Andrew McCabe Got His Pension and His Cufflinks — But Is that Adequate Recourse for the Country?

As part of a settlement DOJ entered into yesterday to avoid giving Andrew McCabe discovery on the full extent of the politicized campaign against him, DOJ agreed to give him his retirement — and the cufflinks he would normally have gotten upon retiring from Senior Executive Service.

The more substantive parts of the agreement reflect a total capitulation by DOJ: restoration of McCabe’s pension backdated to the time he was fired and partial award of his legal fees for representation from Arnold & Porter.

Defendants will complete all actions necessary to ensure that Plaintiff will be recorded as having entered the federal retirement system effective March 19, 2018, with an annuity commencement date of April 1, 2018, see 5 U.S.C. § 8464(a)(1)(A), 5 C.F.R. § 842.208(b), and will receive:

a. a payment of a lump sum representing all retirement annuity payments, including annuity supplement payments, that he would otherwise have received from the April 1, 2018 annuity commencement date until the day before he is paid his first regular monthly payment, which will be computed in accordance with all relevant statutory and regulatory provisions, and which will not deduct or withhold any amounts for benefits not received or for taxes not owed during the time period specified above, unless such deductions and/or withholdings are required by relevant statutory or regulatory provisions;

b. prospectively from the date of his first regular monthly payment, through the federal retirement system, all periodic annuity payments, including annuity supplement payments, consistent with his March 19, 2018 retirement date;


Defendants agree to pay $539,348.15 to Plaintiff, pursuant to the Equal Access to Justice Act, and in full settlement and satisfaction of all attorney’s fees, costs, and expenses. Payment shall be made to Plaintiff via electronic funds transfer to Arnold & Porter Kaye Scholer LLP, as promptly as practicable, consistent with the normal processing procedures followed by the Department of Justice and the Department of the Treasury, following the dismissal of the above-captioned civil action. This provision does not constitute an admission that Defendants’ position was not substantially justified under 28 U.S.C. § 2412(d)(1)(A).

McCabe will get also an admission that “Executive Branch officials outside the Department” — otherwise known as The President —  “should not comment publicly on ongoing career civil service employee disciplinary matters.” [my emphasis]

WHEREAS, the Parties agree that Executive Branch officials outside the Department of Justice and its components should not comment publicly on ongoing career civil service employee disciplinary matters, except as provided by statute or regulation, so as not to create any appearance of improper political influence;

But McCabe won’t get a concession that numerous people within the chain of command at DOJ and FBI, including prosecutors who pursued a false statements charge against McCabe, bowed to that improper political influence. Nor, as noted, will McCabe get discovery to learn what documents — besides proof that Bill Barr’s DOJ altered McCabe’s notes in an effort to undermine the Mike Flynn prosecution —  DOJ was so determined to avoid disclosing that they settled this case.

All this is being accomplished, legally, by a kind of reset. McCabe’s personnel records will be altered such that there’s no record of his firing.

1. Within 30 days of the execution of this Settlement Agreement, Defendants will rescind their removal of Plaintiff from the FBI and the civil service, and will rescind and vacate former Attorney General Jefferson B. Sessions’s March 16, 2018 removal decision (“DOJ Removal Decision”), and the March 16, 2018 removal recommendation that was submitted to Attorney General Sessions (“DOJ Removal Recommendation”).

2. The Parties agree that Plaintiff’s electronic Official Personnel Folder will reflect that he was employed continuously by the FBI from July 1996 until his retirement on March 19, 2018, as the FBI Deputy Director and a member of the Senior Executive Service (“SES”), after becoming 50 years of age and completing over 20 years of service.

3. Within 30 days of the execution of this Settlement Agreement, the government will remove from Plaintiff’s electronic Official Personnel Folder all documents that reflect or reference his removal, and replace them with documents reflecting that Plaintiff was continuously employed by the FBI until his retirement on March 19, 2018. Defendants will then provide to Plaintiff a copy of his revised electronic Official Personnel Folder.

