What We Know, and Don't Know, About the Firing of Andrew McCabe

By Quinta Jurecic and Benjamin Wittes, Lawfare

19 March 18

 

nyone who is confidently pronouncing on the merits of Andrew McCabe’s firing Friday night is venturing well beyond the realm of known facts.

We certainly understand the instinct to rally to McCabe’s defense at a time when the president is issuing triumphant tweets and White House Press Secretary Sarah Huckabee Sanders is declaring him a “bad actor.” McCabe’s dismissal comes as part of a broader purge of the senior FBI leadership and specifically targets a man who behaved with extraordinary courage and dignity in the wake of James Comey’s firing last year. It is only natural for those repulsed by the president’s broader interactions with the FBI to assume the worst.

But on McCabe’s innocence or culpability for some infraction that might justify his dismissal, we will reserve judgment—and we caution others to as well. It is simply not clear at this stage whether or not the record will support his dismissal.

At this stage, all that is available are a general, high-level picture of the process that played out—and the broadest sense of the parameters of the dispute between McCabe and the Justice Department leadership that led to his dismissal. The public has no details. It has no specific facts. We have the broad suggestion that McCabe was not truthful with Justice Department investigators but no sense of what he said or what the specific truth was.

Here’s what we know:

Attorney General Jeff Sessions announced McCabe’s firing in a statement issued at 10 p.m. Friday, just 26 hours before McCabe’s planned retirement:

After an extensive and fair investigation and according to Department of Justice procedure, the Department’s Office of the Inspector General (OIG) provided its report on allegations of misconduct by Andrew McCabe to the FBI’s Office of Professional Responsibility (OPR).

The FBI’s OPR then reviewed the report and underlying documents and issued a disciplinary proposal recommending the dismissal of Mr. McCabe. Both 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.

The FBI expects every employee to adhere to the highest standards of honesty, integrity, and accountability. As the OPR proposal stated, “all FBI employees know that lacking candor under oath results in dismissal and that our integrity is our brand.”

Pursuant to Department Order 1202, and based on the report of the Inspector General, the findings of the FBI Office of Professional Responsibility, and the recommendation of the Department’s senior career official, I have terminated the employment of Andrew McCabe effective immediately.

A representative for McCabe stated that the deputy director learned of his firing from the press release, though the Justice Department disputes this.

The FBI takes telling the truth extremely seriously: “lack of candor” from employees is a fireable offense—and people are fired for it. Moreover, it doesn’t take an outright lie to be dismissed. In one case, the bureau fired an agent after he initially gave an ambiguous statement to investigators as to how many times he had picked up his daughter from daycare in an FBI vehicle. The U.S. Court of Appeals for the Federal Circuit ruled against the agent when he appealed, finding that “lack of candor is established by showing that the FBI agent did not ‘respond fully and truthfully’ to the questions he was asked.”

Consider also that although Sessions made the ultimate call to fire McCabe, the public record shows that the process resulting in the FBI deputy director’s dismissal involved career Justice Department and FBI officials—rather than political appointees selected by President Trump—at crucial points along the way. To begin with, the charges against McCabe arose out of the broader Justice Department Office of Inspector General (OIG) investigation into the FBI’s handling of the Clinton email investigation. While the inspector general is appointed by the president, the current head of that office, Michael Horowitz, was appointed by President Barack Obama and is himself a former career Justice Department lawyer. As Jack Goldsmith has written, the inspector general has a great deal of statutory independence, which Horowitz has not hesitated to use: Most notably, he produced a highly critical 2012 report into the Justice Department’s “Fast and Furious” program. So a process that begins with Horowitz and his office carries a presumption of fairness and independence.

After investigating McCabe, Horowitz’s office provided a report on McCabe’s conduct to the FBI’s Office of Professional Responsibility (OPR), which investigates allegations of misconduct against bureau employees. This office is headed by career Justice Department official Candace Will, whom then-FBI Director Robert Mueller appointed to lead the OPR in 2004. According to Sessions, the Office of Professional Responsibility agreed with Horowitz’s assessment that McCabe “lacked candor” in speaking to internal investigators.

