Certain current and former members of the FBI and the Department of Justice are steeling themselves for Thursday’s anticipated release of the inspector general’s report. The report is rumored to be a scathing rebuke of decision-making in the Hillary Clinton private email server investigation.
Central figures like former Attorney General Loretta Lynch and fired FBI Director James Comey are included, according to sources familiar with a draft copy.
President Trump is scheduled to receive a briefing on the report’s findings ahead of its release.
Some journalists and media analysts have already begun feeble attempts to pre-emptively blunt the report’s impact, bemoaning the fact that partisan critics of Comey, et al, may “weaponize” the evidence to bludgeon institutions they feel are sacrosanct and beyond reproach.
And of course, improper actions and dubious decisions by civil servants, political appointees, and elected officials are “justified” under the “We had to, because of Trump!” exception to rules, protocols, and laws.
And with a recent lawsuit filed by a lawyer for fired former FBI Deputy Director Andrew McCabe, we just might have our first insight into the defense stratagem for those implicated in the IG’s investigation into the conduct of those associated with the Clinton probe.
One of McCabe’s attorneys, David Snyder, argues that McCabe’s dismissal – just hours before his planned retirement and eligibility for pension benefits – violated federal law and was handled in a manner inconsistent with the agency’s long-standing policies.
Most curiously, McCabe, who was sanctioned by an earlier IG report that determined that he lied to investigators while under oath, is floating a trial balloon that may give a window into his defense from the criminal referral to DOJ that may result in his indictment.
NPR’s Carrie Johnson clearly distilled the ex-FBI deputy director’s potential legal strategy as a factor of McCabe’s post-firing Washington Post op-ed and various statements from his attorneys:
And there you have it.
This, most assuredly, is the first test case of the modern application of a legal strategy made famous by none other than Harvard Law Professor-Emeritus Alan Dershowitz. Long before he became the scourge of liberal #Resistance members everywhere, he was a famed defense attorney and advocate for nonpartisan libertarian principles. Dershowitz authored a book in 1994 that detailed how defendants like the Menendez Brothers and Lorena Bobbitt had argued they weren’t at fault for ghastly crimes.
In The Abuse Excuse: And Other Cop-Outs, Sob Stories, and Evasions of Responsibility, Dershowitz laid out precisely how the employment of the “abuse excuse” was enabling defendants to literally get away with murder.
No one in the IG investigation is under investigation for murder. But McCabe has already been sanctioned for “lack of candor” – lying some four times, with three of the false statements being offered while under oath.
These are serious infractions for the FBI’s second-in-command, who also served briefly as acting FBI director following Comey’s firing in May 2017.
There is zero “wiggle room” for FBI agents in the candor department. Lies of commission and lies of omission are handled the same. If you are caught mischaracterizing events, your utility as a prosecution witness is disabled. And if we are to hold young probationary agents to this exacting zero-tolerance standard, a deputy director deserves the same scrutiny and sanction.
But could this media campaign by McCabe and his attorneys indicate an “abuse excuse” defense will be employed if McCabe is eventually indicted, or during efforts to salvage his pension and full retirement benefits?
McCabe’s infractions were self-serving. As the original IG report points out, McCabe was guilty of not only lying, but his conduct was “designed to advance his personal interests at the expense of Department leadership.” Therefore, it was clearly not within the scope of the public interest exception.
But the “abuse excuse” is purposely set up to deflect responsibility away from someone charged with a crime, assigning them a “victimization” status, and placing blame for their actions on circumstances or someone else.
In this case, President Trump (and his allies) are supposedly to blame.
And with the uber-irrational Trump Derangement Syndrome sweeping the nation, this defense might just have a chance. Some people feel that the surprising rise of Trump demands a reflexive counter that condones tactics and techniques inconsistent with the law.
If McCabe has any success with this explanation for his actions, watch for others rebuked in Thursday’s report to employ the same defense. Success, after all, fosters imitation.
Buckle your seatbelts. This is going to get interesting as we are about to witness the “Trump abuse excuse” as a rationale for poor decision-making and possible outright lawbreaking.
Borrowing from Carl Sandburg’s sage legal advice:
If the facts are against you, argue the law.
If the law is against you, argue the facts.
If the law and the facts are against you, pound the table and yell like hell, “Trump made me do it!”
James A. Gagliano (@JamesAGagliano) worked in the FBI for 25 years. He is a law enforcement analyst for CNN and an adjunct assistant professor in homeland security and criminal justice at St. John’s University.
