Tea Leaves on the Garland-Monaco DOJ and the Stay in Andrew McCabe’s Lawsuit

The effort to figure out precisely why moderate Merrick Garland and career DOJ employee Lisa Monaco are having the Department of Justice sustain shitty positions adopted under Bill Barr has reached a fever pitch. In my piece on Monaco, I noted one thing — her presumed approval, on her first day in the job, of a raid on Rudy Giuliani — that suggests some people are mistaking a likely effort to sustain DOJ as an institution for an effort to protect Trump.

I’d like to point to another tea leaf — something that happened (perhaps coincidentally) on Monaco’s third full day on the job. That’s when the two sides in Andrew McCabe’s lawsuit moved to stay discovery pending an effort to settle the case.

The parties jointly move this Court to stay all discovery in this proceeding, for 45 days after this motion is granted, and to extend all previously set case deadlines and events by 45 days. The parties request this relief so that they may explore the possibility of settlement.

Good cause exists for the requested relief, because the stay and extension would allow the parties to focus their efforts on discussing settlement expeditiously, free from any competing obligations and ongoing disputes related to discovery, and without burdening the Court with potentially unnecessary discovery disputes. The parties propose to update the Court two business days before the stay’s expiration about whether a further stay and extension is warranted.

On its face, a settlement with McCabe would look like a stark reversal of a Trump policy. Top levels of Trump’s DOJ signed declarations swearing that McCabe’s firing was for cause. At that level, the interest in settling the lawsuit looks like a pretty serious reversal.

That said, depending on how broadly Judge Randolph Moss ruled discovery must extend (an issue that is still pending), McCabe’s lawsuit could seriously embarrass DOJ. Even just his case in chief, in which DOJ IG and OPR ignored the testimony of key witness, FBI press person Michael Kortan (with whom McCabe’s office worked on the story that DOJ claims he was trying to hide), full discovery could badly embarrass DOJ. Still more so if the extent to which DOJ pushed to indict McCabe, allegedly after the grand jury rejected charges against him, became public. By the end of Barr’s tenure, DOJ had altered a McCabe document and submitted it to Emmet Sullivan, another potentially damaging revelation (though one probably outside any imaginable scope of discovery).

And that’s just what we know about. In the weeks leading up to McCabe’s testimony before the Senate Judiciary Committee, DOJ was refusing to share documents that McCabe needed to adequately prep for his appearance.

I’m not sure what this particular move suggests about DOJ. But I know that full exposure of the witch hunt against McCabe would badly damage DOJ, including some career employees who served Barr’s whims. But a settlement would also damage the Trump DOJ, because it would prove that Trump politicized his entire DOJ to take out perceived enemies.

That is, amid all the other tea leaves, what happens with the McCabe suit may indicate which damage to DOJ the Garland-Monaco DOJ seems most intent on avoiding.

Update: The two sides just filed an update: No settlement has been reached, but they remain in talks.

Consistent with their April 23, 2021 Joint Motion to Stay Discovery and Extend All Case Deadlines (Dkt. 56), the parties submit this joint notice regarding the current stay of litigation.

On April 27, 2021, this Court granted the parties’ joint motion for a 45-day stay of all discovery so that the Parties could focus on exploring the possibility of settlement. No settlement has been reached, but the parties are continuing their discussions. In the event that they agree that a further stay is warranted, they will so notify the Court by filing another joint motion to extend the stay and related deadlines.

33 replies
  1. Leu2500 says:

    Except you don’t sustain DoJ by taking shitty positions.

    And this “unitary executive” garbage needs to end.

  2. joel fisher says:

    I don’t know why it’s so complicated.
    1) Trumpy scum, out the door;
    2) “Only following orders” people, lots of condemnation work to be done when the infrastructure bill passes.

  3. Frank Anon says:

    It just feels to me like the DOJ has decided that a) the LGBTQ students will lose at the Supreme Court, and want to be at the table to help make less-bad law, b) want to defend on the E Jean Carroll case to try to keep the Supreme Court from deciding that Presidents can murder people on Fifth Avenue with no legal exposure and c) want to do all this without triggering any kind of third party legal action. Trump left a lot of land mines that don’t get neutralized by bearing the banner of good policy

  4. OldTulsaDude says:

    Although it nauseates me that the DOJ would protect either Barr or Trump, from what I’ve read the government has a case in both instances. As to DOJ attorneys, are they not somewhat obligated to continue down this path – if for no other reason than to establish precedent?

    • timbo says:

      Establish precedent that benefits whom? In general, they’ll likely try to chicken out if it looks like it won’t look in historical (or bureaucratic career) terms.

  5. earlofhuntingdon says:

    Barr and his predecessors under Trump left behind so much malfeasance, maladministration, and dark piles of unknown provenance that its stairwells must resemble those of 18th century Versailles. That must make it hard for the new administration to choose between what amounts to defending the institution and defending Donald Trump. I hope they make distinguishing the two a higher priority – and avoid thinking that not disclosing or admitting fuck-ups is the same thing as not having committed them. It can choose to help cure a wrong or compound it.

