When the January 6 Committee announced Monday afternoon that they were referring four criminal charges again former President Donald Trump to the Department of Justice (DOJ), Former Acting FBI Director and current CNN analyst Andrew McCabe took a much more cautious tone than most media pundits, and accidentally hinted at how the blatantly partisan and theatrical presentation the Committee opted for ended up hurting it in the end.
The segment began with CNN host Jake Tapper asking McCabe about the DOJ’s likely reaction to the referrals, since it was Tapper’s perception that the DOJ would typically jump at the chance to work on such cases, “but when it comes to this type of an investigation where somebody like Donald Trump or previously individuals like Hillary Clinton and others, that kind of level, that there's a – a wariness about getting involved. How do you think this referral is being received inside the Justice Department today?”
McCabe agreed with Tapper, saying “This is by all accounts a very mixed bag. This is a Pandora's box for the Justice Department for several reasons.”
McCabe then outlined the pros and cons of these referrals to the DOJ, the pros being the sheer amount of witness testimony and interview transcripts which could be used in building a case for indictment. But McCabe clearly saw this as a double-edged sword, referencing how the testimony publicly broadcast by the January 6 Committee during their hearings was only a small portion of the total evidence:
But it also presents huge problems, because many of the witnesses who might be essential to proving criminal charges resultant to some of these referrals may have also said things for, instance, under interview that were favorable to the president, or exculpatory to the president, or have other problems that might challenge their ability to testify completely and effectively as witnesses.
Wittingly or not, McCabe lent credence to one of the strongest accusations against the conduct of the January 6 Committee: that it was purposefully designed as a theatrical production intended to push a narrative more focused on short-term electoral gains in 2022 than any real long-term accountability.
About an hour after his initial remarks, McCabe appeared in a later segment to throw cold water on the probability of an indictment for insurrection – by far the juiciest referral the Committee had made, saying "there are all sorts of things built into a successful prosecution of insurrection that haven't really been addressed in this report, at least from the summary that we've seen today."
McCabe concluded by pointing out what will be lost to many in the upcoming chorus of pundits who have made a career of telling the public that “the walls are closing in” on Trump: the Committee’s standard to make a referral “is a far cry from the Department's standard to indict, which is we think there’s enough evidence to prove these charges beyond a reasonable doubt at trial, and to sustain a conviction on appeal.”
Although McCabe probably hasn't turned over a new leaf since his days overseeing the Russia probe, his caution should be telling.
This surprising dose of reality was brought to you by ClearChoice and Whole Foods Market. Their contact information is linked.
Click “expand” to see the relevant transcript.
CNN’s Attack On Democracy: The January 6th Hearings
12/19/22
2:21:23 PM ET
JAKE TAPPER: So Andy, let me ask you a question – uh, as former Acting Director of the FBI. I have an impression, and maybe it's wrong, that prosecutors like – uh, public corruption investigations where they can get this congressman or this mayor or this governor, but when it comes to this type of an investigation where somebody like Donald Trump or previously individuals like Hillary Clinton and others, that kind of level, that there's a – a wariness about getting involved. How do you think this referral is being received inside the Justice Department today?
ANDREW MCCABE: With exactly the sort of – uh, sentiment that you just described. This is by all accounts a very mixed bag. This is a Pandora's box for the Justice Department for several reasons. One, on the plus side, it is a bit of a road map. It's a resounding exclamation point at the end of the Committee's work. It comes with the results of over a thousand interviews – um, hundreds of people who – uh, people who were interviewed and who they have detailed – uh, uh – transcripts of their long interviews, and so that's great.
But it also presents huge problems, because many of the witnesses who might be essential to proving criminal charges resultant to some of these referrals may have also said things for, instance, under interview that were favorable to the president, or exculpatory to the president, or have other problems that might challenge their ability to testify completely and effectively as witnesses. So the Justice Department has to go so much further on every single one of these people who was touched and interviewed and seen by the Committee in any way. There is still a ton of work for them to do.
(…)
3:03:10 PM ET
TAPPER: Uh, let me start – uh, with you, Andy McCabe. Insurrection is a – is a rarely cited – uh, criminal offense, hard to prove, very rarely prosecuted. What is the Justice Department going to do with that referral?
MCCABE: Well, it's a – a rarely prosecuted – and thank God, right? We don't typically have attacks on the nation’s capitol. Um, the DOJ is going to look very closely at every piece of evidence they get as a part of this report and a part of this handoff. But there are all sorts of things built into a successful prosecution of insurrection that haven't really been addressed in this report, at least from the summary that we've seen today.
Let's remember, the standard that they appear to be using is they think there is sufficient evidence to make a referral. That is a far cry from the Department's standard to indict, which is we think there’s enough evidence to prove these charges beyond a reasonable doubt at trial, and to sustain a conviction on appeal. So the Department’s work is – is far more in-depth than what we’re reading today.
