Timing is everything in life. House speaker Paul Ryan has decided to back Representative Trey Gowdy’s (foolish) suggestion that there was nothing irregular about the FBI’s use of an informant to investigate the Trump campaign. Ironically, Andrew McCabe, the former deputy director who was deeply involved in that investigation, picked the same time to make it known that he will not testify before Congress unless he is granted immunity from prosecution.
The Senate Judiciary Committee, to which McCabe’s lawyer made the request, should tell him “No thanks.” McCabe should be reminded that he is free to assert the Fifth Amendment privilege against self-incrimination if he believes truthful answers would put him in jeopardy, but there should be no immunity.
Besides the Russia probe, McCabe oversaw the Clinton-emails investigation after being appointed deputy director in February 2016. As the bureau’s No. 2 official, he had very broad supervisory responsibility over investigations nationally and globally. But his oversight of the Clinton case was much closer than usual for a deputy director, because the FBI took the highly unusual step of running the investigation out of headquarters. The FBI generally avoids doing that for a variety of prudent reasons, not least that its field offices across the country are removed from Washington’s intense political environment.
Of course, that is just one of countless ways in which the Clinton investigation was given highly unusual treatment.
As we discussed back in April, McCabe has been referred by the inspector general to the Justice Department and FBI for consideration of whether to prosecute him for making false statements to investigators. The false statements occurred during a probe of McCabe’s leaking of sensitive investigative information to the media. Inspector General Michael Horowitz’s 35-page report recounts that McCabe gave misleading answers on four occasions when questioned about the leak; falsely claimed that his boss, then-director James Comey, knew about and approved McCabe’s leak; and, to give himself cover, shamelessly chewed out the heads of the New York and Washington field offices over the leak that McCabe himself had orchestrated.
McCabe’s lawyer, Michael Bromwich, now maintains that, because of the criminal referral, McCabe needs immunity if he is to testify before the Senate Judiciary Committee about the Clinton-emails case. This is a stark change of position for McCabe.
Shortly before the publication of the IG’s report on his alleged false statements about his leak, McCabe penned an op-ed in the Washington Post. In it, he flatly denied the accusation of “lack of candor” — the label the FBI gives to agent misconduct that involves violating the duty of honesty, particularly in dealings with the bureau. McCabe asserted:
I did not knowingly mislead or lie to investigators. When asked about contacts with a reporter that were fully within my power to authorize as deputy director, and amid the chaos that surrounded me, I answered questions as completely and accurately as I could. And when I realized that some of my answers were not fully accurate or may have been misunderstood, I took the initiative to correct them. At worst, I was not clear in my responses, and because of what was going on around me may well have been confused and distracted.
If McCabe was being candid with the Post’s readers, then it is hard to understand how he can now represent that truthful answers to the Judiciary Committee’s questions could incriminate him. More likely, McCabe is trying to make himself non-prosecutable.
Though long accepted, congressional immunity is a constitutionally questionable concept.
In 1970, Congress enacted the statute that empowers lawmakers to grant immunity, Section 6005 of the federal penal code. Essentially, if a two-thirds majority of the investigating committee approves, immunity is granted. (The Justice Department must get notice and can delay matters, but it cannot stop the immunity grant if the committee is determined to proceed.)
Though long accepted, congressional immunity is a constitutionally questionable concept. Criminal investigation and prosecution are executive functions, and they include decisions about whether to charge or to forfeit the power to charge in exchange for information that furthers other investigations and prosecutions. When Congress exercises this power, it undermines the Justice Department’s ability to prosecute.
It is true that, on the surface, the statute provides only “use immunity.” Technically, this does not shield the witness from prosecution; it only prevents the immunized testimony from being used against the witness — either directly (being presented against him at trial) or indirectly (as leads to locate evidence that can be used to prosecute him). In practical effect, however, use immunity can easily become transactional or even blanket immunity. It is often difficult, if not impossible, to prove that evidence purportedly unrelated to the immunized testimony was not traceable to it in some way. Consequently, if the Justice Department tries to prosecute him, the immunized witness will argue that the case is based on the immunized testimony. It is easier for a court to throw out such a case than try to sort out what is tainted and what is not.
The inspector general’s report laid out what appears to be a strong false-statements case against McCabe. And that may be just the beginning: We are awaiting what is said to be the imminent IG report on the Clinton-emails investigation, and the IG is also investigating the FBI’s conduct in the Trump–Russia investigation. We do not know if the IG will find any potentially criminal conduct in these investigations. Still, we can safely assume that McCabe hopes the Senate Judiciary Committee will grant him immunity so he can later contend that any effort to prosecute him is based on immunized testimony.
Once McCabe realizes the Judiciary Committee will not interfere with the Justice Department’s ability to prosecute him, he is apt to become a much more forthcoming witness.
Prosecutors do not like to grant immunity. It was liberally doled out in the Clinton-emails investigation that McCabe ran, but that was an aberration — a reflection of the fact that there was no intention of charging Mrs. Clinton or anyone else with a crime.
A more normal and effective way of proceeding is illustrated by Special Counsel Mueller’s investigation: If the prosecutor has a viable false-statements case against a witness, he makes the witness understand that he is prepared to indict the witness. The witness quickly realizes that his best option is to plead guilty and cooperate (as several witnesses have in Mueller’s probe). Once this is done, if the witness proves to be dishonest, the cooperation agreement is torn up and the prosecutor can bring more charges and push for a more severe sentence. The guilty-plea arrangement, much more effectively than an immunity grant, provides the witness with a powerful incentive to cooperate fully.
The Judiciary Committee should tell McCabe that if what he wrote in his Washington Post op-ed is true, then he need not worry about incriminating himself by answering the committee’s questions. There is no reason to give him immunity at this point. Let McCabe come in and assert the Fifth Amendment privilege if that is what he chooses to do. Meanwhile, the committee should wait to see what the Justice Department does with the IG’s false-statements referral, and what the IG says in the Clinton-emails report.
Once McCabe realizes the Judiciary Committee will not give him immunity or otherwise interfere with the Justice Department’s ability to prosecute him, he is apt to become a much more forthcoming witness.