The Justice Department’s inspector general has referred Andrew McCabe to the U.S. attorney’s office in Washington, D.C., for a possible false-statements prosecution. It was big news this week. But the story of how the FBI’s former deputy director lied to investigators, repeatedly, is mainly of interest to him. It is the story of what he lied about that should be of interest to everyone else.
He lied about leaking a conversation in which the Obama Justice Department pressured the FBI to stand down on an investigation of the Clinton Foundation.
The report concludes that the former deputy director “lacked candor,” the standard for internal discipline at the FBI, from which McCabe was fired. It is a charge similar to those spelled out in the federal penal code’s false-statements and perjury laws. Specifically, the report cites four instances of lack of candor; more comprehensively, McCabe is depicted as an insidious operator.
About two weeks before Election Day 2016, the then–deputy director was stung by a Wall Street Journal story that questioned his fitness to lead an investigation of Hillary Clinton, the Democrats’ nominee. McCabe’s wife had received $675,000 in donations from a political action committee controlled by the Clintons’ notorious confidant, Virginia’s then–governor Terry McAuliffe — an eye-popping amount for a state senate campaign (which Mrs. McCabe lost). It was perfectly reasonable to question McCabe’s objectivity: The justice system’s integrity hinges on the perception, as well as the reality, of impartiality.
The reporter on the story, Devlin Barrett (then with the Journal, now at the Washington Post), soon had questions for the Bureau for a follow-up he was working on: Back in July, according to Barrett’s sources, McCabe had instructed agents to refrain from making overt moves that could alert the public that Hillary Clinton, the Democrats’ nominee, was yet again on the FBI’s radar — this time, owing to a probe of the Clinton Foundation.
Barrett’s call came in just as the Bureau was dealing with the controversy over Director James Comey’s reopening of the Clinton emails investigation. Comey convened a meeting of the FBI’s leadership team to discuss reviewing emails, some of which were classified, that had been found on the private computers of Clinton aide Huma Abedin and her estranged husband Anthony Weiner (who had been “sexting” with a minor). Because he was out of town, McCabe telephoned in to the meeting. He was humiliated, however, when Comey instructed him to get off the call. The director and his chief counsel were concerned about the perception of pro-Clinton bias.
After stewing for a few hours, McCabe got in touch with his special counsel, Lisa Page — the FBI lawyer now infamous, along with her alleged paramour, FBI agent Peter Strzok, for thousands of text messages, many bracingly partisan and anti-Trump. McCabe instructed Page to rebut Barrett’s story with a leak. Specifically, she was to tell Barrett about a tense conversation on August 12, 2016, between McCabe and a high-ranking Obama Justice Department official. The leak would show that McCabe, far from burying the Clinton Foundation investigation, had defended the FBI’s pursuit of it.
The bulk of the IG report documents McCabe’s mendacity: He dishonestly denied knowledge of the leak he had ordered, covered his tracks by deflecting blame, and — when he finally admitted his role — falsely suggested that Comey had been aware and approving of his actions. McCabe lies to his boss, he lies to his fellow agents, and he lies — under oath — in interviews conducted by the FBI’s internal investigators and the IG. Even when he changes his story, McCabe lies about the lies.
The IG’s referral triggers the very real possibility of an indictment. If that leads to a trial, a jury probably won’t find McCabe as sympathetic as his media boosters do. Exhibit A: According to the IG, right after the Journal published Barrett’s follow-up story incorporating the leaked information, McCabe called up the heads of the FBI’s New York and Washington field offices to ream them out over the leak that McCabe himself had orchestrated!
The release of the IG’s findings left President Trump unable to contain himself. He tweeted:
This is as foolish as it is unhinged. In his raging contempt for Comey, Trump misrepresents the report, which relates that McCabe deceived the former director, and that Comey’s convincingly corroborated, clear-stated denial of McCabe’s version of events helped the IG get to the bottom of the mess. Moreover, the IG’s account of McCabe’s chicanery is so daunting, the only defense he is likely to mount is that any prosecution of him is politically driven by a revenge-minded chief executive, not based on evidence weighed by non-partisan prosecutors. The president is playing right into his hands. As we’ve observed, again and again, it is maddening that a president so conspicuously pro-law-enforcement, by constantly bloviating about investigations, keeps making cases harder to prosecute.
