Federal prosecutors in Washington have recommended that criminal charges be filed against Andrew McCabe, the FBI’s former deputy director, and the Justice Department has rejected a last-ditch appeal by McCabe’s lawyers, according to a report on Thursday by Fox News. This clears the way for what appears to be McCabe’s imminent indictment.
Jesse Liu, the U.S. attorney for the District of Columbia (appointed by Trump), has reportedly decided that McCabe should be charged. The decision was based on a referral by the Justice Department’s inspector general (appointed by Obama), Michael Horowitz. In a comprehensive report last year, issued after a probe of a leak of investigative information to the media orchestrated by McCabe, Horowitz found that McCabe had misled investigators, including making false statements under oath. As we observed here when the IG’s report was released, the case laid out by Horowitz appears compelling.
The Fox report indicates that Liu signaled to McCabe’s lawyers that she was persuaded to file charges. McCabe’s lawyers then appealed that decision to Jeffrey Rosen, the deputy attorney general (DAG). At least one source told Fox that McCabe’s team received an email from the Justice Department, which states: "The Department rejected your appeal of the United States Attorney’s Office’s decision in this matter. Any further inquiries should be directed to the United States Attorney’s Office."
In the Justice Department chain of command, U.S. attorneys (who are presidential appointees confirmed by the Senate) report to the DAG. For most crimes, including false-statements offenses, the district U.S. attorney does not need authorization from the Justice Department to file charges. Nevertheless, in light of the facts that McCabe was a high-ranking Justice Department official (the FBI is part of DOJ) and that the potential charges stem from a Justice Department IG investigation, it makes sense that the district’s chief prosecutor would stay her hand to allow McCabe the opportunity to appeal to the Justice Department.
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.