Thread by @McAdooGordon

McCabe:

The govt’s decision today not to charge him only applies to conduct described in the IG’s referral based on its April 13, 2018 report. He can still be investigated or charged for any other conduct (that isn’t barred by the statute of limitations.) /1

The IG’s referral was for alleged lies to FBI about his role in leaking classified info to the press. It was great that IG referred it, because it needed to be evaluated for charging (which the IG doesn’t do), but there was a low probability of it actually being charged. /2

The low probability for charging it stems from multiple factual/legal problems with the case. As a defense lawyer, I always thought this case was defensible. Others against him may not be. But the reality is McCabe is likely never to be criminally charged. We’ll see./3

There were basically two potential areas of conduct for charging here. One is mishandling classified info, the other is lying to FBI about it. The first has factual problems at a minimum, the second has both factual and legal problems./4

From what’s publicly known about the mishandling issue, there was likely going to be a problem proving beyond a reasonable doubt that the disclosures to the press were not authorized or that McCabe knew they weren’t./5

“Leaks” of classified information are almost never authorized of course (although in theory that could happen). It’s of course unclear here whether any classified information was leaked, whether authorized or not, as the govt hasn’t said the leaked info was of that nature. /6

A prosecution for leaking classified info is relatively easy to make if you can prove knowledge that the info was classified & intentional dissemination of it. Petraeus’ case is a good example. If the info at issue here had been classified, he likely would have been charged. /7

Since they’re not charging him, it’s highly likely none of the info was classified, even tho there’s been no official announcement as such. /8

Non-classified, but law enforcement sensitive or other official-only info is often authorized for disclosure to the press even if it ordinarily isn’t supposed to be released outside the agency. But, authorized or not, such disclosures, while perhaps “illegal,” aren’t criminal. /9

Govt employees can be (& sometimes are) disciplined for improper disclosures of such info, but they can’t be prosecuted for it. Even if in theory some of the info released was later deemed classified, there’s no way to successfully prosecute because McCabe wouldn’t know that./10

And, McCabe also had the defense that he thought the disclosures were necessary or authorized & even if he was mistaken about that, it would still have been a valid defense if he reasonably thought so, even if the info was retroactively classified. /11

So no matter how you slice it, there’s just no criminal case there on a theory of disclosing classified information because the facts just don’t support it. /12

A false statements case (lying to FBI) was potentially easier, but as I’ve said, also always extremely problematic. /13

For one thing, not literally every statement to the FBI can be used to charge a criminal “false statement. “ The statement has to be in the course of an investigation or for purposes of an official government proceeding. /14

For example, if an FBI secretary lies to her boss about whether they got a phone call from the Director, that’s not a criminal false statement. She might get punished, but not prosecuted. /15

But that doesn’t mean an FBI employee can’t make a criminal false statement, it just means that, like for everyone else, the statement has to be made in an investigation (for shorthand I’m going to just say that from now on)./16

In addition, govt employees being investigated by the govt have a right to know what kind of penalty the investigation will possibly expose them to - criminal or only disciplinary, because like everyone else, they have a right to be silent if it’s a criminal investigation./17

The govt can force its employees to submit to investigative questioning about their duties, but it cannot require them to give up their right to be silent if the case might be criminal. So the courts have created rules to protect employees’ 5th Amendment rights. /18

Boiled down, the rules are: the govt can “compel” answers if it foregoes a criminal prosecution. It can punish an employee for refusing to talk in that situation. It cannot punish the employee for being silent however, if a criminal case is still a possibility. /19

Most agencies address this issue by providing the employees with a warning - similar to Miranda warnings - explaining the situation & their rights to the employee before any questioning. Most times they get the advice right, sometimes they don’t. /20

As an aside, Miranda almost never applies in cases of govt employees being investigated because for Miranda to apply : 2 things have to be true: (1) the person must be in custody & (2) be being questioned. In investigations of govt employees, the person is rarely in custody./21

I wrote an article more fully explaining these ideas last year in reference to Gen. Mike Flynn’s case because the same issues are at play in his FBI interview. You can read that here:

thefederalist.com/2018/12/19/the…

/22

Where agencies get into a lot of trouble is when they question employees about their duties & don’t give any explanation or warnings about the consequences of answering. It appears that is what happened in McCabe’s case. /23

In that scenario, it is highly likely that the statements will not be admissible against the employee in a criminal case. The courts hold the govt responsible for showing a knowing & voluntary waiver of the right to be silent & the govt simply can’t do so in this scenario. /24

Good luck getting a conviction for making a false statement when the statement isn’t admissible at the trial. /25

Another factor in this analysis is whether the employee had access to the advice of counsel or not. McCabe had counsel at the time of the questioning. He initially refused to answer questions w/out his lawyer present. He was told the questions related to something else. /26

He was apparently persuaded that the questions related to the business of the Bureau rather than the ongoing investigation into him, so he agreed to answer the questions. Under these circumstances, a judge will almost certainly exclude the statements. /27

The combination of these factors (& likely others we don’t know) makes the case difficult for prosecutors to get a conviction on & therefore also a plea. Of course that also depends in part on whether the person has a skilled lawyer to tell the govt they have a shitty case. /28

That McCabe had. The 2 lawyers in the declination letter are Bromwich & Schertler. I haven’t been impressed w/Bromwich, who is a “name” but seems to have TDS. I know Schertler. He is a bone fide, for real criminal defense attorney & a skilled trial lawyer (& former prosecutor./29

I’m not shocked he refused to plead McCabe on these facts. He would have-as was reported in the press/gone to meet w/supervisors at DOJ & (nicely) told them this isn’t an indictable case for these reasons: xyz, etc. When you’re right about that, you get the declination letter./30