Still, all that is secondary. Lost in the coverage of McCabe’s audacious fraudulence (complete with the smug, blame-everyone-but-me Washington Post op-ed in which he, of course, “take[s] full responsibility”) is the more significant matter of why this debacle happened.
Yes, McCabe shouldn’t have leaked, and it is even worse that he wouldn’t own up to it. But what was his leak about?
The tense conversation McCabe had on August 12, 2016, was with a Justice Department official the IG report identifies only as the “Principal Assistant Deputy Attorney General (PADAG).” That post was then held by Matthew Axelrod, top aide to Sally Yates, Obama’s deputy AG eventually fired by Trump for insubordination. Lisa Page told the Wall Street Journal that the PADAG was “very pissed off” because the Justice Department had learned that the FBI’s New York office was “openly pursuing the Clinton Foundation probe.”
Yup, the campaign stretch-run was upon us, and the oh-so-non-partisan Obama Justice Department was fretting that Mrs. Clinton could be toast if the public heard about yet another criminal investigation.
We have collusion all right: the executive branch’s law-enforcement and intelligence apparatus placed by the Obama administration in the service of the Clinton campaign
In point of fact, the FBI was not openly pursuing the Clinton Foundation. In congressional hearings, Director Comey had been asked if there was such an investigation, but — consistent with Justice Department policy — he refused to confirm or deny its existence. Indeed, the reason McCabe’s leak caused such consternation was that, by acknowledging the investigation, he violated this policy. But on July 12, McCabe pointedly told Axelrod that the FBI was not using overt measures that require Justice Department approvals; it was being discrete. That is what DOJ policy requires — not that law-enforcement activity be suspended during campaign season, but that investigators avoid open and notorious tactics that could prejudice a candidate in the minds of voters.
Discretion, however, was not good enough for the Obama Justice Department. As the Journal recounted, officials there considered the Clinton Foundation probe “dormant” and were angry that the Bureau was still “chasing” it.
Is McCabe the hero of the piece that he portrays himself to be? In a footnote, the IG report states that the “PADAG” concedes the accuracy of the Journal’s account of his conversation with McCabe, though he rejects the FBI “spin” creating a “totally unfair” impression of “political interference” — yes, perish the thought. Yet, however steely-spined he may have seemed to Axelrod, McCabe did issue a “stand down” order — at least according to agents down the chain of command, the Journal reported.
The Obama Justice Department “guidance” about the Clinton Foundation probe reminds us of their approach to the Clinton emails caper — call it a “matter” not an investigation; do not use the grand jury; instead of subpoenas, try saying “pretty please” to obtain evidence; do not ask the co-conspirators hard questions because they’re lawyers so that might infringe attorney–client privilege; let the witnesses sit in on each other’s interviews; let the suspects represent each other as lawyers; if someone lies, ignore it; if someone incriminates himself, give him immunity; have the attorney general meet with the main subject’s former-president husband on the tarmac a few days before dropping the whole thing; oh, and don’t forget to write up the exoneration statement months before key witnesses — including the main subject — are interviewed.
With the Clintons, though, enough is never enough. Obama Justice Department officials, figuring they were only a few days from succeeding in their quest to become Clinton Justice Department officials, decided to try to disappear the Clinton Foundation investigation, too.
After nearly two years of digging, there is still no proof of Trump-campaign collusion in Russian election-meddling. But we have collusion all right: the executive branch’s law-enforcement and intelligence apparatus placed by the Obama administration in the service of the Clinton campaign. To find that, you don’t need to dig. You just need to open your eyes.
Andrew C. McCarthy is a senior fellow at the National Review Institute and a contributing editor of National Review.