Andrew McCabe

The memo alleging major missteps by the FBI and Justice Department will not likely result in criminal charges, but a former federal prosecutor says that doesn’t mean the issues at stake are any less serious and he says law enforcement officials have done a terrible job explaining the Russia investigation to the American people.

On Friday, the memo from Republicans on the House Intelligence Committee accused FBI and Justice Department officials of obtaining a Foreign Intelligence Surveillance, or FISA, warrant on American Carter Page based on a discredited dossier.  They also allege officials failed to tell the FISA judge that the contents of the dossier had not been verified and that it had been paid for by Hillary Clinton’s campaign and the Democratic National Committee.

The GOP memo also quotes former FBI Deputy Director Andrew McCabe as testifying the warrant never would have been issues without presenting the dossier as probable cause.

But is any of this likely to result in criminal prosecution?

“I doubt that they’ve committed a criminal offense.  More likely, what they’ve done is violate court rules and norms for the Justice Department’s performance when it refers evidence to the court and asks for use of the court’s processes like warrants,” said Andrew C. McCarthy, a former federal prosecutor and a contributing editor at National Review.

McCarthy says prosecution in these cases is unlikely unless it rises to “an egregious level” of obstructing or perverting justice.  But he says these allegations are still serious and could carry some major repercussions.

“It’s a very serious matter and can be grist for all kinds of administrative discipline and even impeachment,” said McCarthy.

He says it’s the difference between abuse of power and criminal conduct.

“There are some varieties of abuse of power that we address in the criminal law but there are many we don’t.  That doesn’t mean that the abuses are less serious than crimes,” said McCarthy.

One of McCarthy’s greatest frustrations lies in what he sees as the FBI and Justice Department needlessly confusing the American people on what the Russia investigation led by Robert Mueller is all about.

McCarthy does not believe that the memo is grounds for scrapping the Mueller probe, but he says it’s understandable why people are reaching that conclusion.

“It’s the fault of the FBI and the Justice Department that they’re taking that position,” said McCarthy, who says the government announced a counterintelligence investigation into Russia’s involvement in the 2016 campaign and that part of the probe would look at any Trump campaign officials who had improper ties to the Kremlin.

“That was a completely inappropriate thing to say publicly because the FBI and the Justice Department should never comment on whether investigations are going on and if they are going on what the focus on them is.  The government’s not supposed to talk about investigations,” said McCarthy.

“The real problem is that by doing it the way they did it, they conflated in the public mind the overarching Mueller mission…with this whole idea of a Trump-Russian collusion angle.

“And since in the public mind those two things are the same, then it’s perfectly understandable that people would say that if the Trump-Russia collusion angle is a complete fabrication and that a lot of it was built on this dossier, that Mueller’s investigation is illegitimate.  I don’t think that’s true but I can see how they feel that way.

They feel that way because of what the FBI and Justice Department said about this investigation, which was very misleading and very wrong,” said McCarthy.

The Democrats’ counter-memo is likely to be the next development in this political drama.  But McCarthy remains skeptical of their motivation in this investigation.

“What I’m afraid of is that it’ll just be a partisan political attack.  The reason I say that is not just because they’re Democrats and that’s what they do, although I must say on some level I do believe that.

“The other reason I’m fearful is that they were invited by the majority of the intelligence committee to make additions or changes to the [GOP] memo.  They really didn’t want to cooperate in it.  I think they just wanted to attack it in a partisan way,” said McCarthy.

McCarthy says there are only two possible reasons for Democrats not to cooperate and try to add the context to the memo that they claim is sorely missing.

“The fact they didn’t do that suggests to me either that it doesn’t exist or they would rather package it in a way that was more of a partisan attack than an effort to get out one document that more fully explained what we’re dealing with,” said McCarthy.

He also cautions Americans following the story to be prepared for frustrations at how difficult it is to make more information public, noting that intelligence investigations are necessarily secretive so as not to damage national security and intelligence interests.

In addition to the response from Democrats, McCarthy says the significance of the memo and more will depend on exactly the role the dossier played in securing the FISA warrant.

“If they had other information that would have supported the issuance of a FISA warrant, then the use of the Steele dossier is much less important.

“But if the Steele dossier was critical to getting the warrant issued, that means the government brought to a court information that was unverified and uncorroborated to get surveillance authority – in essence to spy on one presidential campaign with what turns out to be opposition research that was provided to the government by the other presidential campaign,” said McCarthy.