The Stakes and Misinformation about the Andrew McCabe Declination

Amid the other crazy events of the week, DOJ informed Andrew McCabe he would not be prosecuted as a result of the criminal referral arising from DOJ IG’s finding that he lacked candor when asked about an October 30, 2016 Devlin Barrett story.

While it’s possible the Tuesday Afternoon Massacre and Jessie Liu’s removal had some role in the timing of this notice, one thing is clear: McCabe got notice primarily because Judge Reggie Walton had imposed a deadline in a CREW FOIA to release some transcripts about the stalled decision-making process. Probably, DOJ made the decision last fall after a grand jury refused to charge McCabe, but stalled on giving McCabe notice because DOJ knew it would piss off Trump. But since the court transcripts would reveal some of that, the FOIA deadline finally forced DOJ’s hand.

In the aftermath of the McCabe news, a bunch of frothy Republicans, including Chuck Grassley, have analogized the investigation into McCabe with the investigations into Roger Stone (for conducting a two year cover-up, including making threats against a witness and a judge) and Mike Flynn (for lying multiple times to the FBI, continuing to fudge the truth in the ongoing investigation, and lying to hide that he was on Turkey’s payroll at a time when he was Trump’s top national security advisor). Even taken on their face, that’s a ridiculous comparison, one that dismisses the import of threatening judges and secretly serving as agents for frenemy governments while receiving intelligence briefings. The accusations against the men are different, with a lack of candor allegation against McCabe versus lying against the others, and egregious mitigating factors implicating national security with the others. Whereas grand jury reportedly refused to even charge McCabe, a jury found Stone guilty of every count with which he was charged.

More importantly, the comparison has treated the allegation against McCabe with a seriousness that the underlying record — as laid out in McCabe’s lawsuit against DOJ — does not merit.

And McCabe’s lawsuit may provide a partial explanation for why DOJ stalled so long before declining to prosecute the case. That’s because a key part of DOJ’s defense against McCabe’s lawsuit is that they could or even had to move so quickly to fire McCabe because there was reasonable reason to believe that McCabe had committed a crime for which he could be imprisoned.

Mr. McCabe was given seven days to provide oral and written responses to the notice of proposed removal to ADAG Schools. That response period was a departure from the 30-day response period more frequently provided for a proposed removal. But FBI policy governing the removal of Senior Executive Service (SES) employees provides that “if there is reasonable cause to believe the employee has committed a crime for which a sentence of imprisonment can be imposed, the advance notice may be curtailed to as little as seven days.” FBI SES Policy at 16 (attached as Ex. 2). Given the Inspector General’s findings that Mr. McCabe lacked candor under oath, findings which Assistant Director Will seconded after her independent assessment, there was reasonable cause to believe that Mr. McCabe had committed a crime for which a sentence could be imposed—and, therefore, a sound basis for affording Mr. McCabe seven days to respond.

DOJ has excused their rush to fire McCabe based on having reasonable grounds to believe he could be prosecuted for lies, but the rush to fire McCabe resulted in DOJ ignoring clear evidence that the IG Report was fundamentally flawed in a way that easily explains why a grand jury would refuse to indict. So the lawsuit, if McCabe gets discovery, is likely to show that he was rushed out the door to prevent him from building the case that he was being rushed out the door based on a case riddled with problems.

When the IG Report came out, I found it pretty compelling and therefore the criminal referral understandable (though I did not believe criminal charges would be upheld), even while noting the big push to make that happen before McCabe retired delegitimized it. But now it’s clear that the report didn’t get the normal level of pre- and post-publication review, McCabe’s OPR process was rushed to beat his retirement deadline, and had either of those processes been conducted in the normal fashion, they would have likely caught significant problems with the report.

Indeed, McCabe presented compelling evidence — even in a very rushed written response submitted to OPR hours before Jeff Sessions fired him — that he had at least colorable explanations to rebut the IG Report allegations.

