I previously wrote that President Donald Trump has the curious skill of bringing out the worst in his critics. In the last two weeks, two of Trump’s greatest critics have not only faced their own investigations into leaks by the Inspector General (and McCabe is now the subject of a criminal referral for prosecution), they are increasingly at odds with one another. It is clear that either Comey or McCabe is offering a false account of leaks from the Justice Department. With McCabe now promising defamation lawsuits and the possibility of a prosecution, this could get much worse before it gets better.

Comey has declared that McCabe is simply not telling the truth when he said that Comey knew of his leaking information to the media. Indeed, he said that he ordered the investigation into finding the culprit.McCabe’s lawyer Michael Bromwich has insisted that people should not buy Comey’s “white knight” account and that he is offering a false narrative.In the meantime, McCabe is lashing out at this accusers, including the career officials of the Inspector General’s office who took the unprecedented step of calling for the former acting FBI Director to be fired. Bromwich says that McCabe will now sue the Trump administration for defamation and wrongful termination. Good luck with that. The Office of Professional Responsibility and the Inspector General’s office is composed of career officials who decided that McCabe should be fired. The IG found that McCabe leaked the information for his own personal interest and not the public interest. That hardly seems like a compelling basis for either wrongful termination or defamation unless Bromwich knows some major fact that that is not public. In the meantime, after raising over $500,000 on GoFundMe (a campaign that I criticized as being premature), Bromwich has announced that he is going back for more donations. The last campaign ended just before the IG disclosed that McCabe lied not once but four times — and before Comey himself effectively called McCabe a liar. Indeed, C0mey is invested in showing McCabe is a liar since he previously testified under oath that he never leaked or approved a leak as director.

Bromwich has morphed into Michael Cohen in throwing around threats, including President Trump, for “continuing slander.” His client is a former public official and now a public figure under New York Times v. Sullivan. In that case, Justice William Brennan explained how the First Amendment was meant to give the free press “breathing space” to play its critical role in our democratic society. The result was not to bar lawsuits by politicians like Trump against the media but rather to require a higher showing of proof. He must prove that the media had “actual malice” where it had actual knowledge of the falsity of a statement or showed reckless disregard whether it was true or false.

That is a high standard for McCabe to shoulder. Moreover, a politician’s opinion of your service (like Trump’s) is generally not actionable unless it can be shown to be a false assertion of fact.

McCabe may be able to tap the thoroughly gullible for more money but he may find that discovery in litigation is the last place he wants to be with both Trump and Comey asserting opposing views of his conduct.

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