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Impressive watchdog report can’t be the end of the McCabe-Trump saga

by Kris Kolesnik, opinion contributor - 04/16/18 2:10 PM ET

Two questions are paramount in the case of President Trump v. former FBI official Andrew McCabe: 1) Did McCabe act with political motives while investigating Trump and Hillary Clinton, as Trump claims? and 2) Was McCabe fired because of politics, as McCabe claims? Put another way, has the FBI become a political rogue, or is it the victim of politicization? Objectively, this needn’t be a binary choice. It’s possible both occurred.

{mosads}On Friday, the Justice Department Inspector General (IG) released its report on these matters, pertaining to McCabe’s role in an unauthorized leak to a reporter. The IG found that McCabe lacked candor four times when questioned about his role, and he made an unauthorized disclosure to the media. The IG sent his findings to the FBI, the bureau’s Office of Professional Responsibility (OPR) recommended termination, and Attorney General Sessions fired McCabe 26 hours before he could reach the county line of retirement. All that happened in the blink of an eye.

I recently wrote about four issues to look for in advance of the report’s release: 1) Why didn’t Sessions recuse himself from the McCabe decision? 2) Did the IG maintain independence? 3) What were the IG’s findings about McCabe’s conduct? 4) What should be known about OPR’s history in such matters?

Justice Dept watchdog: McCabe leaked to media to “advance his personal interests” https://t.co/WYq6qXSVHg pic.twitter.com/vPmjU705AF

— The Hill (@thehill) April 13, 2018

The IG report provides a bit of insight into the two paramount questions, and a bit more about my four issues. Whatever is not answered needs to be addressed as the process moves forward. The stakes are sufficiently high. Even though this is a lone personnel case, its significance packs a wallop. So, it requires our fortitude in demanding answers.

Let’s examine the report’s findings compared to my four points, and then see where we are in the bigger picture of the paramount questions. First, there is still the outstanding question of why Sessions was involved in the McCabe firing. The matter was within the scope of his recusal, as I laid out in my previous column. This report sheds no new light on that.

Second, the IG report was thorough, objective and very persuasive. A handful of news stories last month suggested the IG recommended firing McCabe, along with OPR. This report clarifies that the IG was a finder of fact only, and presented the findings to the FBI for appropriate action. The report also examines McCabe’s motive for the leak. It was not political, nor was it cultural, i.e., there was insufficient reason to think the influence of the New York field office to go after Clinton played a role. Rather, the motive was his personal interest.

The IG concludes that “McCabe was motivated to defend his integrity and objectivity” in the Clinton Foundation investigation, which was being called into question through press reports.

Trump lashes out after watchdog report: “McCabe was totally controlled by Comey” https://t.co/kfWAStsj3B pic.twitter.com/fctazI6orE

— The Hill (@thehill) April 13, 2018

Despite the professional and thorough work of the IG in this report, a question of independence still lingers: Why did the IG carve out the McCabe portion for the FBI before the final report was issued? The question is relevant because of the perception that the IG might have succumbed to political pressure to have the IG findings for decision-makers before McCabe could retire.

Non-criminal IG reports are based on comparing agency policies and procedures to the actions it finds in an investigation. The same comparison needs to apply to an IG. Did this carve-out fall within the IG’s policy or not? If the IG’s explanation is that the McCabe issue was pressing and decision-makers needed to know, that could be interpreted as caving under political pressure. There may be a legitimate reason for the carve-out, but it needs to be explained.

Third, McCabe’s disclosure to a reporter was unauthorized. The IG also found four instances of lack of candor by McCabe, three under oath and one not under oath. There were no findings of lying, as some had proclaimed. The distinction between lying and lack of candor is important. As I’ve written in the past:

“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.”

Finally, OPR’s decision to play beat the clock with the McCabe case does not comport with its history. Their role will be kept confidential unless McCabe chooses to make it public. That is a good congressional oversight matter. In this case, the IG would not be an appropriate overseer until it can clear up its carve-out matter.

Acting FBI deputy director David Bowdich officially named McCabe’s permanent replacement https://t.co/bCoVSdQbF9 pic.twitter.com/2RxK6LlVKh

— The Hill (@thehill) April 13, 2018

With these four issues examined, let’s return to the over-arching questions, where the rubber really meets the road. Was the FBI the perpetrator or victim of politics? First, did McCabe act with political motives? The answer in this report is no. We await the rest of the IG report about the 2016 election to conclusively answer that question. The motives could be personal again, or political, or some other inappropriate reason. Or, there could be no untoward motives at all.

Second, was McCabe fired because of politics? Every single duck that has surfaced in this matter walks and talks like a political duck. From the Twitter-bashing to the congressional barrages to the nightly assaults from right-wing media, these make last week’s Syria raid look like a walk in the park. This level of politicization has never occurred before in anyone’s memory. Then there’s the continued rope-a-dope Sessions is playing, in apparent violation of his recusal, and his unusual appointment of U.S. Attorney John Huber in lieu of a second special counsel, to apparently save his job. All of this has occurred before the facts are even known. This is how lynch mobs are created.

#BREAKING: Justice Dept gives House Intel Committee original document that set off Russia probe https://t.co/C81ZGbiHnd pic.twitter.com/J9QIcGpcVv

— The Hill (@thehill) April 11, 2018

My point is that the mob mentality has to stop, and reason has to prevail. Disqualified, in my view, are the White House (non-credible and untruthful assaults), Sessions (too many recusal issues) and Congress (Nunes Memo, Steele “criminal referral,” “secret society” conspiracy). They’re all part of the mob. Not disqualified but needing to show leadership are the IG, DOJ minus Sessions, FBI Director Christopher Wray, and the appeals process for McCabe. They need to produce a factual basis for getting back on track.

The McCabe case is of a single person in an otherwise huge government enterprise. But think of the colossal issues symbolized in this case that impact our democracy right now. The politicization of law enforcement is primary among them. The breakdown of congressional checks and balances is another. And a White House that knows not how to govern, and is stuck instead in campaign mode. The rule of law needs to prevail, and the mob needs to disperse. Where will the leaders come from?

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.