The McCabe Test For Bill Barr

The NYT is reporting today that prosecutors are nearing a decision on whether to indict Andrew McCabe, former Deputy Director of the FBI: Prosecutors Near Decision on Whether to Indict Andrew McCabe. According to the article there has been turmoil in the DC US Attorney's office surrounding the case. Two prosecutors have left the case and the case itself has dragged on without a decision for so long that the Grand Jury has expired. One assumes that this is connected to the Swamp Creature Jesse Liu--US Attorney for DC. Liu was responsible for the coverups in the Awan Brothers and James Wolfe cases. In an unusual move, the Deputy AG, Jeffrey Rosen is now involved in the decision. At CTH, sundance is framing this all as "a moment where we can determine the intents and motivation of U.S. Attorney General Bill Barr." Sundance doesn't say it in so many words, but I have to assume he means: If McCabe is not prosecuted, that means that Barr's "intents and motivation" are corrupt--he's covering up to protect the reputation of DoJ and the FBI. It's part of the "two-tiered justice system" in DC. Here's the link to CTH: Bill Barr’s Test – U.S. Attorney Jessie Liu Punts McCabe Indictment Decision Back to Main Justice.

There's a lot wrong with sundance's reporting here. You can start with his acceptance of the NYT headline. Anyone would be forgiven for thinking that if McCabe isn't indicted at this juncture he's home free. Nothing could be further from the truth.


When you read down in the NYT article you'll realize that this case has to do with the OIG investigation into the leak to the WSJ. In other words, it's a purely internal DoJ investigation. Sundance--for reasons best known to himself, whether incompetence or actual dishonesty--chooses not to reveal that important information to his readers. Here's the background from the NYT, and it's key to understanding the significance of this case:

The case against Mr. McCabe, 51, is centered on the findings of a scathing Justice Department inspector general’s office report last year that found that he had lacked candor on four occasions when questioned by the office’s investigators. Prosecutors appeared to be focused on Mr. McCabe’s answers about whether he authorized the disclosure of information to a Wall Street Journal reporter in October 2016 for an article about an investigation into the Clinton Foundation.

When initially questioned by F.B.I. agents in May 2017 about the disclosure to the reporter, Mr. McCabe said he had not approved it and did not know who did. Other evidence contradicted his assertion. Then in late July, two investigators with the inspector general’s office interviewed Mr. McCabe about the disclosure to the newspaper. They determined he had not been truthful, saying he had essentially made the same false denial as he did previously in May, “except this time the false denial was made in an audio-recorded interview.”

Notice right up front--whether or not McCabe "lacked candor" or outright lied, this investigation has nothing to do with the Russia Hoax. Not with the fraudulent Crossfire Hurrican investigation, not with the equally fraudulent FISA applications, not with the frame-up of Michael Flynn, and not with the initiation of the Team Mueller investigation. Guess what? There are investigations into all those matters that are still ongoing, and every single one of those matters is far more important than a penny ante leak case of this sort. Could we please have some perspective?

Of course we'd like a weasel like McCabe to get his deserts for everything without exception, but this case is not as open and shut as one might initially wish to believe. The NYT frames the central issue well:

Mr. McCabe had authorized Ms. Page to speak with the Wall Street Journal reporter, but he told investigators on two occasions that he did not remember doing so. He later corrected himself.

Ms. Page told the grand jury that Mr. McCabe had no motive to lie because he was authorized as the deputy F.B.I. director to share the information with the newspaper. Her assertion could be damaging for prosecutors, who would have to prove that Mr. McCabe knowingly and intentionally lied to investigators. A lawyer for Ms. Page declined to comment. 

The inspector general said that Mr. McCabe’s decision to release the information to the newspaper was self-serving — “an attempt to make himself look good,” according to the office’s report — but Mr. McCabe has said it was justified and in the public’s interest. The inspector general said the disclosure effectively confirmed the existence of the Clinton Foundation investigation, which James B. Comey, then the F.B.I. director, had refused to do in July 2016 in congressional testimony.

Was it in the public interest that we should all know that the FBI was investigating the Clinton Foundation? Speaking for myself, I like to know those sorts of things, but I really don't have a dog in this particular fight, so ... you be the judge. Leaks do sometimes serve the public interest, and some government officials are authorized to make disclosures to the press. That's not what the case is about. The case is strictly about whether McCabe was truthful when speaking with OIG.

But even there, it's not so easy. This is not a "false statement" case like the Flynn case--it's a perjury case. In other words, unlike in the Flynn case where the FBI agents chatted with Flynn and prosecutors later charged Flynn with saying things that were untrue, in McCabe's case the OIG people administered an oath to McCabe and then asked him questions that he was basically compelled to answer. Under the perjury statute you have to show that the false statements were knowing and intentional. And when I say "show" I mean prove beyond a reasonable doubt. That's not so easy to do. McCabe says he forgot a few things and then later corrected himself. Could a jury believe him? Yes. It's up to the prosecutors to decide whether they think they can prove "knowing and intentional." Beyond a reasonable doubt. And they also have to decide whether it's right to bring such a case, even if they think they can convince a jury.

Here's my bottom line. The world isn't going to come to an end if McCabe isn't indicted for confirming to the WSJ that the FBI had an investigation on the Clinton Foundation. It won't even come to the sky falling. McCabe will remain in deep, deep, legal jeopardy pending all those other investigations.

Bill Barr has faced serious tests already. He'll face many more in the future. This just isn't one of them, no matter what hysterics like sundance want you to believe.

ADDENDUM: If you want to see how sundance's post is playing out, just take a look at the comments at FR. These knuckleheads have no clue re what it's all about. If Comey, McCabe, and the rest skate on the Russia Hoax nobody will be sicker than I'll be. But this is not a time to be publishing idiocies that are simply dishonest.