare recommendation from career staff at the Justice Department. Whatever the content of the report, they were serious enough to reportedly lead FBI Director Christopher Wray to demand that McCabe take a terminal leave weeks before he was fired by Attorney General Jeff Sessions.

Sessions later issued a statement that the “OIG and FBI OPR reports concluded that Mr. McCabe had made an unauthorized disclosure to the news media and lacked candor — including under oath — on multiple occasions.” The inspector general could still refer this record to prosecutors for possible criminal charges. Mueller, however, could face more immediate questions in light of the McCabe action. Mueller has maintained that any intentional false or misleading statement to investigators constitutes a crime under 18 U.S.C. 1001. Not “multiple” statements, but any statement.

Moreover, these statements were not described as instances as a “lack of candor” but lies. In Flynn’s case, investigators working under Comey reportedly concluded that Flynn was not intentionally misleading them when he denied that sanctions were discussed in meetings with Russian diplomats during the transition. Prosecutors are not given the discretion to charge people with crimes simply because it is convenient to induce cooperation. They must establish that the underlying crime was committed and that they are following a consistent interpretation of the criminal code.

For McCabe’s part, he insisted that he did not intentionally mislead investigators in giving the “sensitive” information to the Wall Street Journal. He also insists that he had the authority to give nonpublic information to the media. Yet, Flynn also had authority to meet with Russian diplomats as part of the transition period. Both men were targeted not due to the underlying actions, but allegedly lying about them.

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If McCabe is not indicted, Mueller may miss the clarity of his earlier indictments. And it may get worse. As discussed in an earlier column, McCabe indicated that he informed Comey of his “interaction” with the Wall Street Journal. However, Comey previously denied that he ever leaked information or approved such leaks by others. If the inspector general considered McCabe a leaker, it would implicate Comey, who is a key witness for Mueller, in not just the same leak but false statements to Congress. Not only would it make it difficult to call Comey as a witness, it could lead some cooperating witnesses like Flynn to question the veracity behind their plea agreements.

McCabe could spell trouble for Comey in another respect. Various news organizations are reporting that McCabe wrote memos on his meetings with Trump and gave those memos to Mueller. There is no allegation that he leaked those memos. That stands in stark contrast to Comey who removed his memos after he was fired and then gave his memos to his friend, Columbia Law professor Daniel Richman, who then leaked the information to media. The FBI has already confirmed that these memos were FBI documents subject to review and release procedures.

Worse yet, the FBI has confirmed that four of the seven memos that Comey removed are now believed to be classified. Since he reportedly gave four memos to his friend, at least one of the documents given to Richman may have contained classified information. Comey could have given his memos to the House and Senate Intelligence Oversight Committees, or simply informed the members of their existence. Instead, he elected to remove them and leak information to the media. Comey has faced no consequences for his misconduct.

In the end, McCabe could still easily receive his estimated $60,000 a year pension for life before reaching retirement age. (He never truly lost his pension, which is “vested” under federal law. He was seeking early pension at 50 under a special provision). In a tweet by Andrea Mitchell of NBC News, it was suggested that a “friendly member of Congress” could hire McCabe briefly so he could “qualify for pension benefits by extending his service the extra days.”

Various Democratic members have already lined up with such offers for McCabe, which might not work since he may need a federal law enforcement position and was fired “for cause.” In the meantime, Flynn reportedly agreed to his plea deal after legal costs drained him of his savings and forced him to sell his house. He would dearly love to be worrying about a pension rather than prison at this point.

There may be distinctions to draw between the statements made by McCabe and defendants like Flynn. But they, and the public, deserve an explanation from someone and maybe even a modicum of clarity on what constitutes a crime in these investigations.

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