    • earlofhuntingdon says:

      Merrick Garland disagrees with his critics: “This is what peak performance looks like.”

      Makes me long for that moment in Independence Day, when President Whitmore has finally had enough of his SecDef, Albert Nimzicki, remembers that he doesn’t have to live with that particular mistake any longer, and fires him.

      • Marinela says:

        Why is so hard to simply do what is just as in justice instead of this circular logic to protect what? Institution is not protected if people that voted to oust Trump and were disgusted by what Barr did now see Garland’s DOJ continuing the wrongs especially when it would be so easy to just accept the mistakes and move on.

        What good does to the DOJ as institution if they end up protecting career personal that follow Barr’s whims without push back?
        You end up protecting career personnel that is politicized.

        At least would be useful if they explain to the public the why and what really happened and how it happened.

        Seems like they are skipping steps, and no transparency.

      • OldTulsaDude says:

        I keep thinking about Kevin Bacon in A Few Good Men: I represent to the government of the United States without passion or prejudice, and my client has a case.

  6. Savage Librarian says:

    Rape of the Deadlock

    After all the murders of the eye,
    With millions slain, in time you die,
    When suns set, as set they must,
    And tresses shall be laid in dust,
    This deadlock consecrate it to fame,
    Midst stars inscribe honor’s name.

    [With all due respect to Alexander Pope (1688-1744)]

    • Ginevra diBenci says:

      Thank you, SL, for the lines and the Pope reference, which took me back to the Dryden v. Pope disputes back in an 18th Century class. I voted Pope, then and now.

      Why does the word “tresses” conjure the image of a lacquered strap wrapped across a former president’s (bald) forehead?

  7. WilliamOckham says:

    Hmmm… they have 2 days left on the stay and they didn’t ask for another one, so they must think they’re close? Am I reading that correctly (asking the lawyers).

    In any event, settling this lawsuit seems to be in everyone’s best interest. I’d expect it to be a total capitulation by the DoJ with just enough of a fig leaf to avoid admitting how much career employees gave in to the transparent political abuse.

    • emptywheel says:

      No. The stay pushed discovery deadlines out into September. So they still have weeks before they’d have to get back to discovery.

      This is a substantial amount of money for McCabe, and DOJ knows that. I believe that McCabe would happily push hard for discovery, but DOJ knows that they’re playing with a lot of $$ and presumably are using that to avoid having to share with him a lot of very damning details.

      • emptywheel says:

        I mean, the ideal thing would be for someone to offer McCabe a pension’s worth of salary for 10 months of nominal work while he pushes for discovery.

    • scribe says:

      Speaking as one with actual experience with DoJ-Civil on discovery, avoiding the cost of discovery is a big deal. You have never seen or experienced “bureaucratic nightmare” until you’ve been through discovery with DoJ-Civil. For them, it’s a full-time job being dutiful paycheck collectors laying down obstacles – all of them cemented by some caselaw precedent favoring the government from somewhere.

      For example, 20+ years ago, I was involved in a case where one of the witnesses, a government employee, had been transferred to the West Coast, away from the DC area where the case was proceeding. To get that witness’ deposition, the non-government attorneys proposed that “hey, let’s just fly the witness to DC, take the deposition and fly the witness back.” “No can do”, said the DoJ. “Ethics in Government Act (one of them) outlaws that. Everyone has to go to the Coast to meet the witness and take the deposition there.”

      Another witness, same case, got progressively more and more hammered as the deposition continued. The government lawyers were deliberately oblivious to their witness’ inebriation even though the conference room reeked of alcohol and he was very sloppily hitting on the court reporter taking down his testimony. No way we could adjourn or get sober testimony from him. “This is his one appearance, all you get,” said DoJ.

      Now that we’re using electronic databases for documents and have gone paperless, it’s even worse. They are absurdly reluctant to allow anyone near their databases and throw up manifold roadblocks.

      This would be frustrating enough, but for the private party – since it’s all done by lawyers and paralegals billing by the hour – it gets expensive fast. Add to that the charges the database analysis companies (who provide the computer systems that allow review of the electronic documents) . Those are insanely expensive.

      • bmaz says:

        Yes as to all that. And you can never trust that they gave you everything pertinent, even when they do respond.

      • Robot17 says:

        Or (I assume) create a snowstorm of marginal documents that the plaintiff attorneys have to go through.

      • Xboxershorts says:

        How many times did the drunken employee head for a bathroom break and did anyone check the nose for white powder residue?

        Don’t ask me how I know this but, hours of serious drinking often takes additional alternative inputs in order to sustain coherency in conversation….

  8. d4v1d says:

    Given that the Republicans, as it happens, had nothing to fear from Garland as a justice, I can’t decide whether we dodged a proverbial bullet in 2016….or are getting zinged as it ricochets around the room.

