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. , 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  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. , 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 , 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 .)

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 . 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 “.” He demanded to know . According to James Comey’s , 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:

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:

How does anyone defend this behavior?

(Thanks to OTB commenter James Pearce for noting the Lawfare piece earlier today).

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FILED UNDER: Donald Trump, US Politics
Steven L. Taylor
About Steven L. Taylor
Steven L. Taylor is a Professor of Political Science and a College of Arts and Sciences Dean. His main areas of expertise include parties, elections, and the institutional design of democracies. His most recent book is the co-authored A Different Democracy: American Government in a 31-Country Perspective. He earned his Ph.D. from the University of Texas and his BA from the University of California, Irvine. He has been blogging since 2003 (originally at the now defunct Poliblog). Follow Steven on Twitter

Comments

  1. Mister Bluster says:

    How does anyone defend this behavior?

    Just ask Bunge, JKB, Johnny Telephone and the other apologists for
    REPUBLICAN President Pork Chop Pud. They do it all the time.

    10
  2. Mikey says:

    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?

    Here’s another thing: FBI employees who are eligible to retire are generally allowed to retire even after having been proposed for dismissal by the OPR.

    I still find it difficult to believe McCabe was deliberately not forthcoming, but even if he was, it doesn’t warrant how the process was applied to him. It absolutely stinks of politics.

    Rep. Adam Schiff put it pretty well:

    In the absence of the IG report, it’s impossible to evaluate the merits of this harsh treatment of a 21-year FBI professional. That it comes after the President urged the DOJ to deprive McCabe of his pension, and after his testimony, gives the action an odious taint.

    12
  3. michael reynolds says:

    I agree that McCabe may well merit dismissal, though I doubt it and in the absence of the actual IG report, the rational thing is to treat it with great suspicion.

    What is not in doubt is that nothing justifies firing a man at 10 PM on a Friday in a desperate ploy to deny him his pension. That is contemptible.

    26
  4. mattb says:

    Here’s my attempt at an IB4B (In Before Bunge):

    Steven,

    Given your overall hackish approach to all things Trump, it pleasantly surprises me that you (or anyone at this pathetic little echo chamber) are willing to consider that there might be some basis for the firing of McCabe.

    If this was any other place, I might think there was a glimmer of hope that my deep, pragmatic thoughts are finally rubbing off on you.

    Of course, I know better than to expect a change of heart due to how much Trump Derangement has infected your soul. And you didn’t disappoint:

    How does anyone defend this behavior?

    As I knew you would, you resorted to typical bush leagues moves by actually citing one of the President’s tweets against him. Clearly you have no self control or insight for that matter (once again proving that all it takes to get a PhD in this country is the willingness to mindlessly reproduce the shallowest of liberal thoughts).

    I’m not defend Trumps behavior – but let me remind you that this the behavior that THE AMERICAN PEOPLE voted for. I think it’s perfectly understandable, if you understand Trump, nae, The American People (the real, nationalistic [white and the ok brown ones] American People abandoned by the Democrats) like I do. If only you were as smart as me, you would understand that they pay attention to Trumps intent, not his words or the context of his words, or other words with words upon words. And that intent is what people voted for, even though I think it’s not the best, but it’s better than the alternative, which has ignored the will of the people for so long in the service of globalist, intellectual, multicultural, never-held-accountable folks like you who destroyed this country and forced people to vote for Trump!

    In closing, you’re the hackiest of hacks (not counting that Hack Doug and that Hack James).

    May god have mercy on soul and did I mention I’m way smarter than you are and why has no one asked me to write here?,

    Bunge

    20
  5. @michael reynolds:

    I agree that McCabe may well merit dismissal, though I doubt it and in the absence of the actual IG report, the rational thing is to treat it with great suspicion.

    What is not in doubt is that nothing justifies firing a man at 10 PM on a Friday in a desperate ploy to deny him his pension. That is contemptible.

    To be clear–I totally agree.

    15
  6. mattb says:

    Joking aside…

    I think the key takeaways from Jurecic and Wittes is that regardless of the process, Trump’s non-traditional (and undisciplined) approach to “addressing the public” again undermines the strategic goals of his administration.

    For as much as some may argue that “there’s nothing wrong with being non-traditional,” the reality remains that there is a reason for tradition (and it’s not simply to appease the deep-state bureaucracy). And like I you and the folks at Lawfaire, I believe that, in the same way his comments around the travel ban came back to bite him, his McCabe tweets are going to have similar results.

    1
  7. Lit3Bolt says:

    How soon until Sessions is fired by Trump for his egregious misconduct in violating his recusal and firing a senior level FBI employee hours before his retirement?

    Both Comey and McCabe have been fired for their “mishandling” of the Clinton email probe. Does anyone seriously believe this fig leaf legal excuse?

    7
  8. Gustopher says:

    With Trump’s interference, hasn’t he spoiled the case against McCabe?

