Fired FBI official Andrew McCabe’s fate rests in the hands of a Trump-appointed prosecutor, now that the Justice Department’s inspector general has sent a criminal referral over an investigative finding that he lied to James Comey and bureau investigators about a media disclosure.
That referral, sent by Inspector General Michael Horowitz, is now being considered by the U.S. attorney for the District of Columbia, Jessie Liu. President Trump appointed Liu in July 2017.
“We were advised of the referral within the past few weeks,” McCabe’s counsel, Michael Bromwich, a former Justice Department inspector general, said in a statement. “Although we believe the referral is unjustified, the standard for an IG referral is very low. We have already met with staff members from the U.S. Attorney’s Office.”
Bromwich added, “We are confident that, unless there is inappropriate pressure from high levels of the administration, the U.S. Attorney’s Office will conclude that it should decline to prosecute.”
McCabe, the former FBI deputy director, is not alone in facing IG problems. It emerged Friday that even Comey is the subject of an IG review over his handling of classified information in memos he penned. But McCabe faces greater risk now that the findings of his case have been referred to the U.S. attorney.
Liu is a Republican and has a long history of political donations to GOP candidates, according to Open Secrets political donation records, but it does not appear that she donated to Trump.
Liu was criticized during her Senate confirmation hearing last year when it was revealed that she met with Trump at least once while being considered for the post — an unprecedented step in the process for potential U.S. attorney nominees.
But whether Liu will opt to prosecute McCabe is unclear. Referrals do not guarantee that charges will be brought, nor do they require prosecutors to act in any way.
Officials from the Justice Department, the inspector general’s office and the U.S. attorney’s office all declined to comment on the referral.
According to Federal Code 18 USC 1001, someone prosecuted for making false statements could face a fine and/or up to five years imprisonment.
Former high-ranking Justice Department official James Trusty, who served under Presidents George W. Bush and Barack Obama, told Fox News that prosecution was unlikely.
“It’s pretty unusual territory for a false-statement prosecution to be based on employment actions, like lying to your inspector general,” Trusty told Fox News. “It’s an unusual setting to have a false-statement prosecution because typically they’re associated with independent criminal probes. This is an employment probe.”
On the other hand, former U.S. Attorney Joseph diGenova, who last month was invited to join President Trump’s outside legal team but withdrew himself after a conflict of interest, said he thinks a prosecution is inevitable.
“This is a senior FBI official. He lied under oath to FBI and Justice Department officials at least three times,” diGenova told Fox News Friday.
The IG sent the referral Thursday after he found that McCabe leaked a self-serving story to the press and later lied about it to then-FBI Director Comey and federal investigators, prompting Attorney General Jeff Sessions to fire him just days before his pension was set to become effective.
The initial investigation into McCabe was ordered by Comey. While the former FBI chief may not have intentionally been after his deputy, he was looking for the source of a leak to The Wall Street Journal in an Oct. 30, 2016, story confirming a bureau investigation into the Clinton Foundation.
Horowitz found that McCabe lacked “candor” when questioned by FBI agents on multiple occasions, and that he wrongly told agents he did not authorize the disclosure and did not know who was responsible.
Bromwich blasted the Horowitz report, and said that it failed to “adequately address the evidence.” He suggested that the inspector general's office should “credit Mr. McCabe’s account over Director Comey’s.”
Comey has maintained McCabe did not tell him about the leak.
Trusty, weighing the odds of prosecution, said that making false statements in the context of an “administrative interview” is “less sexy to prosecutors than a false statement during a criminal investigation.”
“But that said, it’s a crap shoot,” Trusty said.
"They are prosecuting Michael Flynn for doing the same thing," diGenova noted.
However, Mueller’s team, which is probing Russian meddling in the 2016 presidential election, is prosecuting former national security adviser Flynn after he pleaded guilty to making false statements to the FBI as part of a criminal investigation — not an inspector general investigation.
“It is Liu’s job to take this up, and it’s got nothing to do with Trump,” diGenova said. “The Justice Department and the inspector general sent it to her, not because she’s a Trump appointee, but because she is the U.S. attorney.”
He added, “I think he will be prosecuted.”