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Daily Recap — September 12

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Hope Springs Eternal

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Trusted CNN commentator and presidential insurance policy underwriter Andy McCabe could reportedly be on the receiving end of something previously thought to only apply to Republicans: an indictment!

Federal prosecutors recommended criminal charges against McCabe, who you’ll remember was fired from the FBI a day before he was set to receive his pension for “lack of candor,” as described by an IG report. He lied to the FBI. You know, the charge Mike Flynn and George Papadopoulos were indicted on at warp speed.

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The Crime

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The IG concluded that McCabe “improperly authorized a leak about a federal investigation into the Clinton Foundation in the final weeks of the 2016 presidential campaign.” His aforementioned lack of candor dealt with that leak. McCabe didn’t just leak details regarding a federal probe, though. As I’ve outlined in many pieces before, he used his position to work hand in hand with media to create his own self-serving narrative.

At the time this “leak” took place, McCabe was receiving increasing public scrutiny regarding donations to his wife’s state senatorial campaign. The donation was to the tune of $700,000 and came from former Virginia governor Terry McAuliffe, better known as Hillary’s bag man with a specialty in Chinese money laundering. This came at a time when the IG was referring evidence of Hillary’s private server over to the FBI for a criminal investigation.

In order to make himself look better in this scenario, McCabe pulled a story straight from his rear end about how he was fighting high-level officials in the FBI to make sure the Clinton investigation was pursued fully and earnestly. He “leaked” this “info” to the Wall Street Journal and voila! — they published a story on how the heroic Andy McCabe was ensuring that the powerful and politically-connected would not escape accountability on his watch.

It was all a lie, of course. And when the IG probe pressed him on it, he threw his buddy Jim Comey directly under the bus, claiming that it was all authorized by Comey’s office. Comey then returned the favor, telling OIG investigators that he had authorized no such leak and that McCabe was on his own. Given that self-serving leaks were part and parcel of FBI culture under Comey, it would not be surprising to learn that the leaks had indeed been authorized. But given that culture, it’s also possible that McCabe never even felt compelled to ask Comey’s blessing.

In the credibility equivalent of a tallest midget contest, investigators ultimately believed Comey over McCabe and cited him for lying about both doing the leaking and the content of the leak itself. And so here we are.

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What now?

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McCabe’s lawyers appealed the decision to Deputy Attorney General Jeffrey Rosen, who rejected their request, who were informed of the rejection today. The decision clears the way for prosecutors to ask a grand jury to indict McCabe, though it’s from certain at this point whether that will happen. That will be up to a federal grand jury in D.C. 

The good news is that grand juries don’t require the same standard of evidence for indictment as trial juries do for conviction. All prosecutors have to do is show there’s justification to go forward with a trial. By any reasonable measure, there is of course ample reason to believe McCabe may have broken the law. According to his own FBI brethren, he did.

The bad news is the grand jury is located in D.C., which isn’t the most Trump-friendly environment. Given the politically-charged nature of this case, it’s very easy to see at least a few jurors flat out refusing to remove forward based on the narrative that’s been pushed through the media, which is that McCabe is the victim of a vengeful president. Jury nullification is a distinct possibility, and given our polarized environment, some may even consider it likely.

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Big Picture

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Should McCabe be prosecuted for lying to the FBI? Absolutely. God knows, so many on the Right have. Will he be? Frankly, I’m not betting on it.

That said, it’s a promising sign to see people as high as the Deputy AG rejecting McCabe’s appeals and moving ahead with the criminal justice process. Up to now, that sort of thing was unheard of for someone as high up the food chain as McCabe. However small, there seems to finally have been a break in the good ole boy chain that has traditionally protected the Swamp.

Is this the beginning of a new trend at the DOJ? With all the upcoming probes set to wrap up over the next few months, we’ll certainly find out.

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