4. Plaintiff will be deemed to have retired from the FBI on March 19, 2018.

5. Plaintiff will be deemed to have separated from the FBI in good standing for the purposes of 18 U.S.C. § 926C(c)(1).

By my reading, this doesn’t force DOJ Inspector General to revise its report on McCabe to incorporate Michael Kortan’s testimony, one of the problems in the report identified in McCabe’s suit. It doesn’t negate the conflicting Office of Professional Responsibility review results. But it does legally remove the final effect of over a year of retaliation and public badgering by the President, eliminating all trace of Sessions’ last minute firing of McCabe.

I have no doubt this settlement makes a lot of sense for McCabe. He gets the money he earned over two decades of chasing terrorists, spies, and organized crime and the ability to be treated with the respect a former Deputy Director is normally accorded.

But this country is still fighting the aftereffects of a coup attempt that almost succeeded, in part, because the FBI backed off investigating those close to the President, including Proud Boys who played a key leadership role in the attack. We never got fully visibility into the President’s relationship with Russia because Trump throttled that investigation with firings and pardons. And an unrelenting flood of disinformation masks both of these facts.

We know, from the fact that DOJ entered into this settlement (among other things), that Trump badly politicized DOJ. But this settlement allows DOJ to avoid coming clean about all that happened.

27 replies
  1. flounder says:

    We get all these attestations that Garland (and Biden) wants to restore normalcy and depoliticize the DOJ. I don’t see how you do that with cover ups like this, which are de facto continuation of politicization.

  2. Theodora says:

    As I understand it McCabe was fired for leaking the fact that the FBI was investigating the Clinton Foundation to the WSJ, a leak which damaged Hillary and which he was not authorized to make. The IG report described how the Trump-loving agents in the NY FBI were putting pressure on McCabe by accusing him of having a conflict of interest because his wife ran for office as a Dem and had taken money from an organization with ties to Terry McAuliffe, a close friend of the evil Clintons. McCabe allowed that leak in order to pacify them. If that is true McCabe deserved to be fired for putting his own welfare over the integrity of our election. He never leaked the fact that the Trump campaign was also being investigate. Losing his pension might be too much, but he deserved severe punishment.
    The IG report also made it clear that it was pressure from those NY agents that made Comey make his unauthorized public statements about Hillary’s emails which badly damaged her campaign. The one he made in October may well have cost her the election.
    Last I heard the IG was still investigating those FBI agents. Since the media has refused to cover it I have no idea if it was ever concluded.

    • Ginevra diBenci says:

      That NY FBI field office was very connected to Rudy Giuliani in 2016, and seems to have taken most/all of his assertions (attacking Clinton) as gospel truth. They only got more rabid as that year unfolded; a friend of mine who headed a field office up here (CT) got caught up in their furor and lost almost everything, including decades of sobriety. The sense I got of them then was terrifying: a ruthless bunch with enough power to dictate terms to the bureau’s director, who then filtered their way upward with Trump’s favor. Just when you wanted to say they had gone rogue, they were running the country.

  3. earthworm says:

    “3. Within 30 days of the execution of this Settlement Agreement, the government will remove from Plaintiff’s electronic Official Personnel Folder all documents that reflect or reference his removal, and replace them with documents reflecting that Plaintiff was continuously employed by the FBI until his retirement on March 19, 2018. Defendants will then provide to Plaintiff a copy of his revised electronic Official Personnel Folder.”
    Looks to me as though DOJ needs a whistleblower before docs are destroyed.

    As to politicization of DOJ, it seems we would be credulous to think it only started under the Trump administration. This does not mean that we should not push for accountability at the nation’s top law enforcement agency.
    The sprinkling of law enforcement and former military throughout the 1/6 blob shows a penchant for authoritarian “hard-ass” attitudes and thinking that is probably equally likely within FBI and federal prosecutors.

  4. Rapier says:

    Institutional loyalty is the supreme rule in our system, that is if you want to work as a professional. Respect for Mob like Omertà vis a vis ones institution dwarfs any other loyalty. In this case loyalty to members of the institution by shielding them from any and all responsibility. I had thought in this and associated cases of politicization there that someone within the DOJ who would talk out of school and lay out what a shit show it was. I was wrong. Garland passed this down through the chain, if it even came within his purview, and little messes were cleaned up. End of story.

    There are 30,000, or is it 40,000, Facebook employees in the SF area. So far one has talked out of school. This is essentially all you need to know if your thinking our institutions; corporate, government, party, or NGO will save us.

