[Ed. – In other words, if Trump can’t be charged with obstruction in the absence of an underlying crime, how can McCabe be charged with lying if there was no crime to lie about? His argument here is that since his job involved speaking to the media on the FBI’s behalf, including on classified subjects, he can’t be charged with a crime of “leaking.” So nothing he said about it later would constitute “obstruction.” Of course, that logic would certainly seem to extend to Michael Flynn, in whose case there was no underlying crime to lie about either. Italics in original.]
Clever. Not entirely bulletproof legally, but politically this argument from Andrew McCabe’s legal team is brilliant. If Donald Trump didn’t get prosecuted over obstruction detailed in the Mueller report because there was no underlying crime, as Josh Gerstein reports on their coming argument, how can William Barr’s Department of Justice go after him?
But wait, you might say, leaking itself is an illegal act, not just the lying about it. … However, McCabe’s position as deputy director of the FBI allowed him to brief the media on the record or on background, a point McCabe has repeatedly raised to defend himself in public debate.