Prosecutors Near Decision on Whether to Seek an Andrew McCabe Indictment – The New York Times

WASHINGTON — Federal prosecutors in Washington appear to be in the final stages of deciding whether to seek an indictment of Andrew G. McCabe, the former deputy F.B.I. director and a frequent target of President Trump, on charges of lying to federal agents, according to interviews with people familiar with recent developments in the investigation.

In two meetings last week, Mr. McCabe’s lawyers met with the deputy attorney general, Jeffrey A. Rosen, who is expected to be involved in the decision about whether to prosecute, and for more than an hour with the United States attorney for the District of Columbia, Jessie K. Liu, according to a person familiar with the meetings. The person would not detail the discussions, but defense lawyers typically meet with top law enforcement officials to try to persuade them not to indict their client if they failed to get line prosecutors to drop the case.

An indictment of a former top F.B.I. official is extremely rare and would be the latest chapter in the saga of Mr. McCabe, who was fired last year over the issue now under criminal investigation — whether he failed to be forthcoming with internal investigators examining the F.B.I.’s dealings with the news media.

An indictment would be certain to draw praise from Mr. Trump, who has made his attacks on Mr. McCabe a centerpiece of his yearslong campaign to discredit the Justice Department and the F.B.I. over the Russia investigation.

But prosecutors may face headwinds if a case were to go to trial. One prosecutor quit the case and has expressed frustration with how it was being managed, according to person familiar with her departure, and a key witness provided testimony to the grand jury that could hurt the government’s case.

Additionally, Washington juries are typically liberal, and prosecutors could end up with jurors sympathetic to Mr. McCabe who believe that he, not the president, is the victim of a political witch hunt. Mr. McCabe’s lawyers would probably emphasize his long history at the F.B.I. and his role protecting the country.

Though the meetings between Mr. McCabe’s lawyers and top law enforcement officials suggest that prosecutors seem intent on moving forward with the case, they could also decide to pass on an indictment. Spokeswomen for the Justice Department, the United States Attorney’s Office for the District of Columbia and for Mr. McCabe all declined to comment.

Mr. McCabe, a 21-year F.B.I. veteran, was fired in March 2018 after Attorney General Jeff Sessions rejected an appeal that would have let him retire within days with a full pension. Mr. McCabe has said his dismissal was politically motivated and meant to undermine the special counsel’s Russia investigation by trying to discredit him as a witness.

The case against Mr. McCabe, 51, is centered on the findings of a scathing Justice Department inspector general’s office report last year that found that he had lacked candor on four occasions when questioned by the office’s investigators. Prosecutors appeared to be focused on Mr. McCabe’s answers about whether he authorized the disclosure of information to a Wall Street Journal reporter in October 2016 for an article about an investigation into the Clinton Foundation.

When initially questioned by F.B.I. agents in May 2017 about the disclosure to the reporter, Mr. McCabe said he had not approved it and did not know who did. Other evidence contradicted his assertion. Then in late July, two investigators with the inspector general’s office interviewed Mr. McCabe about the disclosure to the newspaper. They determined he had not been truthful, saying he had essentially made the same false denial as he did previously in May, “except this time the false denial was made in an audio-recorded interview.”

The inspector general referred his findings to federal prosecutors in Washington in the spring of 2018 after concluding his investigation.

But what should have been a seemingly straightforward case with a limited number of witnesses and facts has dragged out amid internal deliberations. It has been under investigation for so long that the term expired for the grand jury hearing evidence. One of the lead prosecutors, Kamil Shields, was unhappy with the lengthy decision-making process and has since left the Justice Department for private practice. Ms. Shields declined to comment.

Another prosecutor, David Kent, also left the case recently. It is not clear why he departed but it would be an unusual move if prosecutors were indeed planning to charge Mr. McCabe.

Among the witnesses called before the grand jury was Lisa Page, who worked closely for Mr. McCabe at the F.B.I. as his special counsel and later gained notoriety for text messages she exchanged with another F.B.I. official disparaging Mr. Trump. Mr. McCabe had authorized Ms. Page to speak with the Wall Street Journal reporter, but he told investigators on two occasions that he did not remember doing so. He later corrected himself.

Ms. Page told the grand jury that Mr. McCabe had no motive to lie because he was authorized as the deputy F.B.I. director to share the information with the newspaper. Her assertion could be damaging for prosecutors, who would have to prove that Mr. McCabe knowingly and intentionally lied to investigators. A lawyer for Ms. Page declined to comment.

The inspector general said that Mr. McCabe’s decision to release the information to the newspaper was self-serving — “an attempt to make himself look good,” according to the office’s report — but Mr. McCabe has said it was justified and in the public’s interest. The inspector general said the disclosure effectively confirmed the existence of the Clinton Foundation investigation, which James B. Comey, then the F.B.I. director, had refused to do in July 2016 in congressional testimony.

Federal law enforcement officials typically do not publicly discuss open law enforcement investigations, in part to keep the public from judging someone under investigation before all the facts are uncovered.

Mr. McCabe sued the F.B.I. and the Justice Department this month, saying that his dismissal was retaliatory and politically motivated. He accused Mr. Trump of “purposefully and intentionally” pushing the Justice Department to demote and terminate him as part of an “unconstitutional plan” to discredit and remove law enforcement officials who were “deemed to be his partisan opponents.”

Mr. McCabe’s lawyers have also said that the inspector general’s report was “deeply flawed.”

While Mr. McCabe faces the prospect of prosecution, his onetime boss, Mr. Comey, managed to avoid it when the Justice Department declined to prosecute him over memos he wrote about his interactions with the president. The department had determined that they contained classified information and investigated whether Mr. Comey mishandled them, but prosecutors quickly determined the case did not warrant charges.

An inspector general’s report on Mr. Comey’s memos is due soon.

Mr. Comey could play a key role as a witness in any trial of Mr. McCabe because the inspector general believed that Mr. McCabe had strong reasons to hide the Clinton Foundation disclosure from the director because he likely would not have approved it. Mr. McCabe has said he told Mr. Comey about the revelations to the newspaper, but Mr. Comey has said he does not remember the conversation. The inspector general said Mr. McCabe was untruthful with Mr. Comey during those discussions.

After his firing, Mr. McCabe published a best-selling memoir about his time at the F.B.I., and CNN announced last week that he will become a contributor. Mr. Trump called the move “disgraceful,” and others criticized the news network for hiring a contributor who is still centrally involved in news events.