Finally, Sessions’s statement references “the recommendation of the Department’s senior career official” in advocating McCabe’s firing on the basis of the OIG and OPR determinations. (The official in question appears to be Associate Deputy Attorney General Scott Schools.)

So while Sessions made the decision to dismiss McCabe, career officials or otherwise independent actors were involved in conducting the investigation into the deputy director and recommending his dismissal on multiple levels.

As Sessions frames it, McCabe was dismissed for lacking candor when speaking to investigators on the matter of an “unauthorized disclosure to the news media.” McCabe denies these allegations. In a statement released to the media after his firing, McCabe wrote:

The investigation by the Justice Department's Office of Inspector General (OIG) has to be understood in the context of the attacks on my credibility. The investigation flows from my attempt to explain the FBI's involvement and my supervision of investigations involving Hillary Clinton. I was being portrayed in the media over and over as a political partisan, accused of closing down investigations under political pressure. The FBI was portrayed as caving under that pressure, and making decisions for political rather than law enforcement purposes. Nothing was further from the truth. In fact, this entire investigation stems from my efforts, fully authorized under FBI rules, to set the record straight on behalf of the Bureau, and to make clear that we were continuing an investigation that people in DOJ opposed.

The OIG investigation has focused on information I chose to share with a reporter through my public affairs officer and a legal counselor. As Deputy Director, I was one of only a few people who had the authority to do that. It was not a secret, it took place over several days, and others, including the Director, were aware of the interaction with the reporter. It was the type of exchange with the media that the Deputy Director oversees several times per week. In fact, it was the same type of work that I continued to do under Director Wray, at his request. The investigation subsequently focused on who I talked to, when I talked to them, and so forth. During these inquiries, I answered questions truthfully and as accurately as I could amidst the chaos that surrounded me. And when I thought my answers were misunderstood, I contacted investigators to correct them.

The full inspector general report on the Clinton email investigation, which will presumably include information on McCabe’s conduct, is to be released later this spring. Without seeing the report, it’s impossible to know whose story reflects the truth here—Sessions’s or McCabe’s. But at the end of the day, the record will either support McCabe’s dismissal or it will not. On the merits, we should have the discipline to wait and see.

There are, however, at least two features of the action against McCabe that warrant consternation, even if McCabe himself behaved badly enough to justify the sanction. The first is the timing, which is hard to understand. The only factor we can fathom that might justify it is the notion that if McCabe in fact had acted very badly, the window to punish him and thus make an important statement to the bureau workforce was closing.

But we are unaware of prior cases in which authorities rushed through the merits against a long-serving official in a naked and transparent effort to beat the clock of his retirement. Michael Bromwich, a former Justice Department inspector general who is representing McCabe, described the process as follows:

The investigation described in the Office of the Inspector General (OIG) report was cleaved off from the larger investigation of which it was a part, its completion expedited, and the disciplinary process completed in a little over a week. Mr. McCabe and his counsel were given limited access to a draft of the OIG report late last month, did not see the final report and the evidence on which it is based until a week ago, and were receiving relevant exculpatory evidence as recently as two days ago. We were given only four days to review a voluminous amount of relevant evidence, prepare a response, and make presentations to the Office of the Deputy Attorney General. With so much at stake, this process has fallen far short of what Mr. McCabe deserved.

Even allowing for a certain degree of lawyerly hyperbole in this account, the process described here seems highly irregular. McCabe, in his statement Friday, suggested one possible reason for the acceleration:

The release of this report was accelerated only after my testimony to the House Intelligence Committee revealed that I would corroborate former Director Comey's accounts of his discussions with the President. The OIG's focus on me and this report became a part of an unprecedented effort by the Administration, driven by the President himself, to remove me from my position, destroy my reputation, and possibly strip me of a pension that I worked 21 years to earn. The accelerated release of the report, and the punitive actions taken in response, make sense only when viewed through this lens.

In an interview with the New York Times, McCabe said directly that his dismissal “is part of an effort to discredit me as a witness.”

We will refrain from speculating on the reason for the rush to fire McCabe before his retirement. But it is peculiar. Why, one wonders, could the Justice Department not have handled his misconduct—if there was misconduct—the way it usually does: by detailing it in the inspector general’s report and noting that the subject, who has since retired, would otherwise be subject to disciplinary action?