    This is meant to also be a general comment on the work of our host. Someone who doesn’t and maybe can’t work within an institution. Yet I observe, has a seeming confidence that our institutions will do good in the end. It’s a beautiful thing that seems Quixotic to me but I’m 70. Sorry to interrupt.

  5. obsessed says:

    I repeat: Merrick Garland is serving as the personal attorney and fixer for anyone who has ever committed a crime as part of the Executive branch, and especially of DOJ. It’s not refutable. It’s happening every day.

    • bmaz says:

      You are completely full of shit. You may, or may not, agree with how Garland is handling things. Fine. Whatever. But you do nor know or understand squat about how the criminal justice system really works, nor how it really functions.

      • Badger Robert says:

        I associate myself with the remark published above by our esteemed blog supervisor, however it could be stated with more emphasis on the excrement portion.

      • Mojo Risin’ says:

        There are two factors in play; grand juries take time, and more time in complex cases; and Wray is a Republican and an active member of the Federalist Society. We’re accustomed to performative, reactionary political narratives, indeed, successfully conditioned towards seeing all politics as such, meaning the mentally slower and more biased of us forget these two important facts.

  6. mospeck says:

    Fuck the cufflinks and screw the pension. McCabe fought the great fight and he is an American hero.
    Andrew, maybe give the cufflinks and pension back, or to charity, or better yet, to the young rocket startups.
    That way some of younger ones of us can get away from this rock.
    Escape from its gravimetric pull ..gotta gotta get away :)
    Marcy, I’m too creakingly old, jaded, dead end cynical and looks like only way out of our present predicament is up. We were never all made for this one world. Jeez, my kid’s gonna be a lawyer. kill me now already

  7. gmoke says:

    It is my observation from a great distance that Trmp et alia deliberately dismantled as much of USAmerica’s counter-intelligence capability as they could lay their hands on. Haven’t seen much commentary on that observation but Andrew McCabe’s insertion into the “barrel” is definitely part of it.

    If my observation is correct, would be good to have a detailed rundown of who got booted from where and, at least on the surface, why.

  8. bmaz says:

    Kind of held my tongue…mostly…yesterday until I chewed on this more. When Marcy says it was a “total capitulation”, she was being fairly understated. It is a massive win for McCabe. It is everything and the kitchen sink including over a half mil to Arnold and Porter. We may never know, but there is a pretty fair chance that resolves all of McCabe’s remaining fees with the firm. You simply do not see that every day, usually even a favorable settlement agreement specifies that each side bear their respective fees and costs. At the worst, a stipulation to leave that one last issue to the court after application and argument. This is remarkable. Also, all should keep in mind that McCabe was about McCabe and his family interests. This case was not a vehicle for a lot of other items and interests, and if he had made it so, he likely would not be sitting pretty today. Anybody who calls this a “coverup” is clueless. It very much is not.

      • bmaz says:

        Eh, the caption was McCabe v. Garland et. al. It was not McCabe and the Hopes And Dreams of the Internet v. Trump, Barr et. al.

        McCabe had a legitimate complaint that was germane to him and his family. It was not performative litigation for the rest of us. I kind of respect how he conducted that, and how the government resolved it. But McCabe was the “real party in interest”, not the rest of us. And he did fine.

        • Badger Robert says:

          To make the circle complete, some people who authenticated TFG’s delusions, and kept the inserrection going, have to be punished and lose their careers, That’s the tough part.

  9. newbroom says:

    The sad part is that this story won’t be pushed in front of the masses in its proper context and detail. Well, a one sad part. :(

  10. e.a.f. says:

    when I read McCabe had won, it gave me a good laugh. He Won. He gets his records straightened out, he gets his pension, even got his legal fees paid for.

    An employer who fires a worker two days before his pension kicks is a nasty piece of business. That pension was worked for, and much harder than the politicians ever worked.. When employers, as in this case revoke pensions, they are also defunding the families of the workers.

    McCabe having his legal fees paid, is a message to the people who wronged him. I’m sure trump and sessions aren’t too happy about the outcome, but they can stew in their own juices, they lost.

    Its up to the new government in office to “clean up” the DOJ.

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