On Friday, February 14, 2020, attorneys for the US Department of Justice (DoJ) formally notified the attorneys for former FBI Deputy Director Andrew McCabe that  “… the Government has decided not to pursue criminal charges against your client, Andrew G. McCabe, arising from the referral by the Office of the Inspector General (OIG) to our Office of conduct.”

At first glance, this decision suggests that McCabe will not be prosecuted for clearly lying to FBI agents and the DoJ Office of Inspector General conducting an investigation into the abuse of FISA warrants.  The decision caused many television and radio personalities and skews media to scream that McCabe had received preferential treatment, that there is a two-tiered system of justice in the USA.

Maybe they will be proven to be correct, however my opinion is that we should simply if not patiently wait and see.

First, the allegations of McCabe’s lying (e.g., the elements of perjury) or any other chargeable criminal offense would have to be proven by admissible evidence in federal court before he could be convicted.  While  a reasonable man might conclude from information already in the public domain that McCabe committed some crime, that is a far cry from having the admissible evidence essential to prove McCabe’s guilt of this specific allegation beyond a reasonable doubt.

Second, although perjury is unquestionably a serious charge, there is also probable cause to believe that McCabe and others may have committed much more serious offenses against the United States.  Those offenses are being investigated by DoJ at the direction of Attorney General Bill Barr and under the supervision of US Attorney John H. Durham of Connecticut.

If the DoJ had instead decided to proceed with the just-declined charge, the criminal justice process to ensure McCabe’s rights to access to the evidence against him would kick in much more quickly.  Unnecessary premature disclosure during trial discovery of DoJ investigations by federal prosecutor Durham that already in progress, investigations that are far more serious and have grave national security consequences that are coordinated could jeopardize the success of those investigations and others yet to be formally “numbered up.”

Though McCabe is well known now, he is little more than a tiny minnow in the ocean of much larger and even smellier fish which may include former President Barack Hussein Obama, former Obama Vice President Joe Biden, former Obama Secretaries of State Hillary Clinton and John Kerry, Obama senior advisor Valerie Jarrett, Obama NSC advisor Susan Rice, Obama former UN Ambassador Samantha Power, Obama former Attorneys General Eric Holder and Loretta Lynch, former DoJ Deputy Attorneys General Robert Mueller, Sally Yates, Dana Boente, and Rod Rosenstein, former Director of National Intelligence James Clapper, former CIA Director John Brennan, and former FBI Director James Comey.

I’d prefer to see some of these people being investigated, indicted, tried, convicted and then offered court-ordered blindfolds and a last cigarette rather than obscenely lucrative book deals and television gigs.   If letting McCabe escape a perjury charge now and go on to live out his life in ignominy as an overpaid proven liar on CNN or NBC skews shows helps facilitate such outcomes, I’m all for it.