Dershowitz: McCabe Should Have Recused Himself Immediately from Any Investigation Involving Hillary Clinton

Dershowitz: McCabe Should Have Recused Himself Immediately from Any Investigation Involving Hillary Clinton

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Monday on Fox News‏ Channel’s “Fox & Friends,” when asked about FBI Deputy Director Andrew McCabe’s wife receiving donations from Clinton ally Virginia Gov. Terry McAuliffe for her 2015 Virginia Senate campaign, Harvard law professor Alan Dershowitz said McCabe “should have recused himself immediately from any investigation involving Hillary Clinton.”Image result for Dershowitz: McCabe Should Have Recused Himself Immediately from Any Investigation Involving Hillary ClintonDershowitz said, “Well, first of all, everybody tells me who knows McCabe and has worked in the FBI that he is a very decent guy and was an excellent deputy director. Having said that he should have recused himself immediately from any investigation involving Hillary Clinton because of his wife’s connection to Hillary Clinton.”

He added, “When you are investigating a presidential candidate, whether it be Hillary Clinton or President Trump, you have to be Caesar’s wife, you have to be above reproach. You have to make sure not only there are no conflicts, but there are no perceived conflict, not only is there no bias but there is no perception of bias. He didn’t pass that test. He gave his enemies, the other side, ammunition to go after him. And I think that’s been a big problem with the Mueller investigation. Whether there is actual bias or not, we will only know in the end. But the perception of bias is there. And it should never be there when you are conducting an investigation of this importance involving people who so high in government or intend to be so high in government, candidates for president of the United States.”

The conservative nonpartisan watchdog group Judicial Watch has been relentless in its pursuit of FBI documents related to the investigation into Hillary Clinton’s unauthorized usage of a personal server during her tenure as secretary of State. The focus of their document requests has been the conduct of senior level FBI officials connected to the case.

Responding to innumerable Freedom of Information/Privacy Act (FOIPA) related requests from Judicial Watch, the FBI just released 76 pages of documents on The Vault, its public records site.Related imageMany of the documents are related to matters involving FBI Deputy Director Andrew G. McCabe’s brief oversight of the Clinton email investigation, as well as his wife, Dr. Jill McCabe, who ran unsuccessfully for a Virginia state Senate seat in 2015.

As has been widely reported, McCabe’s wife had been courted to compete for the seat by none other than Virginia’s sitting governor, Terry McAuliffe, who provided nearly $467,500 to her campaign via the political action committee that he spearheads.

But one particular notation within the document dump garnered undeserved attention. And some have fairly leapt at the opportunity to attach nefarious undertones to certain McCabe emails.

In question is a particular usage of the word “special,” employed by McCabe in reference to the Clinton email investigation while he was the assistant director in charge of the Washington field office, a post he held until he returned to FBI headquarters and become deputy director:

The Washington Field Office provided some personnel for the effort but it was referred to as a ‘special’ and I was not given any details about it.

Some have proclaimed this to be the “smoking gun” that proves that McCabe, and then Director James B. Comey afforded Clinton “special treatment.”Image result for Dershowitz: McCabe Should Have Recused Himself Immediately from Any Investigation Involving Hillary ClintonConservative firebrand Tomi Lahren referenced a report on the story at The Hill, and proclaimed “Well ain’t that some s–t” to her nearly 1 million Twitter followers.

FOX News host Sean Hannity touted the report as “explosive.”

Many of us who were career FBI agents, and versed in the bureau’s history, traditions and administrative processes and protocols, shook our heads in bemusement at the folly.

The FBI was founded in 1908, and owes much of its rich culture and rigid adherence to protocol to J. Edgar Hoover. Much of the FBI’s evident lexicon and vernacular are still stubbornly Hooveresque today.

The term “special” is a relic from the Hoover era (1924-1972). I have canvassed a number of retired agents and all associated it with a case classification. The designation of “special” has also been known to have been used interchangeably with the designation “major case.”

FBI administrative guidelines were once contained in massive three-ring binders of printed rules, and regulations known as the Manual of Administrative Operations and Procedures (MAOP). And while the voluminous notebook has since been replaced by a webpage, no colleague can seem to recall just where the designation of a “special” is clearly defined in printImage result for DershowitzCases so designated as “special” are usually considered to be investigations with considerable significance such as the crash of TWA Flight 800, the U.S.S. Cole bombing, the Eric Garner 2014 civil rights case, or the 2012 attacks on the U.S. consulate in Benghazi.

A “special” could also be deemed to be a case that is highly sensitive in nature a case involving investigative targets who are journalists, clergymen, judges or politicians.

“Specials” are not typically worked by an organic or homogenous squad in a field division. To this point, McCabe, in the email selection highlighted above, made mention that the Washington field office had “provided some personnel.”

This is consistent with how a “major case” investigation is assembled. Executive management determines what resources agent and material are needed, and then fashions an investigative team uniquely suited built, if you will  to meet the investigative challenges.

While these cases are typically worked within the division that the crime(s) occurred, certain unique ones may actually be investigated from headquarters. And a case involving a presidential candidate, during the homestretch of a contentious presidential campaign, whose “transgressions” occurred while she was secretary of State, would undoubtedly end up at FBI headquarters and be overseen by the “seventh floor;” where the FBI director and staff were located.

So that’s where the Clinton email investigation ultimately landed. And that’s why McCabe’s emails are relevant to a subsequent investigation into the potential politicization of the FBI.Image result for DershowitzIt certainly explains why some may have innocently misinterpreted the terminology used. During these most hyperpartisan of times, discovery of the word “special” in an FBI executive’s email about the Clinton case understandably raises red flags.

McCabe should have “conflicted” himself out of the Clinton email case. Though he was not in charge at the onset of the investigation, and ultimately recused himself from its oversight, it is fair to feel that he should have exercised better judgment.

Could he not have foreseen that his wife’s political activities and association with a former campaign chairman (McAuliffe) for both Bill’s (’96) and Hillary’s (’08) presidential campaigns would call into question the FBI’s impartiality and hard-earned apolitical reputation?

He shouldn’t have gone anywhere near the Clinton case. Or, he should’ve asked his wife to put her political aspirations on hold until the Clinton case had been adjudicated or closed.

This lapse in judgement just gives the perception of bias. And unfortunately, perception is reality.

Someone with knowledge of the Clinton email investigation related that those assigned to the squad were continually reminded by Comey not to refer to the Clinton case as a “special,” for the very reason that precipitated my writing of this column.Image result for DershowitzComey’s concern was shared by a number of senior executives, who were acutely aware that a term construct like “FBI special” might be innocently misinterpreted.

The more cynical worried it might be shrewdly wielded like a partisan cudgel to go after Clinton and severely damage the reputation of the FBI.

That is just what occurred but now you know better.

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