On February 13th Attorney General Barr complained that Trump’s tweets “make it impossible for me to do my job.” He directly said, “it’s time to stop the tweeting about Department of Justice criminal cases.” The presumption was that Barr was referring to Trump’s numerous comments interfering in the sentencing process for Roger Stone. However, Barr may have also been referring to another case.
The very next day, the Department of Justice formally announced that it was closing its investigation of Andrew McCabe. In Trump world, McCabe was one of the great Deep State Satans. They imagined him responsible for the FISA abuses and believed with this investigation they had him. Trump world was convinced that McCabe leaked confidential information, then lied to the FBI about it. Their position was not wholly without merit (unlike most of their claims). McCabe himself admitted he lacked full candor with investigators, and an internal OIG investigation found that lack of candor violated internal policy. In Trump world, this was a chance to strike back against the Deep State, a balancing of the scales for the prosecutions of Flynn, Manafort, Stone, and so many others.
So imagine their disappointment when the DOJ announced no prosecution of McCabe. Most are in denial, just FYI, convinced this is a mere trick by the good guys to set up bigger things. It’s not a trick, and they may have their hero Trump to blame.
The non-prosecution announcement declined to prosecute “based on the totality of the circumstances.” Those circumstances were explained later in the day.
Not so coincidentally, the DOJ’s decision to not prosecute was announced on the deadline to release previously sealed documents in the case. Those documents include a status conference with the judge in the case. In that remarkable status conference, the judge expresses his concern that the entire case against McCabe is part of a political vendetta by Trump.
“The public is listening to what’s going on, and I don’t think people like the fact that you got somebody at the top basically trying to dictate whether somebody should be prosecuted … I just think it’s a banana republic when we go down that road, I think there are a lot of people on the outside who perceive that there is undue inappropriate pressure being brought to bear … It’s just, it’s very disturbing that we’re in the mess that we’re in in that regard.” — Judge Reggie Walton
The judge went on to actually express sympathy for the awkward position this put prosecutors in, and how glad he is that when he was in their shoes he did not have to put up with such nonsense.
“I’m just happy when I was in the Justice Department those type of things were not taking place that were putting either perceived or actual pressure on the office as to whether you prosecute somebody for a criminal offense. I’m happy I never had to endure that.”
For the record, this judge was appointed to the Federal District Court by George W. Bush. Prior to that Ronald Reagan appointed him to a District of Columbia court position.
Trump’s pressure to prosecute McCabe had been unrelenting and clear and over the top.
Trump retweeted this:
Trump went so far as to fire McCabe one day before his retirement. McCabe’s lawsuit against that remains pending.
With all that, one of McCabe’s obvious defenses, had he been indicted, would have been that it was a politically motivated prosecution. Judge Walton was acknowledging just that concern in the status conference, going so far as to label Trump’s pressure to prosecute McCabe as reflective of a “banana republic.”
It should be self evident that when the defense has a credible claim, recognized even by the judge, that a proposed prosecution is politically motivated, that makes prosecuting the case much more difficult. While self evident to you and me, it is not self evident to our President. This is what Barr meant when he complained Trump’s tweets keep him from doing his job. Barr can’t prosecute even people he and Trump think should be prosecuted, because Trump’s tweets undermine the case.
This is not the first time. As I noted, the judge in the court martial of Sergeant Bowe Bergdahl found Trump’s “unlawful command influence” a basis to mitigate Bergdahl’s sentence in a way that kept him out of jail. As I said then, the “President has only himself, and his lack of self-control, to blame.” In both instances, Trump only had to keep quiet about the case. He just couldn’t do it, and in both instances he undermined the prosecution of the case. He just doesn’t learn.
Dear Trumpers, if you are angry that McCabe was not prosecuted, blame Trump. It’s his fault. I hope you are very angry.