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Monday, August 26, 2019

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.

23 comments:

  1. How my early life would have been different if my parents, my first girlfriend, the first wife embraced the ‘lacked candor’ concept. When did lying morph? #2TEIR.

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  2. BTW, not necessarily for the better. Let the truth out!

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  3. How does this relate to McCabe's suit for wrongful termination? Is the idea that, while there might not be enough evidence to convict him, the threshold was met for firing him? It would seem that one of these pursuits would have to be settled before the other one can proceed.

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    1. Weirdly, I don't think that's it. Back on 8/20 the WaPo had an article by a former U.S. attorney and deputy assistant attorney general explaining McCabe's case. Rather than going for the fences, McCabe is playing small ball. It hinges on the the fact that McCabe was fired just before his pension would have vested. His arguments are very technical and have to do with government employment regs. The arguments would apply, IMO, whether or not he did something wrong. Excerpt:

      https://www.washingtonpost.com/opinions/2019/08/20/why-andrew-mccabes-complaint-about-his-firing-is-likely-prevail/?noredirect=on

      McCabe’s first theory is that, as of 5 p.m. on that fateful Friday, five hours before his firing, he had completed all of his obligations for the pay period. He argues that the law deems career civil servants (which McCabe was) to become entitled to payment — and in McCabe’s case, his pension — at that precise point.

      Next, McCabe’s complaint argues that in its rush to terminate him, the Justice Department failed to comply with civil-service regulations requiring it to specify in writing the reasons for its decision and an effective date for removal.

      Finally, McCabe argues that, while the department announced that the termination was pursuant to “Order 1202,” it failed to comply with the technical requirements of that section.

      Thus, McCabe, who could have proffered broad theories of constitutional abuses, went small.

      He is implicitly relying on a series of cases holding that consistently applied statutory or regulatory employee protections can give rise to a property interest, backed by the due-process clause.

      It’s not a bulletproof approach. Expect the department to argue in its response, due 60 days from the filing, that McCabe doesn’t have a property interest in the practices and rules he relies on, or that the rules don’t apply to termination decisions (as opposed to, say, the accrual of vacation time).

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    2. My belief--and I'm no expert on this highly technical stuff--is that if he wins this case then even if he's later convicted of, say, the FISA fraud, he would still get his pension. I'm not positive, but it's my belief. Maybe someone else knows for sure.

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    3. The death of justice by a thousand admin technicalities. Maybe he gets away with it, maybe not. Once again the difference between the expectation, in law, between military and civil "service". Know several people shown the exit by .mil with nothing for the crime of not getting promoted. Military pensions can be rescinded for being convicted of a felony decades after retirement for offenses that have nothing to do with the military. No wonder they hold themselves as something special.
      Tom S.

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  4. Washington preferred polite society creates a misnomer, ‘lack of candor,’ this amuses me.

    That's it mo more no less.

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  5. I was going to guess that CNN's hiring of McCabe coincided with his foreknowledge that he was going to be charged by the OIG. You just blew holes in that idea.

    I'm still hanging with the AG.

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    1. I think that's smart. Everybody wants things to be simple, but few things really are. Sundance plays off that because he has an image to maintain.

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  6. Prosecution of a "leak" case, at this point is to miss the forest for the trees--to miss the broad side of the barn. Truly a relevant example of prosecutorial discretion where resources can be better utilized on more pressing matters.

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    1. If they feel they've got a really good case they'll go for it, but you don't want to lose a case that doesn't mean that much when you've got important cases pending. If you do that it may look like you're simply persecuting the guy. I understand that everyone should tell the truth to investigators, especially under oath, but sometimes you have to look at the underlying facts, too. Does it bother me that McCabe let the world know about the FBI investigation into the Clinton Foundation? Not really.

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    2. If one beleives in transparency in gov't and innocent until proven guilty then who or what is under investigation is only of passing interest. What concerns me is the idea of authorized leaks vs unauthorized. It validates the manipulation of the public for the benefit of the Deep State.

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  7. The salience of this issue is strategy, not tactics. Unless a statute of limitations deadline dictates otherwise, the best strategy is to simply put this decision on hold. This keeps McCabe in limbo and avoids a public relations disaster and the concomitant explosion of national cynicism. Barr doesn't need to make more enemies and a declination decision on McCabe will undoubtedly damage Barr's personal reputation and also that of the DOJ. No matter what is said, they will appear to be corruptly defending the DC Double Standard (which is a real thing by-the-way). Furthermore, Barr did not foresee the Epstein fiasco coming and has been playing defense ever since. This decision would reinforce the impression that Barr lacks the savvy to compete in the bare knuckle brawl that is brewing. I really wish he would hire someone who can consul him on how fight against a ruthless and unconstrained criminal gang.

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    1. It only looks bad for people who forget that none of this happened on Barr's watch. Putting McCabe on hold runs against the professionalism that Barr wants to return the DoJ to--it would show bad faith. If you know you've got a case, then you should charge it. If you don't, then in fairness you should decline. Even if the subject is a lowlife like McCabe. As far as I'm concerned, this leak thing is more of a distraction than anything else.

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    2. I agree. If anything it is consuming McCabe's resources and causing him, and some of his cohorts, sleepless nights (you never know when something might get unexpectedly exposed). Barr is probably sleeping like a baby.
      Tom S.

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  8. I'd rather that Mr. Barr be guided by the principles of what's right and what's winnable in court as opposed to "I must have a conviction at any costs."

    I trust his morality and his judgement. I very much want some convictions but not at the cost of being just like a Robert Mueller or Andrew Weissmann.

    Also, if I had to choose between convictions of the bad guys or the reelection of the President, I'd choose the latter. Not that the two are mutually exclusive.

    But we all ought to keep our thinking clear and our eyes on what's really important. Namely, the restoration of the Rule of Law.

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  9. I'd really like to know if most or all of whatever trials might be held against ant-Trump government wrongdoers would automatically be in DC or the DC area. Do you know anything about how this works, and do you think that with DC-area juries the risk of hung juries or even acquittals might be pretty high even if the cases seem strong?

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    1. Huber's GJ is presumably in Utah and Durham's in CT. Trials are held where the indictments are returned.

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  10. You're clearly bending over backwards defending Barr's DOJ conduct in all respects thus far, despite the "lack of candor" by McCabe and Strzok and the known malfeasance of Comey and Bruce Ohr. Out of curiosity, at what future date might you begin to lose confidence if no indictments are yet returned?

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    1. Out of curiousity, at what point will you read my painstaking explanations and thing them over seriously? All reports indicate ongoing serious investigation. Election season doesn't even start in earnest for months. I'll start worrying in, let's say, 2/20.

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    2. Barr could insist McCabe be treated like Papadopolous (overcharge and persecute) but then he couldn't clean the stables and righteously prosecute the Obama gang if he's going to act like just a new thug in town.

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    3. Ultimately, that's a symptom of the problems with liberalism that Deneen discusses.

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