Lawyers for the former FBI deputy director are asking whether the Justice Department is using a double standard to pursue him.
Questions are still swirling about whether former FBI Deputy Director Andrew McCabe will be indicted on charges of lying to investigators about events just before the 2016 election. But McCabe’s lawyers and others tracking the issue are zeroing in on whether the Justice Department is employing a double standard to pursue him.
The doubts stem from Attorney General William Barr’s notable public skepticism about potential obstruction of justice charges against President Donald Trump, especially after special counsel Robert Mueller concluded that there was insufficient evidence to make a case that Trump or anyone on his campaign illegally “conspired or coordinated” with Russia during the 2016 U.S. presidential race.
Barr and other Trump allies repeatedly suggested that the president couldn’t be guilty of obstruction or that such a case would be exceedingly difficult to prove unless there was some underlying crime — like accepting illegal help from the Russians.
Yet federal prosecutors have been pressing forward with a false-statement case against McCabe even without any indication that the matters he is accused of lying about — whether he’d authorized FBI personnel to talk to a Wall Street Journal reporter about an investigation into the Clinton Foundation — involved some illegality.
“DOJ simply does not bring criminal cases in these or similar circumstances,” McCabe’s legal team wrote in a recent memo arguing against his prosecution. “As Attorney General Barr noted in his March 24, 2019 letter analyzing whether the President had obstructed justice, the absence of evidence of an underlying crime is centrally relevant to whether a person had criminal intent.”
“While some of the essential elements of obstruction of justice differ from the essential elements of false statements, the Attorney General’s analysis is equally applicable here: the absence of an underlying crime, or even underlying misconduct, bears directly on whether an individual had the requisite criminal intent to make a false statement, and whether the government will be able to prove that a defendant had such criminal intent,” the memo says.
A source close to McCabe’s legal team told POLITICO that as McCabe’s lawyers tried to head off his prosecution, they raised Barr’s stance with respect to Trump both with the U.S. Attorney’s Office in Washington and with officials from Deputy Attorney General Jeffrey Rosen’s staff. Those officials remained poker-faced in response to the argument, the source said.
“There was no response. No sign of traction of any kind,” the source said.
McCabe’s legal team, headed up by former Justice Department Inspector General Michael Bromwich, did eventually hear back from both the U.S. Attorney’s Office and Rosen’s office that the pleas were unsuccessful and that plans to charge McCabe were going forward.
Where those plans stand at the moment remains a bit murky after signs that the case was set to be presented to a grand jury for indictment last week. Officials won’t comment on the status of the case. McCabe’s attorneys say they’ve inquired but gotten no updates.
Nevertheless, some legal experts say McCabe’s lawyers’ argument about Barr’s earlier stance in the Trump-Russia probe has merit and deserves serious consideration by the Justice Department.
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