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.