As laid out, the IG Report accused McCabe of lacking candor about two kinds of things: first, whether he had told Comey he was a source for the WSJ story, and what role he and Lisa Page had in the story. Both the middle meetings — May 9, 2017, hours before Comey’s firing and his ascension to Acting Director, and July 28, 2017, in the context of a meeting about the discovery of the Page-Strzok texts — were on two of the most momentous days of McCabe’s career. The other two pertain to whether or not McCabe told Comey about his involvement in the WSJ story, which the IG Report portrayed as a difference of opinion about a casual meeting the two had, about which the IG sided with Comey’s version.

Thus, to a significant degree, the question of McCabe’s candor pivoted on whether he had really told Comey he was involved in the WSJ story.

And, as McCabe alerted OPR before he got fired, the IG Report included no mention of one of the most central players in the October 2016 WSJ story, FBI’s Assistant Director of Public Affairs Michael Kortan, with whom McCabe worked closely on the WSJ story. In other words, the IG Report suffers from the kind of egregious failure to include exculpatory information that it just took FBI to task about in the Carter Page IG Report (which also happens to be true of the Carter Page IG Report generally and its treatment of Bruce Ohr specifically). So when the IG Report sides with Comey’s version of the story because,

no other senior FBI official corroborated McCabe’s testimony that, among FBI executive leadership, “people knew generally” he had authorized the disclosure,

The Report can only make such a claim because it entirely left out the testimony of one of the most central players, Kortan. And as McCabe has made clear, in the OPR adjudication, his team did not get the exculpatory information involving Kortan until two days before the final decision.

Reports of why the grand jury refused to indict have pointed to Kortan’s testimony, and it’s clear why: because his testimony totally undermines the conclusions of the IG Report and therefore any basis to indict him.

Most importantly, McCabe submitted an email showing that he informed Comey (and some of the other senior FBI people whom the IG Report claimed didn’t know he was involved) that he was involved in the WSJ story.

With the declination of McCabe, DOJ has admitted that a key reason they claim to have relied on (a claim McCabe disputes) on rushing McCabe’s firing is false: he’s not likely to face prison time, because a grand jury won’t even indict him. And that may increase the chances that McCabe will get to prove precisely why he was rushed out the door with Trump screaming about him all the way.

59 replies
  1. bmaz says:

    Lol, I bet it didn’t take the GJ ten minutes to decline this sucker. Somebody should investigate Horowitz.

    • emptywheel says:

      At the very least, I hope to hell McCabe gets discovery. Goddamnit I have tried to resist that little bit of resistance enthusiasm.

        • emptywheel says:

          Which will get into a ton more issues, such as why after he was demoted they treated him as the Deputy Director (which is the only reason Rosenstein should have been able to fire him) and why instead of Rosenstein Sessions did the deed, even though he was recused from all election related investigations.

    • BobCon says:

      Am I correct that issuing a bogus IG report that is used to launch a criminal prosecution is a whole order worse than putting a thumb on the scale of the Carter Page report?

        • BobCon says:

          The IG report. I’m curious what this means for the level of where Horowitz has been operating — guy bending with the prevailing winds, or active enabler.

        • bmaz says:

          Naw, that is a fact. I thought Horowitz’s report and work was bad from the start. It only got worse from there.

        • BobCon says:

          I would live to see a legitimate future IG issue a report on the current IG, although I suspect there will be many bigger fish to fry.

        • Peterr says:

          Leaving out Kortan, to me, suggests far more than confirmation bias. I wonder how many calls, texts, and emails were coming from the WH to DOJ saying “Have you fired him yet?”

        • emptywheel says:

          If you look on the docket they actually did a table of all the times Trump harangued, including at Horowitz.

        • greengiant says:

          Guessing we all wonder about the table of all the times Trump harangued privately and of all the pertaining communications between ( WH and other Trumpsters ) and the DOJ on McCabe. Anyway of knowing what Fox news etc., instagram and twitter feeds the DOJ heads were monitoring? Were they getting marching orders from the likes of Hannity or Solomon or Alex Jones?

