On the firing of Andrew McCabe
The Deputy Director of the FBI, Andy McCabe was fired by Attorney General Jeff Sessions on Friday evening, 16 March, 26 hours before McCabe was due to retire with a full pension. While the public has no way to judge whether the cause for dismissal stipulated by Sessions was justified, the timing of this decision and the broader context to it, suggest that even if McCabe was guilty of some misconduct, this whole episode reeks of the extreme Trumpian politicization of the institutions of justice in the USA.
Sessions statement indicated:
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.
The public has no way to judge the validity or justice of this statement. The reports on which the decision was taken are not public and won’t be for some time. McCabe may well have committed misconduct deserving of dismissal. The FBI ostensibly takes telling the truth extremely seriously: “lack of candor” from employees is a fireable offense—and agents have been fired for it. It also needs to be noted that career Justice Department and FBI officials – rather than political appointees selected by Trump – ran the investigation against McCabe. 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. The current head of that office, Michael Horowitz, was an Obama appointee and is himself a former career Justice Department lawyer. As Jack Goldsmith has written, the inspector general has statutory independence, and Horowitz used that independence in his highly critical 2012 report into the Justice Department’s “Fast and Furious” program. So this investigation into McCabe should not be dismissed out of hand as politically motivated. We should reserve judgment on that.
A representative for McCabe stated that the deputy director learned of his firing from the press release, though the Justice Department disputes this. 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 his 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 report on the Clinton email investigation is to be released later this spring. Without seeing the report, it’s impossible to know whose story reflects the truth here. But even if McCabe’s conduct was bad enough to warrant dismissal, the timing and the expedited nature of the process is rancid in its overt political overtones.
Michael Bromwich, a former Justice Department inspector general who is representing McCabe, described how the process against McCabe was uniquely prejudicial. As he describes it:
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.
Now Bromwich may well be exaggerating to a degree: lawyers do. But the haste with which the proceedings against McCabe were conducted do seem to fit with McCabe’s own perspective on the events provided in his statement after his firing:
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.
Moreover, 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.”
The irregular timing also has to be seen in the broader context of McCabe being in Trump’s crosshairs since the firing of FBI director James Comey. Trump has publicly demanded his firing on multiple occasions, he developed a 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. Trump has relentlessly attacked McCabe’s integrity and reputation as part of his attacks on the FBI and DOJ. And to make matters worse, the firing occurred when Jeff Sessions’s own job is clearly on the line. Sessions may well be serving-up McCabe in an effort to appease Trump.
Even if the case against McCabe justifies his dismissal, 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? Regardless if McCabe committed a fireable offense or this is a political attack on McCabe the politicization of law enforcement takes place regardless. It is the consequence of the relentless attempts to politicize the federal justice system that have been a hallmark of the Trump era.