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Thomas Gallatin / February 17, 2020

Why Did the FBI Drop the McCabe Case?

As is often the case, there may be more to this decision than meets the eye.

The Justice Department announced Friday that it was declining to prosecute former FBI Deputy Director Andrew McCabe for lying to inspector general investigators over his unauthorized leak to the press regarding the FBI’s Hillary Clinton email investigation back in 2016. In light of the DOJ’s aggressive prosecution and subsequent conviction of both former National Security Advisor Michael Flynn and former Trump campaign member George Papadopoulos for lying, the decision wafts the pungent odor of a politically based double standard.

As National Review’s Andrew McCarthy observes, “The FBI’s former deputy director, though he undeniably misled investigators, remains a commentator at CNN. In the meantime, Papadopoulos is a felon convicted and briefly imprisoned for misleading investigators, while Flynn and Stone are awaiting sentencing on their false-statements charges. That covers both tiers of our justice system.”

So, why did the DOJ make this decision? Well, it appears to have boiled down to a question of winnability. As unsatisfying as that answer may be, the most unsatisfying answer of all may be that we may never fully know why. That said, there are some indications as to why the DOJ made this decision, and it wasn’t necessarily because of some deep-state cover-up.

First, as former GOP Rep. Trey Gowdy noted, this decision was made regarding a narrow specific incident — McCabe’s lying about a press leak. Furthermore, the DOJ’s announcement does not signal that McCabe is completely out of the woods — not by a long shot. It may be that McCabe factors into prosecutor John Durham’s ongoing criminal investigation into the origins of the FBI’s Trump-Russia investigation. That investigation could reveal much more serious criminal actions than lying about an unauthorized press leak.

A second reason that may have factored into this decision was the DOJ’s recognition that winning a conviction against McCabe was far from a forgone conclusion. The likelihood of getting a conviction with a Washington jury pool in the current highly partisan environment is slim. And adding to this is Trump’s careless penchant for publicly calling for the prosecution of those he believes wronged him. Even if his assessment is accurate, it only serves to bolster any claims from McCabe’s defense that the case is a politically motivated prosecution. As McCarthy states, “If you want people held accountable for their crimes, you have to ensure their fundamental right to due process. When the government poisons the well, the bad guys reap the benefits.”

On a positive note, Attorney General William Barr has installed an outside prosecutor to review Flynn’s case. This is part of a larger effort by Barr; The New York Times reports as he recently “installed a handful of outside prosecutors to broadly review the handling of other politically sensitive national-security cases.” Like a cat tasked with clearing the barn of rats, Barr has set about his work with the utmost seriousness. Trump needs to trust him, let him do his work, and avoid throwing out ammunition for Democrats to use against him.

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