    I know Obama was chastised for statements involving a case of military discipline, and the result was a much more lenient sentence. Are there similar concerns and rules for civil servants?

    2
  9. James Pearce says:

    @Mikey:

    Rep. Adam Schiff put it pretty well

    Too bad Twitter doesn’t work so well for him. (I have come to really, really dislike Rep. Schiff. He always looks surprised when people want to talk to him. I feel like Hrothgar would feel if he asked the Geats to send Beowulf and they sent Pee Wee Herman instead.)

    I’m waiting for better information on this pension business. I’m a little skeptical that he’s going to lose it and I think there’s some confusion being deliberately, and unknowingly, sown on that score.

    1
  10. Mikey says:

    @James Pearce: I don’t have a particularly strong opinion of Schiff one way or the other, but he’s right on this.

    I’m waiting for better information on this pension business. I’m a little skeptical that he’s going to lose it and I think there’s some confusion being deliberately, and unknowingly, sown on that score.

    McCabe was dismissed before eligibility. That generally means if he gets it at all, it will be less than he would have gotten (he’d get the “standard” FERS pension without the additions federal law enforcement gets) and he won’t start drawing it for several years (possibly age 57 but also possibly 62 depending on the rule he falls under).

    And even that’s not wholly relevant to the big picture, which is the President pushed for McCabe’s firing specifically to deny McCabe the pension. Even if that despicable goal is not fully realized, the intent was certainly there.

    10
  11. wr says:

    @James Pearce: Schiff used to be my congressman. I only met him once, on an outreach to Writers Guild members, but he struck me as smart, honest and caring. I was hoping the Feinstein would decline to run so he’d go after her seat — he doesn’t seem to be the type to primary a party stalwart, despite how much she needs it. I suppose you think he’s a wimp because he doesn’t swing an axe at Trump — but if you actually listened to him (I know — booooooring) you might see how good he is with the knife.

    8
  12. Charon says:

    McCabe has lawyered up with a heavy hitter …

    https://twitter.com/nycsouthpaw/status/975057945540091904

    Above link is to lawyer’s statement

    https://en.wikipedia.org/wiki/Michael_R._Bromwich

    Bromwich was a federal prosecutor in the U.S. Attorney’s Office for the Southern District of New York and served as associate counsel in the Office of Independent Counsel for Iran-Contra. Bromwich was one of three lawyers for the government in the case of United States v. Oliver L. North.[1]

    He was an Inspector General for the Department of Justice from 1994 to 1999. He headed an investigation into the FBI laboratory; the investigation into the bombing of Pan Am Flight 103; the FBI’s conduct regarding Aldrich Ames; the handling of classified information by the FBI and the Department of Justice in the campaign finance investigation; the alleged deception of a congressional delegation by high-ranking officials of the Immigration and Naturalization Service; and the Justice Department’s role in the CIA crack cocaine controversy

    2
  13. MBunge says:

    @mattb:

    Dude, that is literally the worst attempt at imitating anyone that has ever been attempted!

    As for the article, that’s a pretty fair handling of the whole mess. The only oversight is that while correctly noting Trump’s behavior could taint an otherwise legitimate action, it willfully ignores that the same is true in Trump’s favor.

    Andrew McCabe has been subjected to less than 1% of the unsubstatiated and vicious allegations that have been leveled against Donald Trump. Someone took to the pages of the New York Times and explicitly advocated for a coup to remove Trump from office. The response to that was a general shrug and commentary about how “it wouldn’t work.” Virtually the entire American political establishment has spent over a year advancing an evidence-free theory that Trump and his campaign colluded with a foreign government to influence the 2016 election. And it goes beyond personal attacks to flatly schizophrenic nonsense on policy, like people who said Trump would never get North Korea to the negotiating table then criticizing him for undermining the talks they said would never happen in the first place.

    Of course, if the overall criticism of Trump were more like that Lawfare article, it wouldn’t be a problem. But since the response to being beaten by Trump has largely been to triple-down on the foolishness, stupidity, arrogance, degeneracy, and incompetence that enabled Trump’s victory, the problem has only been getting worse.

    Mike

    1
  14. James Pearce says:

    @Mikey:

    That generally means if he gets it at all, it will be less than he would have gotten (he’d get the “standard” FERS pension without the additions federal law enforcement gets) and he won’t start drawing it for several years (possibly age 57 but also possibly 62 depending on the rule he falls under).

    I feel like this information is being…obscured.

    Don’t get me wrong. I don’t support McCabe’s firing, even if the Office of Professional Responsibility recommended it. He was already out the door so the punitive measures of a formal firing seem excessive. It sure sends a message, though, doesn’t it? It is not, I think we can agree, a good one.

    @wr:

    he struck me as smart, honest and caring

    What if we need evil, wicked, mean, and nasty though? I agree with everything Schiff says, but Trump’s not scared of him. I bet Trump laughs at him when he shows up on TV, probably has a cute little name for him and everything too.

