Former FBI Acting Director Andrew McCabe and his Legal Team have conducted a vigorous publicity campaign allegations that he lied to media leak investigators.
Behind the scenes they were just as aggressive.
In recent months, McCabe's lawyers have shared with federal prosecutors and senior Justice Department officials a specific rebuttal of what they see as deficiencies in a possible criminal case against McCabe.
They argue that McCabe's prosecution will be unprecedented, politically driven, and contrary to the very legal thinking that Attorney General William P. Bar outlined when President Trump was not accused of obstructing justice by obstructing justice. according to an analysis provided to The Washington Post by the McCabe team whose substance was reported to the Justice Department.
Mackay's lawyers threatened to defend without detention, arguing that the case would be dismissed because of Trump's frequent personal attacks and raising the prospect that they would require information that could show investigators were influenced by political bias.
It was reported to McKay's team that Deputy Attorney Jeffrey A. Rosen had rejected one of their last attempts to get the Justice Department to dismiss the case. Last month, McCabe's team reported that regular prosecutors had recommended moving forward, and DCUS prosecutor Jesse Liu supported their recommendation.
However, no charges were filed as of Monday morning and there was no indication at a large hearing that he had previously heard evidence on the matter. That panel was suddenly sent back to the UK judiciary last week after a long month-long hiatus – which seemed to indicate they would soon be asked to consider approval of the prosecution.
When they come and go without doing so, the Mackay team asked federal prosecutors whether major jurors had dropped the charges – a remarkable step that would be a major disruption to both the Department of Justice and the U.S. Attorney's Office  As of Monday morning, they were still waiting for an answer, according to a person familiar with the question. Justice Department spokesman and spokesman for the U.S. Attorney's Office in D.C. did not immediately return messages seeking comment.
McCabe, 51, has become a lightning-fast gesture for all the recent political battles over the FBI and the Department of Justice. He authorized the bureau to launch an investigation into Trump into what would become the Robert S. Mueller III probe, and he is a frequent target of criticism of the president.
McCabe took over as FBI director when Trump fired James B. Komi in May 2017, but he himself was fired in March 2018 after Justice Department Inspector General Michael Horowitz determined he lied to investigators investigating the media leak. Horowitz referred the matter to federal prosecutors in D.C. who began using a large court hearing to investigate whether McCabe had committed a crime. McCabe is suing for his termination.
The Inspector General's report focuses on an October 2016 report in the Wall Street Journal detailing tensions in the FBI and the Department of Justice over two high-level investigations – one using Hillary's personal email Clinton server and the other at the core of her family. Mackay now admits he has authorized two other FBI officials to speak with a reporter about the story. He repeatedly denied investigators that he had done so.
The analysis, prepared by McCabe's legal team, acknowledges that he gave "inaccurate" responses to investigators from the FBI's Department of Justice and the Inspector General of the Department of Justice. But he claims he was "sandblasted" in those conversations – which came in particularly sophisticated periods, including the day of Comi's dismissal.
In that May 9, 2017 conversation, McCabe believed that it would simply be a revision of a statement made by the Circuit News Circa News detailing an alleged meeting. that McCabe made critical comments about Trump, according to an analysis by the legal team.
But agents also asked McCabe for the Wall Street Journal Report. McCabe's team claims that one of the agents did not want to do so, as this would violate the normal protocol of the inspection unit.
McCabe's team claims that he was within his authority to allow FBI officials to speak with reporters and, therefore, had no motive to lie. They noted that Bar told the Mueller investigation that if one did not commit a major crime, it was an important factor in deciding whether he could be charged with obstructing the investigation.
"While some of the basic elements of obstruction of justice differ from the essential elements of false statements, the Attorney General's analysis is equally applicable here: the absence of a fundamental crime or even a fundamental misconduct directly depends on whether a person has the necessary criminal intent to made a false statement and whether the government would be able to prove that the defendant had such a criminal intent, "McCabe's team wrote in the analysis.
McCabe's team alleges that the prosecution oh it would be a "grave mistake" which essentially criminalizes his "innocent omission to remember. "noted, in particular, Trump's frequent attacks on McCabe – a person close to McCabe's legal team, said Trump had criticized McCabe more than 50 times in public – and said he intended to ask a federal judge in the United Kingdom to dismiss the case in part. based on these attacks.
"There is no precedent in the history of this country for such attacks, and certainly no precedent for the introduction of criminal charges against the DOJ against a person designated by the President as a political enemy and accused of crimes," claim McCabe's attorneys in the analysis. "The President's conduct regarding Mr. McCabe made it impossible to prosecute any case against Mr. McCabe."
Spencer S. Hsu contributed to this report.