- The firing of Andrew McCabe as deputy FBI director last week came amid a string of public attacks from the president and a heightened political climate around the FBI and the Department of Justice.
- But the reason given for McCabe’s firing – lacking candor when speaking with investigators – may not have been unreasonable, experts say.
- “There is a basis here, and objective minds have to see that,” said one legal expert, who added that “it’s unfortunate, but it’s not shocking.”
- McCabe’s firing came as a shock to some of the bureau’s rank and file, and morale at the FBI could take a hit as a result.
Many thought the firing of Andrew McCabe as deputy FBI director was unfair. But experts say it may not have been unreasonable.
McCabe was fired late Friday, 26 hours before he was set to retire, amid an internal Department of Justice inquiry into his handling of the Hillary Clinton email investigation.
The DOJ’s Office of the Inspector General found that McCabe “lacked candor” when he spoke to investigators about his decision to authorise two FBI officials to speak to the media about that investigation, according to what has been said about its as-yet-unreleased report. The FBI’s Office of Professional Responsibility subsequently recommended to Attorney General Jeff Sessions that he fire McCabe, which Sessions did on Friday.
The firing of McCabe, a decorated 22-year veteran of the DOJ,is likely to jeopardize his pension, as well as his and his family’s lifetime healthcare and Social Security benefits.
His ouster also came after President Donald Trump leveled a string of public attacks on McCabe’s character and integrity and accused him of putting his thumb on the scale in favour of Clinton.
McCabe said in a statement Friday night that he had been “singled out” and that he and his family had been the targets of “an unrelenting assault on our reputation and my service to this country.”
He added that the OIG’s investigation “has to be understood in the context of the attacks on my credibility” – a point that legal experts and McCabe’s former colleagues largely echoed in interviews over the weekend.
No ‘action in the disciplinary history of the FBI that will do more to wound FBI morale’
Current FBI agents told Business Insider they were taken aback by McCabe’s firing, and experts worry it could have a chilling effect.
One FBI official who requested anonymity to speak freely expressed shock at the DOJ’s decision.
“You’ll have to come back and ask me later,” the official said in a text message Saturday morning. “Not sure how to process this right now. Others feel the same. Shocked.”
Another agent said McCabe’s firing and the political climate surrounding it had left them feeling “shaken.”
“Andy’s been in a tough position during this whole thing, and even if he did what OIG and OPR are saying … he served the FBI with honour,” the agent said.
Patrick Cotter, a DOJ veteran who has previously worked with members of the special counsel Robert Mueller’s team investigating Russia’s interference in the 2016 US election, said McCabe’s firing could have far-reaching consequences within the FBI’s rank and file.
“Whatever the powers that be intended, the message here to the rank and file is not going to have anything to do with how you talk to the press or to the OIG,” he said.
Cotter continued: “It’s going to be that if the president gets angry at you for supporting someone he fired and for cooperating with Mueller, you lose your pension. I doubt there has ever been an action in the disciplinary history of the FBI that will do more to wound FBI morale while also undermining the allegedly nonpolitical reputation of the bureau.”
‘Once you’re in OPR’s net, it’s hard to get out’
McCabe was acting within his authority as deputy FBI director – and with the knowledge of his superiors – when he told FBI officials to talk to The Wall Street Journal in October 2016 about the DOJ’s internal strife over how to handle the investigation into Clinton’s use of a private email server as secretary of state.
McCabe said he authorised the disclosure to push back against reports that he and the FBI were caving to pressure from the DOJ to shut down the investigation leading up to the election.
But McCabe’s dismissal was not predicated on his approval of media disclosures. Rather, it stemmed from his being less than candid with investigators when he later detailed the process of the disclosures, according to Sessions’ statement on Friday based on the OIG’s report.
McCabe said in his statement that when officials asked him about his handling of the Clinton investigation, he “answered questions truthfully and as accurately as I could amidst the chaos that surrounded me.”
