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Opinion >  Syndicated columns

Noah Feldman: Justice Department is headed down a dangerous path

By Noah Feldman Bloomberg View

Before Attorney General Jeff Sessions fired Deputy FBI Director Andrew McCabe for alleged dishonesty, McCabe led an investigation of Sessions for, well, dishonesty. This may or may not be proof of wrongdoing in McCabe’s firing. Sessions’ lawyer says the investigation of the attorney general, which was continued by special counsel Robert Mueller, is over; it’s at least possible that Sessions didn’t know that McCabe was the one investigating him.

Regardless, Wednesday’s revelation by ABC News is a further step in the gradual collapse of the ideal of depoliticized criminal investigation in the Department of Justice and the Federal Bureau of Investigation. That the attorney general and a member of the FBI leadership were mutually investigating each other should be the stuff of a “Homeland” episode, not front-page news in a real, functioning democracy.

To make sense of the new information – and its consequences, which could potentially be far-reaching – you have to start with the puzzle surrounding the McCabe firing on Friday.

It’s highly unusual to the point of being downright bizarre for a senior official like McCabe to be fired just days before he was set to retire. The firing can’t be explained by a desire to get him out the door, because he was already on his way through it. Nor is it very likely to have been pure spite, at least on Sessions’ part.

McCabe alleges he was fired because the administration wants to discredit his possible testimony in any future proceedings.

The news that McCabe led a probe of Sessions for potentially lying to Congress could conceivably give Sessions a reason to want to discredit McCabe. That possible inference could be very bad for Sessions. If he fired McCabe in the hopes of influencing future investigations of himself, that could be obstruction of justice.

If Sessions’ lawyer is telling the truth when he says that Mueller’s team has told him it’s no longer investigating Sessions (which the lawyer probably is, because it would be too risky to lie about this), then Sessions probably isn’t in personal jeopardy from McCabe. So it would be too quick to draw the conclusion that Sessions fired McCabe to protect himself.

But if Sessions fired McCabe to discredit McCabe from testifying against Trump, that, too could potentially be obstruction of justice.

As cover, Sessions has an inspector general’s report from career officials within the Department of Justice. The full report has not yet been released, but we know it charges McCabe with “lack of candor” on multiple occasions, “including under oath” in connection with leaks to the press that McCabe apparently authorized regarding investigation of the Clinton Foundation.

The inspector general’s report will give Sessions some protection against any charges that he had a corrupt motive in firing McCabe. He will say that his motivation was simply the same as that provided by the report. And it wouldn’t be easy to prove otherwise on purely circumstantial grounds.

Yet as a matter of law and of principle, the presence of a legitimate motive for the firing doesn’t rule out the idea that illegitimate motive was also in play. The firing could have been justified and yet also tainted, as Rep. Adam Schiff, D-Calif., has suggested.

But even if we assume that Sessions will emerge unscathed from the McCabe firing, the true takeaway from the revelation that he was once investigated by McCabe is the disastrous breakdown of the traditional norm of depoliticized criminal investigation in the FBI and Justice Department.

Think about it: McCabe, a career FBI veteran, commences an investigation of the sitting attorney general when it emerges that the nation’s top law-enforcement official stated under oath that he had never met with Russians during the campaign yet in fact had met at least twice with Russian Ambassador Sergei Lavrov. That’s extreme enough, but then the same attorney general has to recuse himself from Russia matters, and a special counsel is appointed. The deputy FBI director now passes off his investigation to the special counsel.

Then, less than a year later, the same FBI official, McCabe, is fired by the same attorney general he was investigating. He’s fired for lying – about a politically charged investigation, no less. The chickens have come home to roost, or so any observer could be forgiven for thinking.

How can anyone watching this scenario feel confident that there has been nothing but a sequence of objective, nonpolitical investigations? It’s possible, of course. McCabe could have been totally apolitical in investigating Sessions. Sessions could have been totally apolitical in following the recommendation of the inspector general to fire McCabe.

Maybe somewhere in this great green land there is someone who believes that both sides acted without reference to politics. Lots of people probably believe that their favorite side was apolitical and that the other side was politicizing criminal investigation.

And lots more no doubt think both sides were playing politics with the law.

That’s a recipe for loss of public faith in one of our most important public institutions: no less than federal law enforcement itself. That is a tragedy – one you can watch on TV.

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His seven books include “The Three Lives of James Madison: Genius, Partisan, President” and “Cool War: The Future of Global Competition.”

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