Jonathan Turley – At the turn of the last century, surrealists had a parlor game in Paris called “The Exquisite Corpse” where writers would create collective stories by writing lines without knowing what preceded them. The lines were often nonsensical like the line that gave the game its name: “Le cadavre exquis boira le vin nouveau. ” (“The exquisite corpse shall drink the new wine.”)

Within minutes of his firing, former FBI Deputy Director Andrew McCabe became such an exquisite corpse with various politicians adding lines to his story that seemed entirely disconnected to his story. Former FBI Director James Comey used McCabe to pitch his upcoming book while former Attorney General Eric Holder used him to effectively attack career staff at his former agency. The point of the game in both politics and literature is not to advance a coherent narrative but insert your own lines into a collective story.

Before turning to the new wine given to the exquisite corpse by various players in Washington, it would be useful to address a few misconceptions about the prior story of Andrew McCabe.

McCabe was fired at the recommendation of career staff members in the Office of Professional Responsibility and Inspector General’s office. He was previously forced to take a terminal leave by the current (and apolitical) director Andrew Wray after Wray reportedly read the still unreleased IG report findings.

Attorney General Jeff Sessions noted, in accepting the recommendation of the career staff, that “[b]oth the OIG and FBI OPR reports concluded that Mr. McCabe had made an unauthorized disclosure to the news media and lacked candor − including under oath − on multiple occasions.” Reports indicate that McCabe was viewed as misleading investigators on one of the core issues under investigation: the leaking of “sensitive information” about the investigation into the Clinton Foundation.

While it is not true that McCabe lost his roughly $2 million pension,  he was prevented from taking an early pension.  There are more serious concerns however for McCabe who is not necessarily out of the woods since he could be the subject of a criminal referral by the IG. McCabe alleged misconduct is strikingly similar to that of Michael Flynn, who was indicted by Special Counsel Robert Mueller for misleading investigators.

While McCabe insists that he had the authority to give non-public information to the media, Flynn also had authority to meet with Russian diplomats as part of the transition period. Both men were targeted not due to the underlying actions but allegedly lying about them.

Now to the contributions to the Exquisite Corpse:

The Media

Various media outlets portrayed McCabe as the victim of a type of presidential bloodlust, ignoring the fact that both the IG and OPR are composed of career officials insulated from such pressure. CNN Chris Cillizza asked “If you think firing McCabe was totally the right thing to do and fully justified, ask yourself this: Why was it done at 10 pm on a Friday night?”

Cillizza ignores the common practice of releasing such decisions on Friday nights by prior administrations. In 2010, for example, Obama’s Justice Department did a “Friday night dump” on allegations of professional misconduct by the authors of the “torture memos,” John Yoo and Jay Bybee.

High-ranking officials however overruled career staff who recommended findings of violations of professional standards. The report was released late Friday and simply referred to the former Justice officials as having “exercised poor judgment.” Figures like Cillizza also ignore that the McCabe recommendation was only given to Sessions a short time before the deadline and McCabe was allowed to make his case at Main Justice. Finally, as noted above, he did not lose his pension.

Politicians

In the news coverage, some media figures suggested that McCabe could be protected from any real pension loss. In a tweet from NBC News’ Andrea Mitchell, there was a suggestion that a “friendly member of Congress” hire McCabe briefly so he could “qualify for pension benefits by extending his service the extra days.”

Democratic members responded with offers for McCabe to negate the sanction proposed by career ethics staff. Rep. Mark Pocan (D-Wis.) offered to make McCabe his new “election security” expert and denounced the finding of an ethical violation as merely an effort to “discredit the FBI and undermine”

Special Counsel Robert Mueller’s investigation. Others like Rep. Jamie Raskin (D-Md.), Rep. Luis V. Gutierrez (D-Ill.), Rep. Seth Moulton (D-Mass.) reportedly made similar offers.  As I have previously discussed, it may not be this easy since McCabe was fired “for cause” and needs a “law enforcement” position.

James Comey

For James Comey, the firing controversy appeared an ideal time to pitch his forthcoming book, “A Higher Loyalty: Truth, Lies, and Leadership.” Comey is about to start a publicity tour in which like-minded citizens are asked to pony up roughly $100 for a few words and possible autograph with Comey. In response to an equally cringe-worthy tweet by President Donald Trump celebrating the termination of McCabe, Comey declared “Mr. President, the American people will hear my story very soon. And they can judge for themselves who is honorable and who is not.”

This apparent pitch for book sales was declared “a total burn” by supporters who relished the twitter war between the two. (While many of us recoiled when Trump displayed his own brand wine, water, and steaks in 2016 to prove he is a successful businessman, it now appears perfectly permissible to hawk your own book as proof of being an honorable man).

Eric Holder

Perhaps the most bitter wine given the Exquisite Corpse came at the hands of former Attorney General Eric Holder. Holder declared “[t]he timing appears cruel and a cave that compromised DOJ independence to please an increasingly erratic President who should’ve played no role here. This is dangerous.”

First and foremost, the “timing” was not of the choosing of the Administration. The career staff issued its recommendation shortly before the retirement of McCabe. After that date, they would lose effective jurisdiction over McCabe and the ability to punish him directly for what they saw as a major professional and ethical breach.

Holder’s attack also effectively threw the career staff under the bus. He ignored that they reached this recommendation on the merits and were seeking to enforce core Justice Department rules of ethics. Instead, he portrayed them as “caving” to pressure.

It could not be a more ironic, if exquisite, contribution. Holder was Attorney General when findings of professional misconduct in the torture memo were scuttled. It was also Holder who was rightfully voted in contempt of Congress for his own obstruction of a congressional investigation into the outrageous “Fast and Furious” operation. He was not prosecuted because the Obama Administration refused to submit the case to a grand jury.

Finally, it was Holder who (as Deputy Attorney General) was implicated in the pardon scandals of the Clinton Administration when Clinton pardoned one of the least worthy candidates in history: Democratic donor and international fugitive Marc Rich. Clinton at the same time pardon his own brother, Roger, in a corrupt and disgraceful use of federal authority to benefit his family.

Holder’s record was so controversial that, at his confirmation hearing, he expressed regret over the pardon scandal and promised not to cave to political pressure – a promise left unfulfilled in the view of many critics.

In fairness to Holder and the rest, the point of his parlor game is not coherence but creativity. However, for the public, there is an understandable frustration with these news stories being cycled through the salons of the Beltway.  There is also a danger to playing the Exquisite Corpse.  While these political surrealists are not making a particularly compelling story, they are building a case for the appointment of a second Special Counsel.

SF Source Jonathan Turley Mar 2018