Has Trump spoiled the Andrew McCabe prosecution?

Andrew McCabe, the former deputy director of the FBI, deserves to be prosecuted. His crimes, false statements to federal investigators, were documented by the Justice Department’s inspector general, Michael Horowitz, an Obama appointee. Andy McCarthy discusses the crimes here.

McCabe is an enemy and fierce critic of President Trump. I always worry when enemies of the president face criminal prosecution. Sending political enemies to prison is a hallmark of authoritarian regimes (in totalitarian regimes such enemies are often executed). In close cases, the government should err on the side of not prosecuting the president’s political enemies. However, McCabe’s case doesn’t seem like a close one.

Jessie Liu, the U.S. Attorney for the District of Columbia, apparently has decided to bring a criminal case against McCabe. His lawyers reportedly appealed this decision to the Deputy Attorney General who reportedly denied the appeal.

But yesterday came and went without a grand jury indictment, and the grand jury, which had reconvened after a month to consider the case, reportedly was sent home.

What does this mean? Quite possibly, it means nothing. However, another possibility is that the grand jury balked at the prosecutor’s recommendation to indict.

Whether or not that’s the case, President Trump, through his public attacks on McCabe, has made it more difficult to indict and convict McCabe. McCarthy, a former prosecutor, explains:

McCabe has indicated that, if charged, he would claim that the Justice Department was indicting him because of pressure from the White House. President Trump has been an unrestrained critic of McCabe, accusing him of rampant corruption.

There are reasons for the Justice Department to be concerned that the president’s public drumbeat would redound to McCabe’s benefit. An indictment would likely lead to a jury trial in Washington, where the president is unpopular.

The grand jury, too, is in Washington.

It is better that one man get off the hook for lying to the feds than that the government engage in a pattern of prosecuting enemies of the president whom he singles out for public attack. Again, I don’t believe this is what’s going on with the McCabe prosecution. The Trump Justice Department continues to give the benefit of the doubt to worse enemies of Trump, and bigger targets of his wrath, than McCabe. James Comey comes to mind.

But Washington, D.C. jurors and/or grand jurors might not see McCabe’s case this way. It would be easy to understand why, given Trump’s public attacks on McCabe.

If McCabe gets off the hook, he’ll likely have Donald Trump to thank.

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