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DOJ Indictments Should Not Be Political Paybacks

Is anyone still putting the public interest ahead of politics and loyalty? Anyone?
September 4, 2019
DOJ Indictments Should Not Be Political Paybacks
WASHINGTON, DC - MAY 11: Acting FBI Director Andrew McCabe waits for the beginning of a hearing before the Senate Intelligence Committee with the other heads of the U.S. intelligence agencies in the Hart Senate Office Building on Capitol Hill May 11, 2017 in Washington, DC. The intelligence officials were questioned by the committee during the annual hearing about world wide threats to United States' security. (Photo by Alex Wong/Getty Images)

The sandstorm around the Department of Justice (DOJ) has largely subsided since former Special Counsel Robert Mueller delivered his report regarding Russian interference in the 2016 presidential election and possible obstruction of justice by Donald Trump. But two gales popped up last week. 

On August 29, DOJ’s inspector general (OIG) issued a report explaining why fired FBI director James Comey was not indicted for his handling of seven memos memorializing one-on-one conversations with Trump. According to the report, the OIG knew from Comey’s June 8, 2017, congressional testimony “that he had authorized a friend (who was also one of his personal attorneys) to provide the contents of [one memo]—which did not contain any classified information—to a reporter for the New York Times.” The report added: “We found no evidence that Comey or his attorneys released any of the classified information contained in any of the Memos to members of the media.” 

Instead, the OIG concluded that “Comey’s retention, handling, and dissemination of certain Memos violated Department and FBI policies, and his FBI Employment Agreement.” If Comey violated agency policy, perhaps it’s a good thing that he was fired. That’s what tends to happen to the rest of us when we don’t follow company rules, especially serious ones. 

It was also reported last week that criminal charges could be forthcoming against former FBI Deputy Director Andrew McCabe. In March 2018, former Attorney General Jeff Sessions fired McCabe because he confirmed to a Wall Street Journal reporter the existence of an FBI investigation of the Clinton Foundation. 

A separate OIG report concluded that, “in a conversation with then-Director Comey shortly after the WSJ article was published, McCabe lacked candor when he told Comey, or made statements that led Comey to believe, that McCabe had not authorized the disclosure and did not know who did. This conduct violated FBI Offense Code 2.5 (Lack of Candor – No Oath).” The OIG further found that McCabe “lacked candor” three more times in speaking to FBI agents about the WSJ incident. Those sessions were under oath. McCabe now faces possible indictment for lacking candor under oath to federal agents. For his part, McCabe has sued DOJ, claiming that his firing was politically-motivated retaliation that violated constitutional due process.

In wrapping one’s mind around the Comey/McCabe stories, it’s important to keep in mind how government lawyers make indictment decisions. Prosecutors have lots of discretion. They can’t go after every wrongdoer—either because they aren’t convinced they can prove a case beyond a reasonable doubt or because they simply decide to put their limited resources elsewhere. For McCabe, the questions for prosecutors are, first, whether they can prove the intent element required to convict him for knowingly and willfully making false statements to FBI agents under a statute like 18 U.S.C. § 1001. The second is whether, even if the proof is there, it’s the right thing to do on behalf of the United States.

We’ve heard about the pesky intent element of proving a criminal case beyond a reasonable doubt before. The same showing is required for obstruction of justice. Even setting aside the DOJ policy against prosecuting a sitting president, some people believe that Trump’s constitutionally based authority to fire DOJ employees—including former Special Counsel Robert Mueller—would have made an obstruction case against Trump too hard to prove at trial. DOJ thus decided not to prosecute Trump, notwithstanding Volume II of the report detailing very troubling evidence bearing on that crime.

Trump was given the benefit of the doubt here—not only because of his unicorn-like status under Article II of the Constitution, but also because Mueller thought it unfair to charge him if he couldn’t defend himself in court by virtue of the DOJ policy against prosecuting a president. Mueller punted to Congress, and Congress—so far—has declined to exercise its impeachment prerogative. 

Bottom line: Trump got a pass. 

This is not to mention DOJ’s prosecution of Trump’s former lawyer Michael Cohen for campaign finance-related crimes. In the charging document, the U.S. Attorney’s Office for the Southern District of New York identified Trump as having participated in conduct that landed Cohen in jail. So it looks like Trump got two passes. 

That may be just for starters, given the umpteen known criminal investigations of all-things-Trump that have been initiated or remain ongoing. With William Barr at the helm of DOJ, we can reasonably expect that, even if the evidence is there, any federal investigations will go nowhere in terms of presidential accountability. So far, state attorneys general haven’t made a move against Trump, either. All told, then, we might safely add a few more passes in Trump’s column when it comes to paying the price for wrongdoing in office.

Of course, McCabe and Comey already paid the price of federal employment. Trump is still in office, and could get four more years come November 2020. What’s more, McCabe’s alleged lying was about an investigation into Trump’s nemesis, Hillary Clinton, in an effort to shore up his reputation for political independence. Although hardly dispositive, a DOJ might consider these factors in its calculus of whether McCabe should also face jail time. Not everyone who lacks candor to federal agents is prosecuted. 

Perhaps most importantly, recall that Trump heralded McCabe’s firing on Twitter, calling it “a great day for the hard working men and women of the FBI – A great day for Democracy,” and chided that “[s]anctimonious James Comey was his boss and made McCabe look like a choirboy. He knew all about the lies and corruption going on at the highest levels of the FBI!”

Trump is the boss of everyone at DOJ—every prosecutor, every FBI agent, and every person at main DOJ office who signs off on the many prosecutorial decisions made across the country each week. If an indictment decision by DOJ were to ever have anything to do with political payback on the boss’s behalf, we are in trouble. Politicizing the criminal justice system is scary business for everyone. 

Ironically, the OIG noted that McCabe was authorized to disclose the existence of the Clinton Foundation investigation publicly “if such a disclosure fell within the ‘public interest’ exception in applicable FBI and DOJ policies generally prohibiting such a disclosure of an ongoing investigation.” It concluded “that McCabe’s decision to confirm the existence of the [Clinton Foundation] Investigation through an anonymously sourced quote in the WSJ … served only to advance McCabe’s personal interests and not the public interest, as required by the FBI.”

Indeed, people in the highest echelons of government should not make decisions based on personal interest. It can thus fall on career DOJ officials to ultimately uphold the rule of law and place the public interest above politics and ideological loyalty. The question of the day is: Who at DOJ still abides by that mantra? Let’s not forget that Trump is the one in charge.

Kimberly Wehle

Kimberly Wehle is a contributor to The Bulwark. She served as an assistant U.S. attorney and an associate independent counsel in the Whitewater investigation. She is currently a professor at the University of Baltimore School of Law. An ABC News legal contributor, she is the author of three books with HarperCollins: How to Read the Constitution—and Why, What You Need to Know About Voting—and Why, and, most recently, How to Think Like a Lawyer and Why—A Common-Sense Guide to Everyday Dilemmas. Her new book, Pardon Power: How the Pardon System Works—and Why, is forthcoming in September 2024 from Woodhall Press. @kimwehle.