Renato Mariotti is the Legal Affairs Columnist for POLITICO Magazine. He is a former federal prosecutor and host of the “On Topic” podcast.

The case federal prosecutors reportedly are preparing to bring against former FBI Deputy Director Andrew McCabe for lying to his colleagues at the FBI is weak and likely to fail at trial. And if it does, the Department of Justice will be embarrassed—again—and struggling to answer why it brought the case in the first place.

This isn’t a case where someone suspected of wrongdoing lied to the FBI during an interrogation. McCabe was deputy director of the FBI and allegedly lied during an internal investigation of a leak related to the Hillary Clinton email investigation that put him in a positive light. The leak to the Wall Street Journal was not illegal and he had the power to authorize it (a standard if unseemly Washington practice), but he allegedly lied because then-FBI Director James Comey would not have approved of his disclosure.


The results of that investigation, as well as a separate internal investigation as to whether he lied, were released by the Justice Department’s inspector general earlier this year. Because that report is public, we know the prosecution will focus on four separate incidents. But collectively, they add up to much less than President Donald Trump’s tweets would have people believe.

One overarching challenge in prosecuting McCabe is his own history. McCabe is not a career criminal or the head of a violent street gang. He is a career FBI agent with no criminal history and a long career in public service who would argue that he would never intentionally lie because he knew the consequences of doing so could be severe. He already lost his job and his pension as a result of this investigation, and he has two children at home. Jurors would be hesitant to send him to prison for lying to a colleague, particularly given that no one was concretely harmed by his actions.

There also are problems with the evidence against McCabe. The first time McCabe allegedly lied was during a one-on-one conversation with Comey that was not recorded or witnessed by anyone else. It’s always a dicey proposition to expect a jury to convict someone when there is a “he said / he said” situation.

Also, while Comey is a credible witness, the president of the United States and his allies have engaged in a systemic campaign to smear him as “Lyin’ Comey.” McCabe’s legal team could argue that Comey is lying to advance his own agenda by portraying him as a Washington, D.C., operator who plays the media by leaking, writing books and making his case on television. Given the smear campaign against Comey, it’s easy to see why at least some jurors might doubt his credibility.

McCabe then allegedly lied about the leak to two internal investigators, telling them that he had “no idea” who the source of the leak was. McCabe claims that the question was an afterthought by the investigators and that he was confused about the article they were referring to.

This episode is stronger for the prosecutors. There were two investigators, not just one, and neither is a household name. The inspector general did not find McCabe’s excuses credible. But would at least one juror have a reasonable doubt that McCabe knowingly and willfully lied? Proof beyond a reasonable doubt that McCabe deliberately deceived the investigators is the heavy burden prosecutors would need to meet to convict him.

Perhaps the DOJ’s strongest evidence was a later interview by investigators that was recorded. In that interview, McCabe denied authorizing his aide to leak the story and denied being in contact with her during that time. These denials are provably false but once again the evidence is weakened by mitigating facts. In this case, McCabe called the inspector general four days after the interview, said he had been thinking about the questions, and corrected the record. That strongly undercuts a conclusion that he knowingly and willfully lied, and it will be hard for a jury to send him to prison for a false statement that he promptly corrected without being asked.

The last episode that prosecutors will draw on has a bizarrely self-referential aspect to it—that he lied when he said that he told the truth during the prior episodes. This was captured in a later recorded interview with investigators when he denied lying to Comey, said that he didn’t lie about authorizing the leak during the first interview with investigators, and indicated that the interview took place at the end of an unrelated meeting when he was pulled aside and asked one or two questions. If a juror believes that McCabe may have told the truth in the other three episodes, they’re unlikely to fault him for doing so again here.

All in all, this is not the level of proof that is typically required to convict someone of a felony and send them to prison. A typical false statement case is when someone who is being investigated for serious misdeeds lies about an important fact that is obviously false and would unquestionably be on the person’s mind, for example the case brought against former National Security Adviser Michael Flynn in which Flynn denied what he previoussaid in a recording. The case against McCabe is not that clear cut.

But the Achilles heel of the prosecution case would undoubtedly be Trump’s public campaign to attack McCabe, who he called a “major sleazebag,” and his wife, who unsuccessfully ran for Virginia state Senate in 2015 as a Democrat. Trump falsely claimed that McCabe gave “Hillary a pass” because his wife “received BIG DOLLARS from Clinton people for her campaign.”

McCabe’s team is sure to argue that the Trump administration set him up and is targeting him due to Trump’s vendetta against McCabe. It’s easy to see at least one out of 12 jurors in the D.C. jury believing him, given that Trump received only 4.1 percent of the vote from D.C. residents in 2016.

Trump’s attacks against McCabe will pose additional problems for prosecutors, who will have to fend off arguments from McCabe’s team that Trump has made it impossible for McCabe to receive a fair trial due to his many public smears of McCabe and his wife.

Given all of these hurdles, it is hard to see why the Justice Department appears determined to charge the case. Certainly, charging the former FBI deputy director could send a message that no one is above the law, but a failure to convict him would ultimately hurt the Department, as did their recent failure to convict former White House Counsel Gregory Craig of lying to the DOJ.

Typically, federal prosecutors are careful to charge cases that they can readily prove, which is why over 90 percent of federal felony prosecutions result in a conviction. It’s hard to see how this case could meet usual Justice Department standards, and that could explain why two prosecutors assigned to this case recently left the DOJ. If the Department presses forward, as they have reportedly decided to do, this could be the next embarrassing episode for the Trump Justice Department.