They argued that prosecuting McCabe would be unprecedented, politically driven and contrary to the very legal thinking that Attorney General William P. Barr outlined when he decided President Trump should not be charged with obstruction of justice in the special counsel investigation, according to an analysis provided to The Washington Post by McCabe’s team, the substance of which was communicated to the Justice Department.
McCabe’s attorneys threatened to mount a no-holds-barred defense, arguing that the case should be thrown out because of Trump’s frequent personal attacks and raising the prospect that they would demand information that might show investigators were influenced by political bias.
McCabe’s team was told Thursday that Deputy Attorney General Jeffrey A. Rosen had rejected one of their last attempts to get the Justice Department to abandon the case. The team had been told last month that prosecutors had recommended moving forward and Jessie Liu, the U.S. attorney for the District, had endorsed their recommendation.
But as of Monday morning, no charges had been filed, and there was no sign of the grand jury that had been hearing evidence in the matter previously. That panel was suddenly called back to the D.C. federal courthouse last week after a months-long hiatus — which seemed to be an indication that it would soon be asked to consider approving an indictment.
As of Monday morning, they were still awaiting an answer, according to a person familiar with the matter. Spokeswomen for the Justice Department and the U.S. attorney’s office in the District declined to comment.
McCabe, 51, has become something of a lightning rod for all of the recent political battles surrounding the FBI and the Justice Department. He authorized the bureau to begin investigating Trump in what would become special counsel Robert S. Mueller III’s inquiry, and he is a frequent target of the president’s criticism.
McCabe became acting FBI director when Trump fired James B. Comey from the post in May 2017, but then he was fired in March 2018 after Justice Department Inspector General Michael Horowitz determined that he had lied to investigators exploring a media leak. Horowitz referred the matter to federal prosecutors in the District, who began using a grand jury to explore whether McCabe had committed a crime. McCabe is suing over his termination.
The inspector general’s report focused on an October 2016 article in the Wall Street Journal that detailed tensions inside the FBI and the Justice Department over two high-profile investigations — one of Hillary Clinton’s use of a private email server while she was secretary of state and the other of her family’s foundation. McCabe now acknowledges that he authorized two other FBI officials to speak to a reporter for the story. On multiple occasions, he denied to investigators that he had done so.
The analysis prepared by McCabe’s legal team conceded that he gave “inaccurate” answers to investigators with the FBI’s inspection division and the Justice Department’s inspector general’s office. But it said he was “sandbagged” in those conversations — which came at particularly fraught periods, including the day Comey was fired.
In that conversation, on May 9, 2017, McCabe thought that he would merely be reviewing a statement he had given to the inspection division about a different Circa News story, detailing a meeting in which McCabe was alleged to have made critical comments about Trump, according to the legal team’s analysis.
But the agents also asked McCabe about the Wall Street Journal report. McCabe’s team alleged that one of the agents did not want to do so because it would violate normal inspection division protocol.
McCabe’s team said that he was within his authority to authorize FBI officials to talk to reporters and that, because of that, had no motive to lie. They noted that Barr had said of Mueller’s investigation that if someone has not committed an underlying crime, that is an important factor in deciding whether they can be charged with obstructing an investigation.
“While some of the essential elements of obstruction of justice differ from the essential elements of false statements, the Attorney General’s analysis is equally applicable here: the absence of an underlying crime, or even underlying misconduct, bears directly on whether an individual had the requisite criminal intent to make a false statement, and whether the government will be able to prove that a defendant had such criminal intent,” McCabe’s team wrote in the analysis.
McCabe’s team asserted that charging him would be a “grievous mistake,” essentially criminalizing his “innocent failure to recall.” They noted in particular Trump’s frequent attacks on McCabe — a person close to McCabe’s legal team said the president had criticized McCabe more than 50 times publicly — and said they intended to ask a federal judge in Washington to throw out the case based in part on those attacks.
“There is no precedent in this country’s history for such attacks, and certainly no precedent for DOJ bringing criminal charges against a person the President has designated as a political enemy and accused of committing crimes,” McCabe’s attorneys said in the analysis. “The President’s conduct concerning Mr. McCabe has made the fair prosecution of any case against Mr. McCabe an impossibility.”
Spencer S. Hsu contributed to this report.
Correction: An earlier version of this story misstated when McCabe’s team was notified the deputy attorney general had rejected their request to have the case dropped. That happened Thursday.