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McCabe’s Firing, Comey’s Contradiction & Outside Prosecutors

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Attorney General Jeff Sessions formally fired Deputy FBI Director Andrew McCabe on Friday, March 16, 2018.

From Sessions statement:

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.

McCabe, unlike Comey, is a career employee. Political appointees may be fired by the President. Career employees enjoy much stronger job protection.

The statement makes several important points:

  1. DOJ Inspector General Horowitz conducted a formal investigation into McCabe’s conduct.
  2. IG Horowitz found meaningful evidence of misconduct by McCabe.
  3. The misconduct was of a level serious enough to warrant forwarding to the FBI’s Office of Professional Responsibility.
  4. The FBI’s OPR reviewed all materials and allegations – in essence a second investigation.
  5. The FBI’s OPR found the misconduct engaged in by McCabe was so severe it warranted a remedy of full dismissal.

This sequence of events, culminating in a recommendation of dismissal, is rare.

When full details are disclosed, I’m guessing the findings will prove more serious than commonly perceived.

I’m not alone in this belief:

I discuss some of these other details here.

Note also the reasons cited for McCabe’s firing.

Both the Inspector General and the FBI’s Office of Professional Responsibility found that McCabe:

  1. Made unauthorized disclosures to the media – illegal leaking.
  2. Lied under oath – multiple times.

McCabe responded to his firing with a released statement, which contained the following:

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.

There was an immediate problem with McCabe’s response.

On May 3, 2017, James Comey testified before the Senate Judiciary Committee:

GRASSLEY: Director Comey, have you ever been an anonymous source in news reports about matters relating to the Trump investigation or the Clinton investigation?

COMEY: Never.

GRASSLEY: Question two, relatively related, have you ever authorized someone else at the FBI to be an anonymous source in news reports about the Trump investigation or the Clinton investigation?

COMEY: No.

GRASSLEY: Has any classified information relating to President Trump or his association — associates been declassified and shared with the media?

COMEY: Not to my knowledge.

A bit later in the same line of questioning:

GRASSLEY: There are several senior FBI officials who would’ve had access to the classified information that was leaked, including yourself and the deputy director. So how can the Justice Department guarantee the integrity of the investigations without designating an agency, other than the FBI, to gather the facts and eliminate senior FBI officials as suspects?

COMEY: Well, I’m not going to answer about any particular investigations but there are — I know of situations in the past where if you think the FBI or its leadership are suspects, you have another investigative agency support the investigation by federal prosecutors. It can be done. It has been done in the past.

“You have another investigative agency support the investigation by federal prosecutors”…

More on this shortly.

Lying to the FBI is a serious offense. Just ask General Michael Flynn – whose actual conduct was perfectly legal.

Andrew McCabe Lied Multiple Times.

Under. Oath.

There are three possible explanations. None of which are mutually exclusive.

One is that McCabe lied under oath during his closed-door Congressional interview session.

Two points:

  1. McCabe’s hearing behind closed doors was considered “confidential,” but not classified.
  2. As part of a negotiated agreement, McCabe did not discuss topics that touched on Mueller investigation.

A second is that McCabe lied to the Inspector General:

IG’s can place federal employees under oath.

IG’s lack subpoena power over non-federal employees. This means that federal employees who come under OIG investigation can stymie the process by simply resigning.

The DOJ Inspector General specifically lacks authority to investigate misconduct by DOJ attorney-prosecutors, who under the current arrangement answer only to Justice’s Office of Professional Responsibility.

McCabe was still technically employed. McCabe went on leave January 29, 2018 but was still an employee of the FBI. McCabe was also not covered under the DOJ attorney-prosecutor carveout.

The third explanation comes from this March 7, 2018 interview with AG Jeff Sessions:

I have appointed a person outside of Washington, many years in the Department of Justice, to look at all the allegations that the House Judiciary Committee members sent to us – and we’re conducting that investigation.

Also, I am well aware we have a responsibility to insure the integrity of the FISA process – we’re not afraid to look at that. The inspector general, some think that our inspector general is not very strong – but he has almost 500 employees, most of which are lawyers and prosecutors – and they are looking at the FISA process. We must make sure that it’s done properly and we’re going to do that.

Inspector Generals have no prosecutorial power. But they can refer people for prosecution.

On March 28, 2017, Senator Chuck Grassley sent a letter regarding Andrew McCabe’s “potential conflicts”. Covered here.

On July 27, 2017, Representative Goodlatte along with multiple House Republicans sent a letter requesting the appointment of a second Special Counsel.

Again, McCabe was specifically mentioned. Covered here.

Goodlatte renewed his call for a second Special Counsel on September 26, 2017.

Here is a November 17, 2017 response letter from Assistant Attorney General Stephen Boyd to House Judiciary Chairman Bob Goodlatte:

Assistant Attorney General Stephen Boyd letter to Rep. Robert W. Goodlatte by Caroline McKee on Scribd

Note the following from Boyd’s letter:

The Attorney General has directed senior federal prosecutors to evaluate certain issues raised in your letters.

These senior prosecutors will report directly to the Attorney General and the Deputy Attorney General, as appropriate, and will make recommendations as to whether any matters not currently under investigation should be opened, whether any matters currently under investigation, require further resources, or whether any matters merit the appointment of a Special Counsel.

These senior prosecutors are separate from the Inspector General and his team.

They are quite likely the prosecuting team now working under the same individual referenced in the March 3, 2018 Sessions interview:

I have appointed a person outside of Washington, many years in the Department of Justice, to look at all the allegations that the House Judiciary Committee members sent to us – and we’re conducting that investigation.

Some have thought that Sessions was actually referring to IG Horowitz.

Shannon Bream, who conducted the Sessions interview, stated this was incorrect:

She did so two more times:

Specifically mentioned in Boyd’s letter…

FBI Deputy Director Andrew McCabe.

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