Will Andrew McCabe Be Prosecuted?

Andrew McCabe, the former deputy FBI director and frequent target of President Trump, who was recently fired days short of retirement, has been referred for criminal prosecution by the Justice Department Inspector General. Although former prosecutors described the referral as routine, it comes in the context of McCabe’s extraordinary status as a frequent scapegoat for the president’s legal woes.

“Any IG report that includes conduct that anyone could ever think is criminal or worrisome will get referred for the U.S. Attorney to take a look. I would be quite surprised if the U.S. Attorney presses charges here, but the more important point here is it’s a routine referral,” Harry Litman, a former deputy assistant attorney general and a law professor at UCLA, said. “It follows as a matter of course from an IG report finding a certain kind of fault that could have any potential criminal conduct involved.”

A recent IG report found that McCabe “lacked candor” in his conversations with internal investigators about a fall 2016 story, which confirmed the existence of an ongoing probe of the Clinton Foundation during the presidential election. McCabe has said he was acting to defend the Bureau’s reputation, but the IG report concluded that McCabe was defending himself when he authorized disclosing a conversation with a Justice Department official to a Wall Street Journal reporter, in which McCabe felt he was resisting pressure to slow-walk the Clinton probe. The report also found that McCabe misled investigators about his role in that disclosure. Despite the fact that that story reflected negatively on Clinton rather than Trump, the president has fixated on McCabe because of his wife’s unsuccessful run for state office in Virginia as a Democrat. McCabe has denied lying to Justice Department investigators.

McCabe’s attorney, Michael Bromwich, released a statement Thursday afternoon saying they had been told of the referral. “We are confident that, unless there is inappropriate pressure from high levels of the Administration, the U.S. Attorney’s Office will conclude that it should decline to prosecute,” he said. News of the referral was first reported by The Washington Post.

Bruce Green, a former federal prosecutor who is now a law professor at Fordham University, emphasized the IG’s reputation for independence. “Inspector Generals and federal prosecutors often come under pressure, political and otherwise, especially in high-profile cases. If they are good at their jobs, they don’t respond to pressure, they adhere to internal policy and professional norms,” Green said. “One just can’t assume that, because McCabe’s case has political implications, the Inspector General succumbed to pressure or federal prosecutors will do so. “

Special Counsel Robert Mueller is currently investigating potential links between the 2016 Trump campaign and a Russian influence operation aimed at electing Trump, as well as potential obstruction of justice in connection with the president’s decision to fire former FBI Director James Comey last May. Trump has portrayed that inquiry as a “witch hunt” and accused the Bureau of being biased against him, an allegation for which there is scant evidence.

Nevertheless, David Gomez, a former FBI agent who is now a cyber and homeland-security fellow at George Washington University, said the president’s attacks were taking their toll.

“In talking to active-duty agents, what I find is that most are disgusted by the way a personnel matter of a dedicated career employee of the FBI is being played out in public, with vicious verbal attacks by the president now an almost daily occurrence,” Gomez said. “Rank-and-file agents work long hours, conduct sometimes dangerous investigations, and are now being labeled treasonous liars and criminals by some factions of the media, all because of the president’s anger and antipathy over Mr. Mueller’s Russia investigation. Many are now asking, ‘For what? To be attacked for doing our job?’”