Andrew McCabe wants grant of immunity in exchange for congressional testimony on handling of Hillary email investigation

Already the subject of a criminal referral by the DOJ inspector general, Andrew McCabe is asking for an official grant of immunity in exchange for testifying before the Senate Judiciary Committee, headed by Senator Chuck Grassley.  The alterative is that he takes the Fifth Amendment when quizzed, a very bad look for the former number-two official in the FBI.  Yet that is what it looks like will happen.  I can only hope that this would take place in open session, so that the television cameras can capture the spectacle.

Although in a court of law, no implication of criminal guilt may be drawn from a Fifth Amendment plea, the court of public opinion is another matter entirely.  It would be tantamount to an admission that yes, the fix was in when James Comey told the nation that no "reasonable" prosecutor would bring a case against her for violations of national security laws regarding classified documents.

Professor Jonathan Turley writes that it would be "insane" for the committee to make such a grant:

McCabe's counsel Michael Bromwich wrote the Committee that "Under the terms of such a grant of use immunity, no testimony or other information provided by Mr. McCabe could be used against him in a criminal case."

The demand for immunity comes as Washington braces for the release of the Inspector General's report on the conduct of McCabe, James Comey, and other high-ranking officials during the Clinton investigation.  I do not blame Bromwich for seeking immunity when his client could well be hit not just with a damning IG report but an actual criminal charge under 18 U.S.C. 1001.  However, the Committee would be insane to grant it.  This is precisely what happened with Oliver North.  North was in May 1989 convicted of three charges: accepting an illegal gratuity; aiding and abetting in the obstruction of a congressional inquiry; and destruction of documents.  He was sentenced to a three-year suspended prison term and two years probation, $150,000 in fines and 1,200 hours community service.  However, an appellate court on July 20, 1990, vacated his conviction due to the influence of his immunized testimony before Congress on witnesses.  The special prosecutor, Lawrence Walsh, had tried to prevent his investigators and prosecutors from watching the congressional hearings but these extraordinary efforts were insufficient.

The last thing that the Republicans would want is to create a barrier to McCabe's prosecution.  The answer therefore is likely to be "no."

Moreover, a grant of immunity would require a two-thirds vote of the Senate Judiciary Committee, which might well be a problem if Democrat members fear what McCabe might say if free to speak, and GOP members fear him getting off scot-free for what might be serious crimes in the course of protecting the Democrat presidential nominee.

Also at issue are some emails that McCabe claims he sent to James Comey about talking to the media, a point on which McCabe's and Comey's testimonies differ.  McCabe claimed that his conduct was taken with the full knowledge of Comey, and Comey denies this.  But according to McCabe's lawyer, the emails are in the possession of the FBI, and McCabe has signed a non-disclosure agreement with the FBI that prevents him from releasing the emails.

Sundance of Conservative Tree House sorts through all the details, including the back-and-forth correspondence between McCabe's lawyer and Senator Grassley.

Already the subject of a criminal referral by the DOJ inspector general, Andrew McCabe is asking for an official grant of immunity in exchange for testifying before the Senate Judiciary Committee, headed by Senator Chuck Grassley.  The alterative is that he takes the Fifth Amendment when quizzed, a very bad look for the former number-two official in the FBI.  Yet that is what it looks like will happen.  I can only hope that this would take place in open session, so that the television cameras can capture the spectacle.

Although in a court of law, no implication of criminal guilt may be drawn from a Fifth Amendment plea, the court of public opinion is another matter entirely.  It would be tantamount to an admission that yes, the fix was in when James Comey told the nation that no "reasonable" prosecutor would bring a case against her for violations of national security laws regarding classified documents.

Professor Jonathan Turley writes that it would be "insane" for the committee to make such a grant:

McCabe's counsel Michael Bromwich wrote the Committee that "Under the terms of such a grant of use immunity, no testimony or other information provided by Mr. McCabe could be used against him in a criminal case."

The demand for immunity comes as Washington braces for the release of the Inspector General's report on the conduct of McCabe, James Comey, and other high-ranking officials during the Clinton investigation.  I do not blame Bromwich for seeking immunity when his client could well be hit not just with a damning IG report but an actual criminal charge under 18 U.S.C. 1001.  However, the Committee would be insane to grant it.  This is precisely what happened with Oliver North.  North was in May 1989 convicted of three charges: accepting an illegal gratuity; aiding and abetting in the obstruction of a congressional inquiry; and destruction of documents.  He was sentenced to a three-year suspended prison term and two years probation, $150,000 in fines and 1,200 hours community service.  However, an appellate court on July 20, 1990, vacated his conviction due to the influence of his immunized testimony before Congress on witnesses.  The special prosecutor, Lawrence Walsh, had tried to prevent his investigators and prosecutors from watching the congressional hearings but these extraordinary efforts were insufficient.

The last thing that the Republicans would want is to create a barrier to McCabe's prosecution.  The answer therefore is likely to be "no."

Moreover, a grant of immunity would require a two-thirds vote of the Senate Judiciary Committee, which might well be a problem if Democrat members fear what McCabe might say if free to speak, and GOP members fear him getting off scot-free for what might be serious crimes in the course of protecting the Democrat presidential nominee.

Also at issue are some emails that McCabe claims he sent to James Comey about talking to the media, a point on which McCabe's and Comey's testimonies differ.  McCabe claimed that his conduct was taken with the full knowledge of Comey, and Comey denies this.  But according to McCabe's lawyer, the emails are in the possession of the FBI, and McCabe has signed a non-disclosure agreement with the FBI that prevents him from releasing the emails.

Sundance of Conservative Tree House sorts through all the details, including the back-and-forth correspondence between McCabe's lawyer and Senator Grassley.