“And when I thought my answers were misunderstood,” McCabe said, “I contacted investigators to correct them.”
Frank Montoya Jr., a recently retired FBI agent who worked closely with McCabe, highlighted the former deputy director’s comments.
“The investigator writes the statement, but subject gets to review,” he said. “If clarification is needed, then it is clarified. The statement is not completed until it is signed.”
McCabe was not being investigated for a crime, like perjury or lying to investigators. For that reason, his efforts to proactively correct his statements may not have mattered to the OPR, said Asha Rangappa, a former FBI special agent.
Rangappa said that the OPR’s bar for misconduct was “very low” and that its purpose “is to investigate misconduct in the FBI.”
“Given the FBI’s mission, that means that every FBI agent must be BEYOND REPROACH,” Rangappa said. “This is a tough standard, and one that all agents are held to.”
She added that the office would investigate “any discrepancies, whether in your use of the FBI’s database, or your use of your government credit card or your Bureau car or phone,” and that “ANY infraction, no matter how small, can be ‘OPR’d.'”
“And once you’re in OPR’s net, it’s hard to get out,” Rangappa said.
Montoya echoed that view.
“FBI OPR has dismissed FBI employees for misconduct in the past who were then reinstated as employees,” he said. “Why is that? OPR had a change of heart? Or got something wrong?”
The inspector general who wrote the report, Michael Horowitz, is a holdover from the previous administration.
“The Trump administration has appointed a lot of political hacks to high-ranking government positions,” said Jeffrey Cramer, a former federal prosecutor who spent 12 years at the DOJ. “Michael Horowitz is not one of them.”
Cotter characterised McCabe’s punishment as overly harsh and not befitting the misconduct of which he was accused.
“The idea that a 20-year guy with McCabe’s record gets fired two days before retirement because of how he characterised to the [inspector general] his admitted contacts with the press seems like nonsense to me,” Cotter said. “There are lots of other disciplinary steps (e.g., demotion, reduction in grade) that could have been taken. To levy the ultimate punishment under these circumstances seems grossly disproportionate.”
‘It’s unfortunate, but it’s not shocking’
Some legal analysts said the underlying basis for McCabe’s firing – misleading investigators about a decision he made, according to what has been said about the OIG’s report – was “not unreasonable.”
“When FBI agents at any level do this, there needs to be some sort of punishment,” Cramer said. “It’s unfortunate that someone put in 22 years of dedicated service and lost his pension over this. But this isn’t unreasonable. It’s not like Jeff Sessions woke up one day and saw a tweet from the president and fired McCabe for absolutely no reason.”
He added: “There is a basis here, and objective minds have to see that.”
McCabe’s firing has ignited significant pushback from lawmakers – many of them Republicans – who said the process should have been handled differently and with more transparency.
Experts also said it was difficult to divorce McCabe’s firing from the increasingly political climate surrounding the DOJ and the FBI.
“The obvious nature and intensity of the politics surrounding Andy’s dismissal make it reasonable to at least consider the possibility those politics influenced the decision,” Montoya said. “That possibility is further enhanced by Andy’s insistence that he did not mislead investigators. That means more, by the way, if Andy doesn’t have a demonstrated history of prevarication, which he does not.”
Cramer agreed. If McCabe were less than candid when speaking to investigators about “any random case,” Cramer said, he most likely would have gotten a slap on the wrist.
“But Andrew McCabe has been a lightning rod for the last several months,” he said. “He’s not a regular case agent; he has a heightened responsibility, this was a heightened political case, and he was fired, in part, for a heightened political reason.”
He added: “If you are less than candid to investigators, and the inspector general finds that, then the attorney general is within his rights to fire you. It’s not shocking. It’s unfortunate, but it’s not shocking.”
But Cramer said that while he understood the basis for the DOJ’s decision, “this is a shame on many levels.”
“While the president was judging Miss Universe pageants, Andrew McCabe was working cases,” he said. “He should have been allowed to retire with dignity after 22 years of dedicated service.”
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