    Don’t settle, McCabe. Make ’em talk.

    • timbo says:

      If they offer him enough, he’ll settle. And then hopefully someone in the Congress will have enough power finally to investigate the F out of why the DOJ had to pay out so much money in a case the DOJ itself caused. The big question is whether or not they’ll offer him enough money (and other things?) to make him feel like settling out of court. It’s possible that DOJ might offer him some money and some meaningful heads…and that might possibly stave off a Congressional full-on probing and/or fresh laws, possibly sensitive disbarments of key operatives who might be well-cloaked, etc.

  9. Peterr says:

    By the end of Barr’s tenure, DOJ had altered a McCabe document and submitted it to Emmet Sullivan, another potentially damaging revelation (though one probably outside any imaginable scope of discovery).

    IANAL, but it sure sounds like it would fit as part of a pattern and practice of harassment aimed at McCabe – a pattern that persisted beyond McCabe’s tenure, befitting Trump’s very public attacks on McCabe that persisted past McCabe’s departure.

    (It’s true that DOJ did this to try to pull the wool over Sullivan’s eyes, but to Barr, it was only possible because McCabe was out. It also no doubt pleased the Trump crew to use McCabe against his will and without his knowledge like this.)

  10. Randy Baker says:

    I think your distinction between defending the institution [whether for the better or not is a different issue] and defending Trump is important. I would note, however, that if McCabe accepts a confidentiality agreement in a settlement, then this could pretty well conceal all the official malfeasance in the matter. Might not be a bad outcome for Barr et al whatever DOJ’s intent.

    • bmaz says:

      McCabe is winning so far, he should not agree to confidentiality on anything other than the settlement amount, if that. Just did one of these this week in a rare civil case. Carrier was paying, will have to keep insuring the defendants, and did not want other potential plaintiffs (there are a lot) knowing what could be extracted from them. That was fine, but client refused to stay silent as to anything else, and the carrier agreed reluctantly. The root cases are not similar, but the concept is.

      • Randy Baker says:

        I haven’t followed his career well enough to guess how he will land on this, but I certainly hope that’s what he does. I am pretty sure the vast majority of plaintiff’s sign and take the $.

    • emptywheel says:

      Right: I think that may be why DOJ moved so quickly to settle. Given the update, I’m not sure whether McCabe is willing to play ball. It’s a fair amount of money, I think, but unless he gets a clear exoneration the Trumpsters will be able to float false claims in perpetuity.

      • Savage Librarian says:

        In my own experience, offer #1 was definitely financially appealing and generous. But it did not resolve any of the issues that concerned me.

        Offer #2 involved a public apology (I assumed to me, but possibly more generic) and a much smaller financial offer.

        Offer #3 came after I lost in court. The courtroom experience was mind boggling (i.e. thoroughly disgusting.)
        In the short run, the financial compensation was a pittance. But in the long run, I’ve been compensated financially by the way the pension system works. And I also was able to change policy and ensure staff training by choosing this option.

        Ironically, I also had something published in a trade journal during the course of these events. And it also helped to change an unrelated policy, not just locally, but nationally.

        The most amusing thing to me was that an administrator insisted that the settlement agreement be made public. No worries for me there. I’m not sure what the intentions were, but I think the results were different than expected.

        And then there are the non tangible benefits that occurred. Those include assorted instances of poetic justice that could not be foreseen at the time. Of course, there also is the value of experience I would not have had otherwise.

  11. GKJames says:

    I don’t follow the Garland/Monaco line of thought. The facts that, if disclosed publicly, would embarrass DOJ (assuming that that place does embarrassment) are facts that originated with the previous administration. What better way to draw a line between then and now, if restoring the place to previous standards is the institutionalists’ primary concern? If, instead, the aim is merely to protect high-level career people (colleagues and friends, presumably), Garland/Monaco can’t really be considered institutionalist, can they? In which case, what, exactly, is the difference between DOJ under Barr and Garland? Sure, the Garland style is less thuggish than Barr’s. But in terms of substance?

    • Silly but True says:

      When administrations change, most of the more than 100,000 DoJ employees do not. While protection of the high-level career people might always play a role in DC politics, it’s the far more numerous line personnel which keep an agency running, who would also be implicated. Sometimes the problems stack up after so many years and bad habits of these many line employees get so ingrained that house-cleaning might be necessary. Secret Service sex scandals. SOCOM mercenary behavior that breaks on to front page news. Veterans Affairs malfeasance, et. al.

      Even then, in CIA waterboarding, Brennan and Haspiel were rewarded upwards. And Brennan explicitly defended waterboarding CIA interrogators.

  12. The Old Redneck says:

    I don’t think DOJ can do a confidential settlement. As an arm of the US government, they would at the very least have to give up the info in response to a FOIA request. I have not been through this with a federal agency, but my experience with state agencies is that they cannot keep a lid on their settlements, and the process of authorizing that expenditure is public too.

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