Hillary Clinton checked every box for a violation of the Espionage Act. So much so that, in giving her a pass, the FBI figured it better couch her conduct as “extremely careless,” rather than “grossly negligent.” The latter description was stricken from an earlier draft of then-director James Comey’s remarks because it is, verbatim, the mental state the statute requires for a felony conviction. It wouldn’t do to have an “exoneration” statement read like a felony indictment.
In point of fact, the careless/negligent semantic game was a sideshow. Mrs. Clinton’s unlawful storage and transmission of classified information had been patently willful. In contemptuous violation of government standards, which she was bound not only to honor but to enforce as secretary of state, she systematically conducted her government business by private email, via a laughably unsecure homebrew server set-up. Her Obama administration allies stress that it was not her purpose to harm national security, but that was beside the point. The crime was mishandling classified information, and she committed it. And even if motive had mattered (it didn’t), her purpose was to conceal the interplay between her State Department and the Clinton Foundation, and to avoid generating a paper trail as she prepared to run for president. No, that’s not as bad as trying to do national-security harm, but it’s condemnable all the same.
While Clinton’s mishandling of classified information got all the attention, it was just the tip of the felony iceberg. Thousands of the 33,000 emails she withheld and undertook to “bleach bit” into oblivion related to State Department business. It is a felony to misappropriate even a single government record. The destruction of the emails, moreover, occurred after a House Committee investigating the Benghazi massacre issued subpoenas and preservation directives to Clinton’s State Department and Clinton herself. If Andrew Weissmann and the rest of the Mueller probe pit-bulls had half as solid an obstruction case against Donald Trump, the president would by now have been impeached, removed, and indicted.
And that dichotomy is the point, isn’t it?
In the Obama Justice Department — as extended by the Mueller investigation, staffed by Obama Justice Department officials and other Clinton-friendly Democrats — justice was dispensed with a partisan eye. If you were Hillary Clinton, you skated. If you were Donald Trump, they were determined to dig until they found something — and, even when they failed to make a case, the digging never stopped . . . it just shifted to Capitol Hill.
No one knows the skewed lay of the land better than Andrew McCabe.
The FBI’s former deputy director is in the Justice Department’s crosshairs. His lawyers are reportedly pleading with top officials not to indict him for lying to FBI agents who were probing a leak of investigative information, orchestrated by none other than McCabe.
McCabe is feeling the heat because the evidence that he made false statements is daunting. So daunting, in fact, that even he concedes he did not tell the truth to investigators. Listen carefully to what he says about the case — there being no shortage of public commentary on it from the newly minted CNN analyst. He never “deliberately misled anyone,” he insists. Sure, he grudgingly admits, some of his statements “were not fully accurate,” or perhaps were “misunderstood” by his interrogators. But “at worst,” you see, “I was not clear in my responses, and because of what was going on around me may well have been confused and distracted.”
Seems to me that General Michael Flynn “may well have been confused and distracted,” too. After all, it was on Flynn’s insanely busy first full day on the job as the new president’s national-security adviser that McCabe and Comey dispatched two agents — Peter Strzok and Joe Pientka — to brace him for an interview.
As our Rich Lowry recounts, Comey later bragged to an audience of like-minded anti-Trumpers at the 92nd Street Y that he knew this was a breach of protocol. Because seeking to interview a member of the president’s staff in a criminal investigation is a big deal, the Bureau is supposed to go through the attorney general, who alerts the White House counsel. That ensures that the administration is aware of the situation, and that the suspected staffer is advised of the reason for the interview and given an opportunity to consult with a lawyer.
Of course, if protocol had been followed, McCabe would not have been able to have Flynn grilled without preparation and without counsel. That put Flynn in a very different posture from Hillary Clinton.
She got every courtesy. The FBI not only scheduled her interview well in advance; before she showed up, before they asked her a single question, they had already finished drafting Comey’s statement exonerating her. Not just that. Clinton was permitted to bring along — among her phalanx of lawyers — her State Department aides Cheryl Mills and Heather Samuelson, key witnesses who had gotten immunity from prosecution. (In a real investigation, they’d have been considered subjects, not witnesses.) Allowing witnesses to sit in as lawyers was not just a violation of Justice Department practice (to say nothing of common sense). Federal criminal law prohibits former officials from lobbying the government on behalf of another person in a matter in which the former official was heavily involved while working for the government.
