I don’t like attorneys who do free lawyering for guilty people, and that’s what Jonathan Turley is engaged in here. And I am being generous, because Turley is doing more than offering free public relations for Michael Flynn. He’s using his legal mind and credibility to inject poison into the mind of the public.
I am not going to assume that Andrew McCabe is telling an unvarnished version of the truth when he says that he did not intentionally mislead federal investigators who were looking into his role in authorizing a briefing for a reporter during the last days of the campaign. He claims that when he realized that some of his answers “were not fully accurate or may have been misunderstood” that he “took the initiative to correct them.” He blames any inaccuracies on his having been “confused and distracted” at the time he was questioned. He takes full responsibility for his errors and insists it was not a “lack of candor” that led to the misunderstanding. I don’t really know what any of that means, and I won’t understand it until I see the Inspector General’s report. What I feel confident in saying now, however, is that what McCabe did was not equivalent to what Flynn did.
Turley suggests that one of two things should happen. Either McCabe should be charged with lying to investigators under the same 18 U.S.C. 1001 statute used to charge Michael Flynn or the charges against Flynn should be dropped.
I have admittedly been a longtime critic of the use of 18 U.S.C. 1001 and how it has been used by prosecutors to indict for any statement deemed misleading or false. However, the greatest danger is posed not in the broad scope of this law but its arbitrary enforcement. Two officials are accused of misleading statements in interviews. One is bled financially to the point that he must sell his house and then forced into a criminal plea. The other gets a delay in his pension. Both were very very busy people, but only one is looking at prison.
One part of this is another iteration of something I’ve seen conservative lawyers do repeatedly in these types of cases, including the Scooter Libby prosecution. They suggest that there is something wrong when a prosecutor uses one statute instead of another or ignores the Justice Department sentencing guidelines when offering a plea deal or decides to charge something other than the underlying crime that led to the investigation in the first place. This is all obfuscation.
Turley is really explicit when he throws this sand in our eyes.
Once again, it is not a sufficient argument to note that Flynn was facing other charges. Prosecutors are under a sworn duty to apply laws faithfully and fairly. They are not allowed to simply charge any crime that is convenient. They must be able to attest to applying the criminal code in a consistent fashion. We do not know how strong the other alleged crimes were against Flynn. We have one crime that the prosecutors maintained was established on the facts in the indictment. Those facts are strikingly similar on that crime to McCabe.
Flynn was charged under the 18 U.S.C. 1001 statute because he had to be held accountable for something. Of the plethora of options available to Mueller, it was the most suitable statute because it carried the appropriate range of punishments considering that Flynn was offering to plead guilty and cooperate with the investigation of the Trump campaign.
I wrote about this almost eleven years ago when I cited prosecutor Patrick Fitzgerald’s explanation for why he didn’t charge Scooter Libby or anyone else for the crime of outing Valerie Plame Wilson.
FITZGERALD: When you do a criminal case, if you find a violation, it doesn’t really, in the end, matter what statute you use if you vindicate the interest. If Mr. Libby is proven to have done what we’ve alleged — convicting him of obstruction of justice, perjury and false statements — very serious felonies — will vindicate the interest of the public in making sure he’s held accountable.
It’s not as if you say, “Well, this person was convicted but under the wrong statute.”
Except, for people like Turley, that’s exactly what this is like. Anything else is an unequal application of the law and an injustice.
Flynn agreed to cop a plea and cooperate in return for having decades of potential prison time knocked off of his charges. That he was still charged was a way of vindicating “the interest of the public in making sure he’s held accountable” for his actions, but in the end it was the end result of a protracted negotiation. You don’t look at that and say he was charged with the wrong statute.
For all of these reasons, you also can’t compare the situation to the one McCabe finds himself in. He was fired in humiliating fashion which is one way of vindicating the public’s interest in holding him accountable. Suggesting that he’s getting off easy is dishonorable absent some evidence to support it, and Turley has no more information than the rest of us do, so he’s in no position to say if McCabe ought to be charged with a crime.
In the worst case scenario, McCabe deliberately lied to investigators about his role in doing something completely legal. Turley insists this is the worst case scenario for Flynn, too, which is ludicrous on its face. Even on the narrow question of Flynn’s conversations and meetings with Russian officials, the suspicion is that he was compromised by the Russians and subject to blackmail. He was being investigated for offering the Russians sanctions relief and other benefits in return for services rendered. Whether he was doing this for himself or on the president’s behalf or some combination of both, it would be the most serious of crimes and not at all akin to what McCabe may have been trying to hide. McCabe was within his authority as deputy director of the FBI to sign off on a briefing for a reporter. There’s no allegation this briefing was done to cover up a crime. There is no underlying crime. There’s nothing other than the misleading statements themselves that needs to be vindicated.
I used to have some respect for Turley, but his willingness to use this kind of rhetoric is totally irresponsible and it’s just helping to tear this country apart as the two political sides increasingly cannot agree on even a basic set of facts. Turley provides the right with a high-minded sounding authoritative legal argument to believe that the laws have been unequally applied and that Flynn has been railroaded. And it’s the worst kind of bullshit.