  2. gl says:

    “Given the Inspector General’s findings that Mr. McCabe lacked candor under oath, findings which Assistant Director Will seconded after her independent assessment, there was reasonable cause to believe that Mr. McCabe had committed a crime for which a sentence could be imposed—…”

    Lacking candor under oath seems to be an apt description of Trump’s written responses to Mueller which, almost without exception, begin with:
    “I do not recall…”
    “I do not remember…”
    “I have no recollection…”

  3. Nehoa says:

    Chairman: Mr. Barr, what is your position on candor under oath?
    Mr. Barr: My position, as a matter of personal safety, is keep as far away from it as possible.

  4. Peterr says:

    Upon receiving news of McCabe’s non-prosecution, Ham Sandwiches everywhere are breathing a bit easier, so long as Bill Barr remains AG.

    • bmaz says:

      Meh, the ham sandwiches will be fine. It is very rare you find a sandwich on the tray that does not even have Spam, much less ham.

    • orionATL says:


      sir, not once in a lifetime but twice, bill barr has been the u.s. attorney general. surely he is a very accomplished prosecutor.

  5. earlofhuntingdon says:

    Given the flamboyance of Mr. Trump’s Daytona 500 visit, I’d like to see the campaign accounting and payment for his security detail, his Air Force One fly-by, his use of the armored presidential limo, ad nauseum.

    And his reimbursement to the locals for their extra security expenses for his campaign event. He apparently still owes a lot of other cities for those expenses and refuses to admit he owes them or to pay for them. After six bankruptcies, he’s notorious for not paying his bills.

    • e.a.f. says:

      The Queen of England doesn’t pay for her security at any time so why should he? trump thinks the country owes him this and he is doing it for the benefit of the country after all. it makes people happy to see him at these events.

      My take on it is, trump isn’t paying because he is too cheap and too much of a crook. its like doing a dine and dash. There is also the matter of how bullies deal with their bills. They force people to go after them. The fewer who stand up to them, the more they take advantage. Trumps a free loader in my opinion. You would think his campaign people would arrange to make the payments or perhaps he has moved all the campaign money into his personal account and there is nothing to pay any one with. If trump has declared bankruptcy so frequently perhaps he does not currently have the money to pay for anything and hence his continuing in the position. A grifter does what a grifter has to.

      • Maureen A Donnelly says:

        Lord Dampnut is working hard to hide his taxes because he’s not nearly as rich as he’d hope and he’s into the Russians bigly. Rich people tend to be rich because they are cheap! Trump is gold plated trailer trash.

        • Ruthie says:

          I know from personal experience just how true that is.

          I went to school with the son of a very rich NYC family, old money so I heard. Whenever we went on one of our regular field trips, he *never* offered to drive and *never* had money for gas. I was probably one of the poorest of my classmates and I wouldn’t have dreamt of not chipping in.

  6. Molly Pitcher says:

    From Robert Reich on Instagram:

    Barr has turned the DOJ into Trump’s stooge.
    McConnell has turned the Senate into Trump’s rubber stamp.
    Gorsuch and Kavanaugh have turned the Supreme Court into Trump’s doormat.
    The GOP has turned itself into a Trump cult.
    At what point do we call this a dictatorship?

        • orionATL says:

          why in moderation?

          only harpie and i among regular commentors here have this problem.

          too accurate, controversial, and hot for emptywheel to handle?

        • bmaz says:

          It is our security filters. We do not, and cannot, monitor 24 hrs a day like used to be done a decade ago. That’s just the way it is. And, no, you and Harpie are not the only ones. Just the ones that freak out when we happen to be away and not serving everybody’s impatient demands. If we see comments stuck in moderation, we free them up. Complaining that something is in moderation does not speed that up one iota.

        • orionATL says:

          thanks bmaz.

          patience, i’ve been told, is a virtue. i don’t understand. what could they be meaning by this? 😟

          i owe you one – or two.

