McCabe is not being prosecuted for perjury and nei

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The key element of candor cases is that the standard is higher for FBI employees than for the typical government official. The bar for perjury for example, is extremely high and requires prosecutors to prove a defendant’s state of mind. That’s very difficult, which is why few public officials are ever prosecuted for it—even in criminal investigations, it’s typical to charge obstruction rather than perjury. But FBI officials can’t simply avoid lying under oath—even omitting the truth could get them fired.

That higher standard helps shed light on a remark former FBI agent Ali Soufan made to me last week, when he told me that McCabe had been “fired for lack of candor by people who have no candor.” In his confirmation hearing in January 2017, Sessions told then-Minnesota Senator Al Franken that “I didn’t have––did not have communications with the Russians.”

After it was revealed that Sessions did in fact meet with Russian Ambassador Sergey Kislyak during the campaign, Sessions’s spokesperson insisted that he met with Kislyak “in his capacity as a member of the armed services panel rather than in his role as a Trump campaign surrogate.” McCabe oversaw a perjury investigation of Sessions after his testimony, ABC News reported on Wednesday, but such an investigation was unlikely to lead to prosecution.

As John Q. Barrett, a law professor at St. Johns University, previously told me, to “prove a perjury case requires not only evidence of knowing falsity but evidence of intent.”

Congressional testimony is often an exercise in avoiding giving damaging answers to direct questions, so perhaps it’s not so surprising that, in the middle of a controversy over whether or not the Russian government sought to aid the campaign of the president who appointed him, Sessions would avoid disclosing his meeting with Kislyak.

But the same kind of dissembling in an inspector general’s investigation—I met with him but I didn’t meet with him—might get an FBI agent fired for a lack of candor.

Fortunately for Sessions, as the attorney general, he’s held to a different standard.

https://www.theatlantic.com/politics/archive/...or/556262/

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