What Is Justice for McCabe?

Hillary Clinton checked every box for a violation of the Espionage Act. So much so that, in giving her a pass, the FBI figured it better couch her conduct as “extremely careless,” rather than “grossly negligent.” The latter description was stricken from an earlier draft of then-director James Comey’s remarks because it is, verbatim, the mental state the statute requires for a felony conviction. It wouldn’t do to have an “exoneration” statement read like a felony indictment.

In point of fact, the careless/negligent semantic game was a sideshow. Mrs. Clinton’s unlawful storage and transmission of classified information had been patently willful. In contemptuous violation of government standards, which she was bound not only to honor but to enforce as secretary of state, she systematically conducted her government business by private email, via a laughably unsecure homebrew server set-up. Her Obama administration allies stress that it was not her purpose to harm national security, but that was beside the point. The crime was mishandling classified information, and she committed it. And even if motive had mattered (it didn’t), her purpose was to conceal the interplay between her State Department and the Clinton Foundation, and to avoid generating a paper trail as she prepared to run for president. No, that’s not as bad as trying to do national-security harm, but it’s condemnable all the same.

While Clinton’s mishandling of classified information got all the attention, it was just the tip of the felony iceberg. Thousands of the 33,000 emails she withheld and undertook to “bleach bit” into oblivion related to State Department business. It is a felony to misappropriate even a single government record. The destruction of the emails, moreover, occurred after a House Committee investigating the Benghazi massacre issued subpoenas and preservation directives to Clinton’s State Department and Clinton herself. If Andrew Weissmann and the rest of the Mueller probe pit-bulls had half as solid an obstruction case against Donald Trump, the president would by now have been impeached, removed, and indicted.

And that dichotomy is the point, isn’t it?

In the Obama Justice Department — as extended by the Mueller investigation, staffed by Obama Justice Department officials and other Clinton-friendly Democrats — justice was dispensed with a partisan eye. If you were Hillary Clinton, you skated. If you were Donald Trump, they were determined to dig until they found something — and, even when they failed to make a case, the digging never stopped . . . it just shifted to Capitol Hill.

The FBI’s former deputy director is in the Justice Department’s crosshairs. His lawyers are reportedly pleading with top officials not to indict him for lying to FBI agents who were probing a leak of investigative information, orchestrated by none other than McCabe.

McCabe is feeling the heat because the evidence that he made false statements is daunting. So daunting, in fact, that even he concedes he did not tell the truth to investigators. Listen carefully to what he says about the case — there being no shortage of public commentary on it from the newly minted CNN analyst. He never “deliberately misled anyone,” he insists. Sure, he grudgingly admits, some of his statements “were not fully accurate,” or perhaps were “misunderstood” by his interrogators. But “at worst,” you see, “I was not clear in my responses, and because of what was going on around me may well have been confused and distracted.”

Uh-huh.

Seems to me that General Michael Flynn “may well have been confused and distracted,” too. After all, it was on Flynn’s insanely busy first full day on the job as the new president’s national-security adviser that McCabe and Comey dispatched two agents — Peter Strzok and Joe Pientka — to brace him for an interview.

As our Rich Lowry recounts, Comey later bragged to an audience of like-minded anti-Trumpers at the 92nd Street Y that he knew this was a breach of protocol. Because seeking to interview a member of the president’s staff in a criminal investigation is a big deal, the Bureau is supposed to go through the attorney general, who alerts the White House counsel. That ensures that the administration is aware of the situation, and that the suspected staffer is advised of the reason for the interview and given an opportunity to consult with a lawyer.

Of course, if protocol had been followed, McCabe would not have been able to have Flynn grilled without preparation and without counsel. That put Flynn in a very different posture from Hillary Clinton.

She got every courtesy. The FBI not only scheduled her interview well in advance; before she showed up, before they asked her a single question, they had already finished drafting Comey’s statement exonerating her. Not just that. Clinton was permitted to bring along — among her phalanx of lawyers — her State Department aides Cheryl Mills and Heather Samuelson, key witnesses who had gotten immunity from prosecution. (In a real investigation, they’d have been considered subjects, not witnesses.) Allowing witnesses to sit in as lawyers was not just a violation of Justice Department practice (to say nothing of common sense). Federal criminal law prohibits former officials from lobbying the government on behalf of another person in a matter in which the former official was heavily involved while working for the government.

Recall that when he decided against an indictment of Clinton, Comey famously pronounced that “no reasonable prosecutor” would charge her. Even though Clinton’s conduct technically transgressed the law, the then-director rationalized that he could find no prior Espionage Act prosecution for gross negligence on facts analogous to Clinton’s case.

Where exactly would we expect find analogous facts? Not much precedent about secretaries of state sedulously setting up non-government communications systems for years of correspondence involving thousands of classified communications. But let’s put this historical anomaly aside. Let’s even ignore that military officials have been prosecuted for less-egregious classified-information violations. Here’s the point: In giving Clinton a pass, Comey explained that “responsible” prosecutorial decisions “consider the context of a person’s actions, and how similar situations have been handled in the past.”

Okay . . . then how is it that General Flynn gets investigated and charged?

Flynn, as a member of Trump’s transition team and incoming national-security adviser, had been consulting with the Russian ambassador, among other foreign counterparts. Context? There was nothing illegal or illegitimate about such communications. And even if it had been appropriate for the FBI and the Justice Department to inquire into the foreign policy of the incoming president elected by the American people, the Bureau did not need to interview Flynn. They had recordings of the conversations. What reason could there have been to question Flynn about them — without playing the recordings for him — except to lay the groundwork for a false-statements prosecution?

Moreover, how have similar situations been handled in the past? In investigating Flynn, the Obama Justice Department and the FBI theorized that he might have violated the Logan Act, a dubious law that purports to criminalize foreign policy freelancing by private citizens. Despite being on the books for over two centuries, the Logan Act has never resulted in a successful prosecution. Not once. In fact, it has not even been used to indict anyone in the last 170 years. Indeed, but for its desuetude, the Logan Act would certainly have been held unconstitutional; because the Justice Department never invokes it, no one has had the opportunity to challenge it. Yet, the Logan Act was used to justify investigating Flynn — a transition official whose very job entailed consultation with foreign officials.

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