A Worthwhile Read on the McCabe Firing
Lawfare provides a balanced piece on the firing of Andrew McCabe.
Via Lawfare (What We Know, and Don’t Know, About the Firing of Andrew McCabe) comes some caution in regards to McCabe’s firing:
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.
This is accurate (and fair). It is wholly possible that McCabe deserved sanctions for his actions–although whether being fired on the cusp of retirement may not have been the appropriate punishment. We really don’t know for sure, so he cannot be seen as a blameless martyr at this moment in time (nor, however, can he be assumed to have deserve any sanctions whatsoever–we really do not know).
Still, the following is needed in considering how to judge the situation:
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.
I think it is fair to note that not all of the actors here are Trump appointees. That does add credibility that there may be something to the charges.
However, the following needs to be noted:
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.
That last sentence is rather important. To be honest, given the president’s behavior, and that of one of his attorney’s (as I have noted in a previous post) it is not unreasonable to wonder as to Sessions’ motivations. Still, it is quite possible that the final report will indicate that the firing was justifiable. However, it does not appear that full due process was undertaken, as McCabe and his attorneys were not given, it would seem, adequate time to respond.
The following is hard to dismiss:
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.
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.
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.
The politics of this situation clearly cast significant doubt on the notion that Sessions’ behavior should be seen as normal.
Let me note two Trump tweets.
First, from December 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
This, to me, is pretty stunning. At best it is a petty, petty tweet given that the tweet is from the sitting President of the United States. At worst, the question mark suggests a threat that was carried out by Jeff Sessions yesterday.
The second is weird gloating by, again, the President of the United States:
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
How does anyone defend this behavior?
(Thanks to OTB commenter James Pearce for noting the Lawfare piece earlier today).