        • harpie says:

          I’ve been off line for four days, and am just catching up, so I just saw this.
          I had no idea I am perceived to be “freaking out”, impatient and demanding when I ask for comments to be released from moderation.
          I’m sorry and will refrain in the future.

        • bmaz says:

          You are fine. But you are a trusted commenter. If we are around to see one of your comments in moderation, we will release it immediately. It is just that we are not always around.

    • AndTheSlithyToves says:

      Does Robert Reich have any suggestions on what to do about Trump, or is he just into calling out what some of us have known since Trump bulldozed the nomination and then stole the election?

  7. misteranderson says:

    It’s so frustrating when one digs down into the weeds like Marcy has done here and you see how innocent Mccabe is here but the big lie that frothy right-wingers put out there that he’s guilty still succeeds in planting itself in the public consciousness. It requires time & effort to ascertain the truth of Trump’s lies & the public will never have the time or willingness to make the effort to do that. I have a brother who believes Trump was exonerated by the Senate.

  8. vvv says:

    For a late night dose of aggro/laughter, check out the genius, Andrew McCarthy’s National Review article, “Why Wasn’t Andrew McCabe Charged?” h*t*t*p*s://
    For example, 2nd paragraph in: ” George Papadopoulos was convicted of making a trivial false statement about the date of a meeting. Roger Stone was convicted of obstruction long after the special counsel knew there was no Trump–Russia conspiracy, even though his meanderings did not impede the investigation in any meaningful way. “

  9. Eureka says:

    This sounds interesting, from Book TV:

    Harvest the Vote
    Nebraska Democratic Party Chair Jane Kleeb offered her thoughts on how the Democratic Party can win back rural voters.

    Can’t give a synopsis, as I have yet to finish it. But in an interesting coincidence, coming here to share this I see from bmaz’s twitter that Bloomie apparently hasn’t watched this, either /s (insulting farmers doesn’t seem the best way to win rural voters):

    • bg says:

      Thanks for the C-span link. Very good. We have many similar issues in NM, which is a blue state but with a lot of red rural areas. Some excellent points throughout, an hour, but worth it all, I think.

      • Eureka says:

        Yeah, I really liked how they structured the presentation in a way synonymous with her (their) points, too — with different speakers taking turns, and her particular summary points interspersed throughout (there is a word for this that’s not coming to me at the moment). It was an integrated, grassroots presentation.

        That they should have had Jon Tester — the last actual Senator farmer, she said — at the table for working up the Green New Deal; that they shouldn’t “hide” people like AOC from redder places (in fact that progressive appearances during the Nebraska floods would have been appreciated); that absent a Constitutional Convention*, all the states get two senators, so “coastals” repeating that talking point about overrepresentation of less populous states just works now as an alienating wedge… that and more all things to consider.

        Unfortunately I missed the part of Wednesday’s dem debate about fracking — just saw some (perhaps unrepresentative) snippets with dumb comments (like Klobuchar supporting it — yikes). It would have tied in with the pipeline / other oil-and-gas issues discussed here, and on steroids: there’s nothing like flaming faucets, discolored water, and rampant sickness to unite people across party lines.

        *The way things are going, the only such Convention on the horizon would be a Koch-sponsored one, and to disastrous consequences in any case.

  10. Eureka says:

    Some sharp, hot fire from Will Bunch. He takes off where Neil Postman left off:

    Bloomberg vs. Trump would mean America has already amused itself to death

    In 1984, the NYU prof [Postman] was asked to deliver a lecture around the year and the theme of George Orwell’s iconic dystopian novel, about an age of government censorship and thought control. Postman’s provocative thesis was that modern society was devolving not toward Orwell but toward Aldous Huxley’s Brave New World, in which the masses surrender their agency as citizens for a soothing drug called soma. Except the real-life soma is TV and other mass entertainment. Engaged civic discourse in America would soon wither away because, as Postman titled his book the following year, we were amusing ourselves to death.