The timing seems particularly irregular in light of a second peculiarity unique to McCabe’s case—one probably singular in the history of the American republic: Trump’s personal intervention in the matter and public demands for the man’s scalp. Trump has not been shy about McCabe. He has tormented him both in public and in private, and he publicly demanded his firing on multiple occasions:

Why didn't A.G. Sessions replace Acting FBI Director Andrew McCabe, a Comey friend who was in charge of Clinton investigation but got....

— Donald J. Trump (@realDonaldTrump) July 26, 2017

...big dollars ($700,000) for his wife's political run from Hillary Clinton and her representatives. Drain the Swamp!

— Donald J. Trump (@realDonaldTrump) July 26, 2017

FBI Deputy Director Andrew McCabe is racing the clock to retire with full benefits. 90 days to go?!!!

— Donald J. Trump (@realDonaldTrump) December 23, 2017

Trump developed an unwholesome conspiracy theory about McCabe’s wife, whom he told McCabe was a “loser.” He demanded to know whom McCabe had voted for. According to James Comey’s testimony before the Senate intelligence committee, Trump attempted to use what he believed to be McCabe’s corruption as some kind of a bargaining chip against Comey, informing the director that he had not brought up “the McCabe thing” because Comey had told him that McCabe was honorable.

While we cannot evaluate McCabe’s protestations of innocence at this stage, we can evaluate the truth of much of the rest of his statement:

For the last year and a half, my family and I have been the targets of an unrelenting assault on our reputation and my service to this country. Articles too numerous to count have leveled every sort of false, defamatory and degrading allegation against us. The President's tweets have amplified and exacerbated it all. He called for my firing. He called for me to be stripped of my pension after more than 20 years of service.

...

This attack on my credibility is one part of a larger effort not just to slander me personally, but to taint the FBI, law enforcement, and intelligence professionals more generally. It is part of this Administration's ongoing war on the FBI and the efforts of the Special Counsel investigation, which continue to this day. Their persistence in this campaign only highlights the importance of the Special Counsel's work.

Whether or not McCabe’s conduct has been above reproach, all of this is true. And to make matters worse, the firing occurred when Jeff Sessions’s own job is clearly on the line. Sessions, remember, was mulling McCabe’s firing even as Trump himself was mulling Sessions’s firing.

In other words, even if McCabe’s firing proves to be justified on the merits, the question is what could have possibly justified breaking it off from the larger probe and rushing it to completion and adjudication in time to beat the deadline of McCabe’s retirement—particularly in context of presidential demands for his removal and Trump’s broader assault on independent and apolitical law enforcement. 

Trump’s reaction to the firing only accentuates this point. He tweeted Friday night:

Andrew McCabe FIRED, a great day for the hard working men and women of the FBI - A great day for Democracy. Sanctimonious James Comey was his boss and made McCabe look like a choirboy. He knew all about the lies and corruption going on at the highest levels of the FBI!

— Donald J. Trump (@realDonaldTrump) March 17, 2018

In the end, such conduct necessarily taints the merits of the action against McCabe. Even if the Justice Department’s process proves pure as the driven snow and the case against McCabe proves compelling, who is going to believe—in the face of overt presidential demands for a corrupt Justice Department—that a Justice Department that gives the president what he wants is anything less than the lackey he asks for? The Justice Department career officials involved in this action know this. They know they are being made to look like lackeys, which may be reason to assume that they will have dotted every “i” and crossed every “t” in this instance—and that the facts against McCabe must be bad. But the politicization of law enforcement takes place either way—the latest and perhaps one of the most extreme instances of politicization in a chain of events that has embroiled the FBI in partisan politics since the beginning of the Clinton email investigation. If this action is the political attack that McCabe says it is, everyone involved is responsible for a terrible smear and a horrific abuse of a longtime public servant. But if the dismissal is absolutely justified and the public doesn’t believe that, the integrity of law enforcement suffers as well.

It is possible, after all, to politicize law enforcement by repeatedly propagating the lie that the law enforcement apparatus is already politicized.