To justify McCabe firing, DOJ watchdog report must provide answers

Sometime this month, a report should be released by the Justice Department inspector general into the FBI’s investigation of the Clinton Foundation, and former FBI Deputy Director Andrew McCabe’s involvement. The Bureau’s Office of Professional Responsibility (OPR) reportedly concluded that McCabe should be fired for an unauthorized disclosure to the media, and for lack of candor with IG officials. The firing occurred 26 hours before he was to retire with full pension benefits. Attorney General Jeff Sessions rendered the verdict.

In anticipation of the report’s release, here is what we need to ask and know: (1) Sessions’ role in firing McCabe, (2) Justice Department IG Michael Horowitz’ independence, (3) McCabe’s conduct, and (4) OPR’s judgments.

Before taking these one at a time, let’s understand the context.

{mosads}There has never been an FBI personnel case this politicized. And that’s the first prerequisite for blowing up any factual predicate for fair and impartial justice.

I oversaw the FBI for 10 years of my career. I didn’t know McCabe, but I’m looking at his case now through the prism of experience. McCabe was the subject of extraordinary harassment by then-candidate Trump during the presidential campaign. He’s been tweet-slapped incessantly. His wife has been harassed and mocked. Every mention of McCabe became a talking points memo for one-third of the nation to bash him.

Justice Dept misses subpoena deadline for records on Clinton email probe https://t.co/mJ3HwRM6OG pic.twitter.com/4pWJrQpDzy

— The Hill (@thehill) April 6, 2018

Think of it this way: The macro impact of a presidential tweet can wreak havoc on world stock markets. Imagine the micro impact of such tweets on a mere government employee. If that’s not enough, Republican senators and congressmen piled on ad nauseum at hearings and other public venues. All that was done before the facts are even known.

Here’s what to look for and ask about in this report:

1. Sessions’ Role:

Why wasn’t Sessions recused from deciding McCabe’s fate? He had recused himself “from any existing or future investigations of any matter relating in any way to the campaigns for president of the United States.” The McCabe matter was a topic in the campaign, and investigating his role in allowing FBI personnel to discuss that probe with the press appears to fall within the scope of the recusal.

Sessions is walking a tightrope between getting fired by Trump and succumbing to pressure from his former Republican Hill colleagues, versus following DOJ protocol, as he did when he recused himself, and when he declined to appoint a second special counsel. But in firing McCabe, he might just have crossed the line and caved to political pressure to save his job, but not his credibility.

McCabe’s wife rips Trump for spreading “destructive lies” about her family https://t.co/poDavd7o70 pic.twitter.com/D8YTjnzafS

— The Hill (@thehill) April 3, 2018

It seems there might have been a rush to judgment. These cases can typically take months and months to resolve, if not years, once appealed. The cases are governed by the FBI’s Manual of Administrative Operations Proceedings (MAOP) and the Table of Offenses and Penalties. They allow for consideration of what the charges are, how serious are they, is it a first-time offense, and comparison to other cases. Politics is not allowed to infect the process. These issues need to be considered first before a legitimate judgment can be rendered. Were they?

2. Horowitz’s independence:

While I was in the IG community, Horowitz had a solid reputation for competence and integrity. That said, a question needs to be answered: Why was the McCabe section of his report flagged prematurely to the FBI? Was it for a legitimate reason, or was it because this was a hot political/public issue?

I worked on a case at the Interior IG’s office in 2008 in which Interior Department employees responsible for collecting taxpayer-owed royalties from oil and gas companies were literally and figuratively in bed with those contractors. Our IG carved out the personnel part of the report before it was published so the secretary could take action to stop the bleeding right away.

In McCabe’s case, he was already on the beach awaiting retirement and could do no harm. Why did Horowitz feel obliged to flag the McCabe section to the director before publication, and before the magic hour of McCabe’s retirement? One could perceive that Horowitz caved to political pressure. There might be a good reason, but it needs to be articulated.

3. McCabe’s actions:

According to Sessions, McCabe was tagged by the OIG and FBI OPR reports for making “an unauthorized disclosure to the news media and lacked candor — including under oath — on multiple occasions.

“Mueller will drop midterm Russia bombshells on GOP Congress” https://t.co/iUB5ebkTSM pic.twitter.com/cnkv7KRSK3

— The Hill (@thehill) April 5, 2018

We don’t know the actual charges and circumstances yet. In an administrative procedure, false statements (lying) require proof of intent. It’s very objective but harder to prove. A lack of candor charge is much more subjective. Essentially, it means one wasn’t fully forthcoming in answering a question and withheld some relevant information. The standard is to show the subject knowingly withheld the information. Government employers are using it more and more often with their employees because they believe it is easier to demonstrate. But case law hasn’t exactly been on their side, and lack of candor cases have been challenged and reversed.

McCabe has a lawyer who understands this history, and specifically as it relates to FBI employee adjudication. It might take months before these issues are resolved.

4. OPR history:

The FBI’s OPR has a reputation for going after rank and file with an iron fist, but senior managers too often get off scott-free. This was the subject, for example, of reports and testimony by a former OPR unit chief, John Roberts, who was retaliated against by the Bureau for daring to point it out.

In the McCabe case, the opposite has occurred — the number-two in the Bureau got nailed. What’s up? Is it because of the hyper-politicization of the case, or is this a new day in the FBI?

When I conducted FBI oversight, senior managers were rarely, if ever, held accountable. Finally, a very senior one is. Question is, is it justified, or is it politics? Hopefully we’ll know later this month.

Kris Kolesnik is a 34-year veteran of federal government oversight.  He spent 19 years as Senior Counselor and Director of Investigations for Sen. Charles Grassley. Kolesnik then became executive director of the National Whistleblower Center. Finally, he spent 10 years working with the Department of the Interior’s Office of Inspector General as the Associate Inspector General for External Affairs.