As I said, tho, this declination only relates to the one criminal referral from the IG in 2018, not every potential case the DOJ might potentially have against him. That’s why the letter reads the way it does.

int.nyt.com/data/documenth…

/31

People wonder if this means McCabe is co-operating, but the answer is almost certainly no. If the declination was conditioned on co-operation there would be a formal agreement- another document -on that. This reads like a straight declination./32

The govt can decline this & still investigate something else. There’s no rule against that & they don’t have to tell him if they are. Defense lawyers prefer to have “global” resolutions but a partial victory is a good; you can still fight the rest & maybe it won’t show up. /33

So for example, if Durham is looking at McCabe as a potential target, he can still do that & maybe this makes it easier for Schertler to agree to have McCabe talk to Durham about that case (as a co-operator or otherwise) because there are now fewer pieces on the board./34

A cold reality is that criminal charges against the Spygate participants will be difficult under the law- tho not impossible perhaps. It could be this criminal case was getting in the way of Durham interviewing McCabe because Schertler would have asserted the 5th Amendment. /35

With this case declined, there might be no other basis on which McCabe can be prosecuted & that would eliminate his right to be silent & the govt could force him to testify against the other Spygate crew by subpoenaing him. /36

I’m planning to write a piece about what criminal charges could potentially be brought against the Spygate crew. There are some. I don’t wanna get people’s hopes up too much because the available charges are few in number & not easy to prove. But it’s not zero options either. /37

One thing I do want to say about McCabe’s response today is I found it gross that he complained the DOJ took two years to resolve his case. FBI does that & more to people every day - to people who are INNOCENT - not just where there’s no enough proof or the law is difficult. /38

Because McCabe’s situation is that he in fact lied to FBI & leaked law enforcement info, it’s just that he did so in circumstances that make those not violations of the criminal law and/or not provable crimes. /39

As an agent & supervisor at FBI he would have been involved with or known of hundreds (or more) cases where investigations -imposing just as much hardship on the targets & their families as he endured - took 2 years or more & he wouldn’t have cared less. He’s a hypocrite. /40

A factor that may/may not have played a part in the declination is the fact that McCabe tried to “correct” his lie. That is irrelevant legally for a false statements case. A recantation can be a complete defense to perjury - a lie in court - but it isn’t for a false statement./41

However, false statements cases are often hard for prosecutors to get convictions on. Juries don’t want to convict on them for mistakes or slips of the tongue or statements more like opinions, etc. They can identify w/someone who maybe just misspoke in haste or under stress. /42

Throw in the guy tried to correct the statement w/in a reasonable time & tell the jury he initially demanded his lawyer be present & they might not convict. Prosecutors don’t like to lose. They will decline if they think they might. (They are supposed to if they know it.) /43

Ultimately where it leaves it, is the IG was right to refer the case for evaluation by criminal prosecutors, but the evidence just isn’t there. McCabe was still fired from FBI, which is never going to change. He’s disgraced & no doubt has paid handsomely for counsel. /44

He has lost 100% of his retirement & is having to sue to get it back, which may or may not be successful. He still faces Durham’s investigation. The outcome for Andy McCabe is still yet to be written./45

I’m sorry this thread has been so stop & start in terms of time. We were spending time with relatives today so I didn’t have an uninterrupted chunk of time to write./46

So some folks have asked why McCabe isn’t being prosecuted for various lies he told “under oath.” The IG’s description of these instances leads me to believe these were during “compelled” interviews, meaning he’d been told he had to answer or be disciplined. /47

In that situation, the statements could NOT be used against him in criminal court if a case were brought against him for what he was being questioned about, but they COULD be used to prosecute him for lies in the interview itself. /48

However, “lack of candor” for discipline purposes is a much lower bar than the proof needed for a criminal false statement, which must be material, intentional, not an opinion, unequivocally false, not the result of mistake, etc. & all that proved beyond a reasonable doubt. /49

As I said earlier, criminal false statements ASR’s can be hard for the govt to win / juries sometimes really don’t like them, especially if they are “technically” or “literally” false, but in context maybe not so clearly false. /50

Another factor is some things that are “lack of candor” in the employment sense are not legally false statements.This is usually true of omissions. An omission can easily be seen as lack of candor in the workplace setting-leaving information out renders a false overall effect./51

But it can be quite difficult to make a false statements case on an omission. The criminal law pretty much only applies to omissions if the person had an affirmative duty to provide the info in response to a specific inquiry. The law on this for compelled interviews is sparse./52

For a jury to convict on a criminal false statement, the falsity has to be really clear. People don’t want to convict on this felony on an ambiguous or “half right/half wrong” answer. It seems too Orwellian. They think: that could be me, in a way they don’t in other cases. /53

And in the employment context, there is a sense that the employer (here the govt) can require a high level of scrupulous candor, especially in law enforcement. By contrast, for the criminal law we aren’t going to lock people up for failing to meet that “higher” standard. /54

I want to say too that there could have been other issues that either made the govt case weaker (their witnesses perhaps) or the defenses stronger; I’m just explaining what the obvious & likely problems are based on what’s publicly known (which is never the full picture.) /55

So stepping back from the purely case-specific legal analysis, of course it is unjust - in many ways - that the Flynn & McCabe’s cases were handled so differently. That is mostly the result of the out-of-control SCO prosecutors’ approach. /56

To further clarify a point. The Flynn & McCabe interview situations have a lot of similarities. In both they were discouraged from talking to a lawyer & were questioned about things that could be viewed as “operational” & FBI intentionally made that issue unclear. /57

That made them vulnerable to good arguments that their 5th & 6th Amendment rights were trampled. It appears the Covington lawyers didn’t challenge the SCO (or not enough) on those grounds for Flynn. I’d be shocked if Schertler didn’t raise them in defense of McCabe, however./58