Today, the Justice Department’s Office of Inspector General (“OIG”) referred former FBI Deputy Director Andrew McCabe to the U.S. Attorney’s Office in Washington, with a recommendation that he should be criminally prosecuted for causing sensitive law enforcement information to be leaked to the Wall Street Journal and then repeatedly telling lies to investigators and former FBI Director James Comey about having done so. The OIG’s previous report detailed how McCabe authorized an anonymous leak calculated to make it appear that he had resisted pressure by Loretta Lynch’s Justice Department to close down the FBI’s investigation of the Clinton Foundation during the 2016 presidential election campaign and then proceeded to cover his tracks with lies.
The report stated that, three times under oath, McCabe “lacked candor” (i.e., lied). The OIG also concluded that McCabe had lied to Comey when he denied any responsibility for the leak, and then lied to investigators when he claimed that he had kept Comey fully informed about his dealings with the Journal.
Yesterday, Comey appeared on ABC’s The View to promote his new book, A Higher Loyalty. When asked by host Megan McCain how he thought the public was supposed to have confidence in the FBI amid revelations that McCabe lied about the leak, Comey replied, “The inspector general found that he lied, and there are severe consequences in the Justice Department for lying as there should be throughout the government.” Comey added that McCabe’s situation highlighted the degree to which the FBI was devoted to holding those in power accountable.
“The McCabe case illustrates what an organization that’s committed to the truth looks like,” he said. “I ordered that investigation. We investigate and hold people accountable.” [Emphasis added]
Last evening, McCabe’s lawyer, Michael Bromwich, hit back by publishing a statement arguing that both Comey and the OIG’s report mischaracterized the extent to which his client had kept Comey apprised of his interactions with the Journal.
In his statement, Bromwich said that “the report fails to adequately address the evidence (including sworn testimony) and documents that prove that Mr. McCabe advised Director Comey repeatedly that he was working with the Wall Street Journal on the stories in question prior to publication.”
Now that the OIG has referred McCabe to the U.S. Attorney for criminal action, the dispute between the former Deputy Director and Comey should reach critical mass. In his appearance on The View, Comey, in his sanctimonious way, condescended to grant McCabe absolution of a sort when he said that “Andy is still a good person” even though the OIG found that he had lied.
It is doubtful that, as the noose tightens around his neck, McCabe feels the same way about Comey.
Compare and contrast. McCabe has been fired, the OIG has branded him a liar, and now he appears to be headed for criminal prosecution. Meanwhile, his friend Comey is on a nationwide self-adoration tour promoting his best-selling self-aggrandizing account of how he repeatedly saved America from the forces of darkness thanks to his moral superiority. And, oh-by-the-way, Andy’s a liar.
I wouldn’t be surprised if, under these circumstances, McCabe’s head exploded. But hopefully, before that happens, McCabe and his legal team will strike back by sharing publicly the sworn testimony and documents that they claim prove Comey’s a liar.
Despite the OIG’s judgment call that McCabe did not apprise Comey of the leak, it is highly unlikely that he would not have cleared his actions with the Director given that they pertained to a story regarding the FBI’s investigation of the Clinton Foundation in the middle of the election. That investigation had to be one of the biggest matters on Comey’s agenda.
But as the sun sets on his once brilliant career and the U.S. Attorney’s Office cranks up its legal chainsaws, McCabe shouldn’t feel isolated. Yesterday, eleven Members of Congress made a criminal referral to the Justice Department against members of the FBI who used the unverified dossier compiled by former British spy Christopher Steele and paid for by the Clinton presidential campaign and the Democratic National Committee to obtain Foreign Intelligence Surveillance Court warrants to spy on the Trump campaign and presidency. The lawmakers also referred former Attorney General Loretta Lynch and others for threats made against an FBI informant who provided information on the Russian nuclear industry and the approval in 2010 to sell roughly 20 percent of American uranium mining assets to Russia. This so-called Uranium One deal was approved by Secretary of State Hillary Clinton after her husband, former President Bill Clinton, received a $500,000 fee for giving a speech in Moscow and over $140 million had been donated to the Clinton Foundation by persons who stood to benefit from the deal.
They also referred Comey, Clinton, Lynch, and McCabe for their involvement in the investigations of President Trump. FBI Special Agent Peter Strzok and FBI lawyer Lisa Page, whose anti-Trump text messages became public last year, were also included in the referral.
They referred “all DOJ and FBI personnel responsible for signing the FISA warrant application that contained unverified and/or false information” for possible violation(s) of federal law.
The lawmakers cited a May 2017 New York Times article which reported that Comey had leaked classified memos. They state that “Comey wrote memoranda detailing alleged conversations between himself and President Trump to document ‘what he perceived as the president’s improper efforts to influence a continuing investigation.’” The Times article reports that Comey “created similar memos — including some that are classified — about every phone call and meeting he had with the president,” the letter states.
In his book, Comey admits that some of these memos contained classified material. “In light of the fact that four of the seven memos were classified, it would appear that former Director Comey leaked classified information when sharing these memos with Professor Richman,” the individual he used as a cut out between himself and the Times.
Clinton has also been referred for her role in the dossier compiled by Christopher Steele, who was hired by opposition research firm Fusion GPS. Her campaign did not reveal that it had paid for the research on its campaign finance disclosure forms. In this regard, they stated that “A lawyer representing the Clinton campaign and the Democratic National Committee paid Washington firm Fusion GPS to conduct research that led to the Steele dossier, according to an October 24, 2017, report in The Washington Post,” the letter states. “Accordingly, for disguising payments to Fusion GPS on mandatory disclosures to the Federal Election Commission, we refer Hillary Clinton to DOJ for potential violation(s) of [campaign finance laws].”
If I were representing McCabe, I would carefully review with him yesterday’s congressional referral with an eye to determining where and how my client could be of service to prosecutors. There’s no reason why Andy should be left holding the bag while the insufferable Comey and the others skate. The time for McCabe to cut a deal with the U.S. Attorney is fast approaching. As we used to say to potential cooperators, he better get on the bus before it leaves the station
And, speaking of buses, with a bit of luck, Comey and the others are going to need one for their OJ-style slow speed chase. A Ford Bronco’s way too small.
George Parry is a former federal and state prosecutor who practices law in Philadelphia. He blogs at knowledgeisgood.net.