BY PROSECUTING AND HAVING THE CASE TOSSED...:

Even if one doesn't believe, as McCabe contends, that he was merely confused when he made the false statements, the intense pressure of the situation is mitigating. Moreover, McCabe did correct the record following his misstatements to the inspector general; a few days after the interview in question, he called up investigators and said he had been reflecting on his statement and believed he had erred.

There's another problem with prosecuting McCabe. Justice Department policy dictates that prosecutors should bring a case only if they believe not only that the person is guilty of an offense but that "the admissible evidence will probably be sufficient to obtain and sustain a conviction." Goldman's story makes clear that the case here faces some significant evidentiary problems. The main one is named Lisa Page:

Among the witnesses called before the grand jury was Lisa Page, who worked closely for Mr. McCabe at the F.B.I. as his special counsel and later gained notoriety for text messages she exchanged with another F.B.I. official disparaging Mr. Trump. Mr. McCabe had authorized Ms. Page to speak with the Wall Street Journal reporter, but he told investigators on two occasions that he did not remember doing so. He later corrected himself.

Ms. Page told the grand jury that Mr. McCabe had no motive to lie because he was authorized as the deputy F.B.I. director to share the information with the newspaper. Her assertion could be damaging for prosecutors, who would have to prove that Mr. McCabe knowingly and intentionally lied to investigators.

It is, of course, possible that there is evidence that is not public yet. But rereading the inspector general report this morning and thinking about McCabe's likely defense (that he was confused under the intense pressure of the circumstances), Page's likely testimony, and the mitigating factors he will surely present, I find it hard to imagine a probability of conviction. To prosecute a case under these circumstances, in fact, seems so bizarre that you have to at least entertain the possibility that the explanation for the decision lies in something other than the merits of the case against the man.

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