What we know, and don't know, about the McCabe firing

  • 19 March 2018
  • NormanL
Waiting on the IG report

Armchair lawyers and sea of pop-up pundits weighed-in on the firing of former FBI deputy director Andrew McCabe late Friday. Reactions largely depended on partisan talking points -- which are less than useful, and even destructive, in a case such as this.

We waded through the commentary and found this item at Lawfare largely objective on what happened and why. More importantly, it tells us what we do not know, and why that is the most important thing of all:

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.

What we know for a fact is the statement Attorney General Jeff Sessions released on the matter:

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.

We also know that lack of candor is a very serious charge:

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.

The inspector general report is supposed to be released in the next few weeks. It will answer many questions, and do so with the sort of impartial authority and attention to facts we expect from inspectors general.

But we can guess those findings were damning...otherwise, McCabe would not have been fired. But to repeat: we have no specifics.

What we do have is the President's tweets about the firing, which may have done much more harm than any possible good:

Even if the Justice Department’s process proves pure as the driven snow and the case against McCabe proves compelling, 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? The Justice Department career officials involved in this action know this. They know they are being made to look like lackeys, which may be reason to assume that they will have dotted every “i” and crossed every “t” in this instance—and that the facts against McCabe must be bad. But the politicization of law enforcement takes place either way—the latest and perhaps one of the most extreme instances of politicization in a chain of events that has embroiled the FBI in partisan politics since the beginning of the Clinton email investigation. If this action is the political attack that McCabe says it is, everyone involved is responsible for a terrible smear and a horrific abuse of a longtime public servant. But if the dismissal is absolutely justified and the public doesn’t believe that, the integrity of law enforcement suffers as well.

The information we have indicates McCabe was a fired not as part of a partisan witch hunt, but for just cause. The President's insistence on tweeting about the firing undermines the case for McCabe's firing, and potentially much more.