The Justice Department’s inspector general is reportedly close to releasing a report on its investigation into the handling of the Clinton Foundation. FBI Director Christopher Wray reportedly asked deputy director Andrew McCabe to step down in light of some of the findings of the inspector general.
One aspect of the reported findings, however, stands out. According to these reports, investigators believed that McCabe misled them about his approval of a leak to the media on the Clinton investigation. An alleged false or misleading statement by McCabe could rekindle questions about how the Justice Department addresses alleged false statements within its own ranks.
Ultimately, Inspector General Michael Horowitz has the authority to refer a matter to criminal investigators investigators in cases of false statements or other crimes. He can also refer matters to state bars in cases of professional misconduct by lawyers. He could do either in the matter of McCabe if investigators conclude that McCabe intentionally misled them. However, if history is any guide, McCabe is unlikely to find himself facing a charge.
It is a perceived luxury enjoyed by federal prosecutors that routinely charge others with even borderline false statements but rarely face such charges themselves. While most prosecutors adhere to the highest ethical standards, a minority of Justice Department lawyers have been accused of false or misleading statements in federal cases. However, they are virtually never charged with false statements by their colleagues. There is no such reluctance in using this easily charged crime against targets outside of the department.
Consider the case of former National Security Adviser Michael Flynn. He now faces a prison stint after pleading guilty to a single false statement about a meeting with Russian diplomats during the Trump presidential transition period. While Flynn did not deny the meeting, which was entirely legal, he denied discussing sanctions with the Russians. Mueller charged him with lying or misleading federal investigators under 18 U.S.C. 1001. He did so even though investigators working under former FBI Director James Comey reportedly had concluded that Flynn did not intend to lie and should not be charged criminally for the omission.