    1
  15. Davebo says:

    @MBunge:

    foolishness, stupidity, arrogance, degeneracy, and incompetence

    Degeneracy was a nice touch Mikey but sadly you’d already blown it with the “vicious allegations” rant but it was hilarious!

    3
  16. mattb says:

    @James Pearce:

    What if we need evil, wicked, mean, and nasty though?

    Then we have deeply, deeply screwed up. Like pack up the shop and call the American experiment over.

    I don’t want to be part of that country any more.

    9
  17. Lit3Bolt says:

    @James Pearce:

    So you’re arguing for Brutus and Cassius now? If you are willing to do ANYTHING to save the Republic, you also are willing to risk its very existence. This shit is like, 2000 years old man.

    3
  18. Anonne says:

    It does not matter that these are career FBI professionals doing this hack job.

    If it is not abundantly clear, everyone knows that if they don’t do what Trump wants, they’re next. This is why Rod Rosenstein appointed Mueller at all: it gave him a measure of protection against the thugs by tying Trump’s hands for at least a little while. At least, that is my opinion of why Rosenstein bothered to appoint the Special Counsel.

  19. Mister Bluster says:

    like people who said Trump would never get North Korea to the negotiating table
    When did Pumpkinhead do that???

    3
  20. Just 'nutha ig'nint cracker says:

    @Mister Bluster: Well, it hasn’t happened yet, and he’s backpedaled from his first position in the manner that I predicted by asking for the beginnings of NK denuclearization as a condition for the talks to begin, but give Bunge a break, it’s hard to make sense out of what he has to work with and the limits of his understanding of anything at all.

  21. mike shupp says:

    How does anyone defend this behavior?

    Hey, they’re going to force school kids to read all about this stuff 2000 years from now. We’ve got ringside seats! And soon we’ll surely see a horse installed as Co-President! (A whole horse, not just last half.) Before we all turn gray or bald, they’ll be making movies (in Chinese and Korean!) and we old timers will get to bore all our grandkids with stories about “How it was in Washington when I was just your age.”

    2
  22. James Pearce says:

    @mattb:

    Then we have deeply, deeply screwed up.

    Well…haven’t we? At what point do we stop looking at Trump as something bad that happened to us and start looking at Trump with some notion of responsibility?

    Not blame–we all know who to blame– but responsibility.

    @Lit3Bolt:

    So you’re arguing for Brutus and Cassius now?

    No, no. Just saying, as always, the Dems should be made of sterner stuff.

  23. Mikey says:

    @James Pearce:

    I feel like this information is being…obscured.

    It’s out there, it’s just hard to figure out where McCabe falls. Federal law enforcement has a different set of pension rules from other federal employees, and there are different rules that apply to federal employees in general based on when they were hired, etc. So saying “he loses his pension” may be fully correct or partially correct.

    Either way, he stands to lose at least several hundred thousand dollars, if not the whole shebang.

  24. Jim Brown 32 says:

    I challenge the pragmatic, non partisans, Bunge to link to comments in RW forums where he lectured the commentariate about the hypocrisy of their positions during the Obama administration….of admit that he’s a defender of Trump who got swallowed up into Scott Adams’ Jedi mind trick he peddles on YouTube. No Bunge, These ARE the droids you’re looking for.

    3
  25. wr says:

    @James Pearce: “What if we need evil, wicked, mean, and nasty though? I agree with everything Schiff says, but Trump’s not scared of him. I bet Trump laughs at him when he shows up on TV, probably has a cute little name for him and everything too.”

    Aren’t you the one who keeps telling us to stop reacting to what Trump says? And yet you are willing to dismiss this man who — when he becomes chair of the intelligence committee in January — is going to be Trump’s worst nightmare, simply because Trump gives him a nickname?

    Trump tries to belittle Schiff because he’s scared of him. Just like with Comey and Mueller and McCabe and all the rest.

    2
  26. JohnMcC says:

    @Mikey: There was a headline in some internet location I visited this morning that stated a Congressman had offered to ‘hire’ Mr McCabe for one day. The sub-head said that would meet the necessary ‘time in service’ for whatever pension the gentleman was entitled to.

    It’s pretty clear that the independence or lack of same is the issue here. I’m certain that Mr McCabe, Mr Comey and even Mr Mueller would end up on the opposing side from me if we were in ‘normal’ times. I’d never be considered on the ‘friends of law enforcement’ side; federal law enforcement particularly has seemed partisan for ever and ever on the Right Wing Nutjob end of things.

    But the frigging PRESIDENT has used public media to tell the DOJ what to do and DAMN they went and did it.

    Everything else is BS.

  27. wr says:

    @James Pearce: “What if we need evil, wicked, mean, and nasty though? ”

    So now you want evil, wicked, mean and nasty, but stay away from Stormy Daniels and her lawyers because they’re icky.

    Sorry, can’t parse that.

    2