Andrew McCabe’s Pension Restored

DOJ has settled a civil suit with the former official.

It took three-and-a-half years but justice has finally been done by the Justice Department in the matter of the former Acting Director of the FBI unceremoniously fired by President Trump’s first Attorney General.

NPR (“Fired FBI official Andrew McCabe wins retirement benefits and back pay in settlement“):

The Justice Department has agreed to restore full law enforcement benefits and provide some attorney fees for former FBI Deputy Director Andrew McCabe, who was fired by the Trump administration only hours before his retirement three years ago.

The settlement will resolve a civil lawsuit filed by McCabe, who argued that his ouster was the result of a “years-long public vendetta” driven by the former president.

The Justice Department demoted and then dismissed him on the eve of his 50th birthday in March 2018, when his FBI annuity would have vested.

“I think the message that you get loud and clear from the terms of the settlement is that this never should have happened,” McCabe said. “It feels like complete vindication, because that’s what it is.”

When news of the firing broke, I wrote,

Firing McCabe in this manner, smearing his reputation and depriving him of much of his pension, is shameful. The fact that this all happened after 10pm on a Friday night is a rather clear signal that the decision was clearly rushed to ensure he couldn’t simply retire with dignity. The fact that the President continuously interfered in the matter and was up late at night gloating about the result on Twitter makes it rather obviously a case of abuse of power.

I still believe that. But this should not be viewed as “a complete vindication,” either. As Quinta Jurecic and Benjamin Wittes explained at Lawfare shortly after the firing, McCabe’s hands were not entirely clean.

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.

Still, the firing was clearly politically motivated. Three years of litigation over enhanced pension benefits that would have vested 26 hours later is more than enough punishment for sins that were comparatively venial.

FILED UNDER: Law and the Courts
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Sleeping Dog says:

    While on Elba at Mar-a-Lago TFG doesn’t remember who McCabe is. This was one of dozens if not hundreds of cruel to be cruel actions by that administration.

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  2. Mikey says:

    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.

    Lack of candor under oath is one of very few violations of FBI rules for which there is no mitigating factor permitted. The employee is just fired.

    That being said, I have never thought the charge of lack of candor against McCabe was particularly strong, and I haven’t heard of an FBI employee fired for it who ended up having his/her pension and retirement benefits subsequently restored. Seems like the government is all but admitting the whole case was flawed.

    The taxpayer is also on the hook for McCabe’s attorney fees, which are probably in the multiple tens or hundreds of thousands of dollars. So Trump is still screwing us.

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  3. Daryl and his brother Darryl says:

    This is absolutely the right thing to do.

    1
  4. Jay L Gischer says:

    I recall when this happened, it filled me with a great deal of unease. Given that Trump later tried to install a flunky as acting head of DOJ who could pronounce the election was stolen, I think that unease was justified.

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  5. HarvardLaw92 says:

    @Mikey:

    which are probably in the multiple tens or hundreds of thousands of dollars.

    Roughly $540,000

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  6. Mikey says:

    Here’s another report from CNN with more detail on what this settlement entails. TL;DR is the firing and all that led to it is essentially wiped away, the accusation of lack of candor removed, and he is simply listed in FBI records as having retired in March 2018. He receives all the benefits and honors a retiring agent and Deputy Director would get. Also he’ll get all the retirement pay he has been entitled to (around $200K) and as @HarvardLaw92 said the government will pay $540K to cover McCabe’s legal fees.

    There is no official acknowledgement of wrongdoing, but given the above, there doesn’t need to be. It’s easy to figure out what all this means.

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  7. Stormy Dragon says:

    @Mikey:

    He also gets his Senior Executive Service cuff links!

    More seriously, he did actually get a partial acknowledgement of wrongdoing:

    WHEREAS, the Parties agree that Executive Branch officials outside the Department of Justice and its components should not comment publicly on ongoing career civil service employee disciplinary matters, except as provided by statute or regulation, so as not to create any appearance of improper political influence;