Recall that when he decided against an indictment of Clinton, Comey famously pronounced that “no reasonable prosecutor” would charge her. Even though Clinton’s conduct technically transgressed the law, the then-director rationalized that he could find no prior Espionage Act prosecution for gross negligence on facts analogous to Clinton’s case.
Where exactly would we expect find analogous facts? Not much precedent about secretaries of state sedulously setting up non-government communications systems for years of correspondence involving thousands of classified communications. But let’s put this historical anomaly aside. Let’s even ignore that military officials have been prosecuted for less-egregious classified-information violations. Here’s the point: In giving Clinton a pass, Comey explained that “responsible” prosecutorial decisions “consider the context of a person’s actions, and how similar situations have been handled in the past.”
Okay . . . then how is it that General Flynn gets investigated and charged?
Flynn, as a member of Trump’s transition team and incoming national-security adviser, had been consulting with the Russian ambassador, among other foreign counterparts. Context? There was nothing illegal or illegitimate about such communications. And even if it had been appropriate for the FBI and the Justice Department to inquire into the foreign policy of the incoming president elected by the American people, the Bureau did not need to interview Flynn. They had recordings of the conversations. What reason could there have been to question Flynn about them — without playing the recordings for him — except to lay the groundwork for a false-statements prosecution?
Moreover, how have similar situations been handled in the past? In investigating Flynn, the Obama Justice Department and the FBI theorized that he might have violated the Logan Act, a dubious law that purports to criminalize foreign policy freelancing by private citizens. Despite being on the books for over two centuries, the Logan Act has never resulted in a successful prosecution. Not once. In fact, it has not even been used to indict anyone in the last 170 years. Indeed, but for its desuetude, the Logan Act would certainly have been held unconstitutional; because the Justice Department never invokes it, no one has had the opportunity to challenge it. Yet, the Logan Act was used to justify investigating Flynn — a transition official whose very job entailed consultation with foreign officials.
As we noted a few days ago, the FBI and Mueller’s investigators prosecuted George Papadopoulos for lying about the date of a meeting. Though the lie was inconsequential to the probe, they made the then-28-year-old eat a felony charge. And while they could easily have had his lawyer surrender him for processing on the charge and quick release on bail, they instead choreographed an utterly unnecessary nighttime arrest that forced him to spend a night in jail.
Suffice it to say that Paul Combetta did not get the Papadopoulos brass-knuckles treatment.
Combetta was not prosecuted even though he brazenly lied to the FBI about the circumstances of his destruction of Clinton’s private emails. He was the key witness who had been in communication with Clinton confederates before and after his bleach-bit blitz through Clinton’s emails. In a normal case, prosecutors would charge him with obstruction and false statements to pressure him into cooperating. In the Clinton caper, though, he was given immunity . . . and duly clammed up.
No false-statements charges against Combetta. No false-statements charges against Cheryl Mills and Huma Abedin, intimate Clinton aides who claimed not to know about Clinton’s private server while they worked for her at the State Department — even though emails show them involved in discussions about the server.
In the Clinton investigation, if you were a lawyer, such as Mills and Samuelson, the Obama Justice Department said “pretty please” and gave you immunity — rather than a subpoena — to induce you to surrender private laptop computers containing classified Clinton emails. And then the Justice Department, in consultation with the Clinton camp’s lawyers, imposed restrictions on what the FBI could look at and what its agents could ask. After all, we wouldn’t want to imperil the attorney-client privilege, right?
Well, at least as long as you were not a lawyer in the Trump-Russia investigation. If you were, as was Melissa Laurenza, an attorney who worked for Paul Manafort and Rick Gates, prosecutors and the FBI compelled you to testify about client communications. If you were Trump lawyer Michael Cohen, the FBI executed search warrants at your home and office, and you were prosecuted. So was Alex van der Zwaan, an attorney who worked with Manafort and Gates in representing Ukrainian interests. He was induced to plead guilty to a false-statements charge in the Mueller probe.
And needless to say, if you were Manafort, there was no act-of-production immunity for you. And no one asked “pretty please” for you to turn over evidence. Under the Mueller team’s direction, the FBI got search warrants allowing them to break into Manafort’s home before dawn and at gunpoint to seize documents. Of course, this seems like kid-gloves treatment compared to what was done to Manafort’s friend and fellow Trump adviser, Roger Stone. The S.W.A.T.-style raid on Stone’s home included helicopter surveillance, an amphibious team (apparently to guard against escape by sea), and so many FBI vehicles that the CNN crew that just happened to be on scene almost couldn’t find a parking space! Was that show of force really necessary for a 66-year-old man charged with nonviolent process crimes whom the court released on bail a few hours later?