    (internal links removed)

    Excerpted to explain the reference, but the real pleasure is in the experience, with so many points of resonance for any given reader (it also has great links).

    • viget says:

      Thus it has always been so. Bread and circuses for the plebes of Rome so to distract from the continued erosion of what little rights they had under the Republic.

      Also, David Foster Wallace’s magnum opus Infinite Jest foretold of this almost 25 years ago. It’s been a while since I read it, need to pick it up again.

      Much like any of the gov’t reports Marcy analyzes here, a lot of the real story is in the footnotes of that novel.

      • Viget says:

        In a sort of meta way, Mike Judge’s Idiocracy also fits this bill, but for Judge it seems to be more about making fun of politics and the state of affairs than in trying to send a message and warn his audience.

        Let’s put it this way, he’s no John Oliver.

        • Patient Observer says:

          From the August 2017 article:

          ***“I mean, in a way Idiocracy kind of looks optimistic right now,” Mike Judge tells The Daily Beast by phone from his Los Angeles office.


          “Camacho almost seems like a more pleasant person,” Judge says, comparing his fictional president to Trump. He may not have a very big vocabulary and is prone to spewing profanity, but at least we never see President Camacho pander to neo-Nazis and white supremacists.

          During the 2016 election, Judge and his Idiocracy co-writer Etan Cohen, came up with an idea to create a series of parody campaign ads starring Crews’ Camacho. Unfortunately, Rupert Murdoch’s 21st Century Fox, which still owns the film and its characters, declined to give them permission. It didn’t help that the ads were being billed as explicitly anti-Trump, despite Judge’s insistence otherwise.


          “Sometimes I think it’s going to be OK and sometimes I don’t,” Judge says of Trump’s first 200 days in office. “I think the media loves to create hysteria over anything. And I wish people would calm down a little more. But the problem is, you have a president who just loves to tweet crazy stuff.”

          At the height of the 2016 campaign, Judge says he was “trying not to imagine” that the dystopia he had created on screen could become reality. But as he told The Daily Beast a year ago, “every other Twitter comment I get is about Idiocracy, and how it’s a documentary now.” Before Trump won, he called the parallels “surreal” and a “tad bit scary.” Now, he sounds genuinely concerned.

          “I mean, the fact is, he is the president,” Judge says, hopeful that Trump is less like President Camacho than he seems on the surface. “I want good things for the country. I don’t want to be the one that predicted something horrible that then happens.”***

  11. Frank Probst says:

    So where does this leave McCabe in terms of his civil suit? It sounds like the potential embarrassment of the government would be a strong incentive to settle rather than to proceed to discovery, but I’m not sure how much leeway the government has (compared to say, a company) to offer settlements. McCabe’s going to want his full pension (with backpay) and all of his legal fees paid for, and maybe some money for emotional distress or defamation or something of the like. What’s the chance that he gets it?

    • emptywheel says:

      It’s a good question. I still think it’s an uphill battle. But you’re right, DOJ is going to want to avoid losing this, not least because McCabe could demand to be reinstated formally for a week or so, which would be sure to infuriate Trump to new levels.

      • bmaz says:

        The obvious settlement point for a rational DOJ actor. Reinstatement for a few days, retirement and full pension. Atty fees and costs to be negotiated separately and privately, including binding mediation/arbitration if necessary.

        • bmaz says:

          Yes, they can be subpoenaed. The recipient of the subpoena could attempt to quash it, but if it is material, a court probably orders it produced.

      • SomeGuyInMaine says:

        Trump surely doesn’t want McCabe’s suit settled any time soon. So, Barr won’t let it settle.

        Can’t see why McCabe would want to settle either right now. He just gained the upper hand with the prosecution declination and FOIA release.

        I think everyone will be game to roll the dice on discovery. Or if not discovery, at least a few more steps closer to discovery.

        I’d expect the government to begin delay tactics, if needed, to push anything significant till after the election.

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