
DOJ Indictments Should Not Be Political Paybacks
Is anyone still putting the public interest ahead of politics and loyalty? Anyone?

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, DOJās 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 Comeyās June 8, 2017, congressional testimony āthat he had authorized a friend (who was also one of his personal attorneys) to provide the contents of [one memo]āwhich did not contain any classified informationāto a reporter for the New York Times.ā The report added: āWe 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.ā
Instead, the OIG concluded that āComeyās retention, handling, and dissemination of certain Memos violated Department and FBI policies, and his FBI Employment Agreement.ā If Comey violated agency policy, perhaps itās a good thing that he was fired. Thatās what tends to happen to the rest of us when we donāt 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, āin 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 ā No Oath).ā The OIG further found that McCabe ālacked candorā 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 oneās mind around the Comey/McCabe stories, itās important to keep in mind how government lawyers make indictment decisions. Prosecutors have lots of discretion. They canāt go after every wrongdoerāeither because they arenāt 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, itās the right thing to do on behalf of the United States.
Weāve 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 Trumpās constitutionally based authority to fire DOJ employeesāincluding former Special Counsel Robert Muellerāwould 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 hereānot 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 couldnāt defend himself in court by virtue of the DOJ policy against prosecuting a president. Mueller punted to Congress, and Congressāso farāhas declined to exercise its impeachment prerogative.
Bottom line: Trump got a pass.
This is not to mention DOJās prosecution of Trumpās former lawyer Michael Cohen for campaign finance-related crimes. In the charging document, the U.S. Attorneyās 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 havenāt made a move against Trump, either. All told, then, we might safely add a few more passes in Trumpās 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. Whatās more, McCabeās alleged lying was about an investigation into Trumpās 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 McCabeās firing on Twitter, calling it āa great day for the hard working men and women of the FBI ā A great day for Democracy,ā and chided that ā[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!ā
Trump is the boss of everyone at DOJāevery 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 bossās 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 āif such a disclosure fell within the āpublic interestā exception in applicable FBI and DOJ policies generally prohibiting such a disclosure of an ongoing investigation.ā It concluded āthat McCabeās decision to confirm the existence of the [Clinton Foundation] Investigation through an anonymously sourced quote in the WSJ ... served only to advance McCabeās personal interests and not the public interest, as required by the FBI.ā
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? Letās not forget that Trump is the one in charge.