Mueller spent nearly two years trying to make an obstruction case against Trump for endeavoring to influence the Russia investigation. Congressional Democrats are still trying to breathe impeachment life into this effort. By contrast, the media-Democrat complex was unperturbed when Obama publicly announced in April 2016 that he did not think Clinton should be indicted. Far from accusing the 44th president of endeavoring to influence an investigation, the prosecutors and the press amplified Obama’s narrative that Clinton had not intended to harm the country — and dutifully looked the other way when the FBI airbrushed Obama’s name out of Comey’s Clinton exoneration speech (the president having knowingly communicated with Clinton through her unsecure server when she emailed him from a hostile foreign country).
The goal was to make Clinton’s crimes disappear, while suspicions about Trump were blazoned on the public consciousness. Even though the Trump-Russia probe was a counterintelligence investigation, then-director Comey went public about it in March 2017 congressional testimony.
That was stunning. It is not enough to say that the Justice Department and the FBI customarily neither confirm nor deny the existence of any investigation, no matter how comparatively trivial. Counterintelligence investigations are classified. They are never spoken of. Yet, Comey both revealed the investigation and identified the Trump campaign as a subject, suspected of “coordinating” in Russia’s cyberespionage. For good measure, he gratuitously added that an assessment would be made about whether crimes had been committed. As any sensible person would have foreseen, the FBI director’s proclamation was taken by the media and the public as a signal that President Trump was the prime suspect in one of the most heinous crimes in American history.
To say the least, a different tune was sung in the Clinton emails probe. There, Comey acceded to the instructions of Obama’s attorney general, Loretta Lynch, that he not publicly speak of it as an investigation. Just call it “a matter,” he was told. Funny thing about that: it sounded exactly like what the Clinton campaign was saying at the time.
I don’t pretend to be a McCabe fan. Nevertheless, I have sympathy for him. The 2016 election will define his career, but it does not fairly reflect his long years of service defending the rule of law and American national security. If we could consider his case in a vacuum, and I had my druthers, I would not want to charge him. He was fired for cause in disgrace and is slated to lose at least some of his pension. These are significant penalties. I’d like to be able to say, “Enough is enough, no need to pile on with an indictment.”
But there’s more to it than that. A lot more.
For one thing, McCabe is suing the government for wrongful termination, arguing that he was fired due to a political vendetta carried on by President Trump. I certainly agree that the president should not have commented on McCabe’s case or status. As I’ve repeatedly argued (see, e.g., here, here, and here), the president’s often-unhinged commentary makes investigations and prosecutions much more difficult to execute. It has already resulted in slap-on-the-wrist treatment for deserter Bowe Bergdahl, who should have received a stiff sentence.
That said, though, it is an audacious strategy on McCabe’s part to (a) ask the Justice Department to exercise clemency by declining to charge an eminently prosecutable false-statements case against him, while (b) simultaneously hauling the Justice Department into court on an accusation of bad faith in a case in which McCabe leaked and then provided explanations that weren’t true. If I were the attorney general, my inclination would be to say, “If he’s going to make us go to war, let’s go to war on offense — indict him.”
More significantly, we are now living in a law-enforcement world of McCabe’s making.
Again, in a better world, I’d prefer to take account of the considerable positive side of McCabe’s ledger and what he’s already suffered, especially if he exhibited some contrition. That is, I’d ordinarily be open to declining prosecution. But then, how about the positive side of General Flynn’s ledger? And why, if it would be overkill to charge McCabe was it not overkill to charge Papadopoulos? Why do Clinton, Mills, Abedin, and Combetta get a pass in a criminal investigation triggered by actual crimes, but Flynn, Papadopoulos, van der Zwaan, and Stone get hammered in an investigation predicated by no crime — just a fever dream of Trump-Russia cyberespionage conspiracy?
FBI and Justice Department officials keep telling us they grasp that there must be one standard of justice applicable to everyone, not a two-tiered system. So, here’s the question: If Andrew McCabe’s name were Michael Flynn, how much mercy could he expect from, say, Andrew Weissmann?