Federal Law Enforcement

Summary: Office of Inspector General Report on Andrew McCabe’s Firing and Response by McCabe's Lawyer

By Sabrina McCubbin
Saturday, April 14, 2018, 4:44 PM

On March 16, Attorney General Jeff Sessions FBI Deputy Director Andrew McCabe hours before McCabe's retirement, allegedly for showing a lack of candor under oath. A week later, McCabe a response in the Washington Post, calling the accusation “not true.” He stated that he “did not knowingly mislead or lie to investigators,” and that, at worst, he “was not clear in [his] responses.”

On Friday, April 13, the Department of Justice’s Office of the Inspector General (OIG) on the allegations related to McCabe, concluding that he “lacked candor, including under oath, on multiple occasions in connection with describing his role in connection with a disclosure to the [Wall Street Journal]” in violation of FBI policy, and that his “disclosure of the existence of an ongoing investigation in the manner described in this report violated the FBI’s and the Department’s media policy and constituted misconduct.” The report makes no comment on whether McCabe's dismissal was justified.

McCabe’s lawyer, Michael Bromwich, quickly responded with a refuting the claims in the OIG report.

 

OIG Report

The OIG report begins with a summary of the statutes and policies relevant to the activities detailed in the report. It identifies two “lack of candor” offenses in FBI disciplinary policy, “Lack of Candor - No Oath,” (Offense Code 2.5) and “Lack of Candor - Under Oath” (Offense Code 2.6). The former prohibits knowingly providing false information to Bureau superiors or another government agency when “questioned about ... conduct or the conduct of another person.” The latter prohibits “[k]nowingly providing false information in a verbal or written statement made under oath.” Both offenses include not just lying but also “misrepresentations, the failure to be fully forthright, or the concealment or omission of a material fact.”

The report also describes the FBI’s policies in effect at the time regarding media contacts and leaks. The policy allowed only individuals in certain senior positions (including the deputy director) to speak with the media—other members of FBI leadership could do so only when requested or approved by the Office of Public Affairs. In general, Bureau policy prohibited discussion of ongoing investigations with the media, subject to some exceptions, including to protect the public interest or to solicit relevant information from the public.

The report identifies applicable provisions of the United States Attorneys’ Manual (USAM), which also limit the circumstances under which information about an ongoing investigation can be made public. The USAM states that in the case of  “matters that have already received substantial publicity ... the involved investigative agency will consult and obtain approval from the United States Attorney or Department Division handling the matter prior to disseminating any information to the media.”        

The OIG report proceeds to lay out basic background information about McCabe’s case, including information about McCabe’s career at the FBI, the Bureau’s investigation into Hillary Clinton’s use of a personal server, and the investigation into the Clinton Foundation.

The report then delves into the various internal FBI communications and statements made related to the Clinton investigations and the reaction to the Oct. 23, 2016 Wall Street Journal , which reported on the existence of campaign contributions made to McCabe’s wife by a political action committee associated with Democratic Virginia Governor and Clinton supporter Terry McAuliffe. After the article was published, McCabe recused himself from the continuing Clinton email investigation following concerns raised by FBI Director James Comey and FBI General Counsel James Baker out of an “abundance of caution.”

Seeking to provide information to the Journal for a follow-up article, the report writes, McCabe authorized disclosure of a phone conversation between himself and the Principal Associate Deputy Attorney General (PADAG) disagreeing over the handling of the Clinton probes, in order to “counter the ‘incredibly damaging’ narrative” in the upcoming article about the Clinton investigations. The article was on Oct. 30, 2016, and detailed the FBI investigations into the Clinton emails and the Clinton Foundation, as well as disputes between the Bureau and Justice Department officials on how to handle those probes.

The report then describes the subsequent investigations by the FBI’s Inspection Division (INSD) and OIG into the leak, including interviews and other communications with McCabe.

The report identifies four particular instances of “lack of candor” in the aftermath of McCabe’s decision to disclose information to the WSJ, and further describes how McCabe’s decision to provide the information was a violation of FBI policy.

 

Conversation with James Comey - October 31, 2016

McCabe’s conversation with Comey on or about Oct. 31, 2016 is the only instance identified of “lack of candor” that did not allegedly arise from statements made under oath. The report details both Comey’s and McCabe’s accounts of the conversation, and describes them as “starkly conflicting.” According to the report, Comey stated that “McCabe ‘definitely’ did not tell Comey that he had authorized the disclosure about the PADAG call,” and that he had the “impression that McCabe had not authorized the disclosure about the PADAG call, was not involved in the disclosure, and did not know how it happened,” while McCabe “asserted that he explicitly told Comey during that conversation that he authorized the disclosure and that Comey agreed it was a ‘good’ idea.”

The OIG acknowledges that the “only direct evidence regarding this McCabe-Comey conversation were the recollections of the two participants,” but writes that circumstantial evidence supports Comey’s account as the more accurate version. The report highlights Comey’s refusal to confirm the existence of the Clinton Foundation investigation to Congress; Comey’s stated concerns about the volume of leaks, particularly in light the timing of the leak so close to the election; Comey’s concerns about McCabe’s continued participation in the Clinton investigations; and the failure of others interviewed by OIG to corroborate McCabe’s version of events. The report “conclude[s] that McCabe did not tell Comey on or around October 31 (or at any other time) that he (McCabe) had authorized the disclosure,” and states that if he had, the OIG “believe[s] that Comey would have objected to the disclosure.”

 

Interview with FBI’s Inspection Division - May 9 2017

The report also finds that McCabe committed a lack of candor offense in an interview under oath with INSD on May 9, 2017. According to the report, in that interview, McCabe “falsely told the agents that he had not authorized the disclosure to the WSJ and did not know who did.” The report states that “McCabe told [the agents] he recalled the article, yet claimed he had “no idea where [the account of the PADAG call] came from” or “who the source was.” Yet when interviewed by OIG, “McCabe said he did not believe that he denied authorizing the disclosure of the PADAG call during the interview,” but “could not provide any alternative account about what he actually said.”

According to the report “McCabe sought to portray the discussion about the October 30 article as essentially an afterthought by the agents,” which was “flatly contradicted” by the INSD section chief’s account of the interview. The report addresses the possibility that McCabe had forgotten about authorizing the disclosure at the time of his INSD interview but writes that, because of the significance of that authorization, this was “highly implausible.” As a result, OIG “conclude[s] that McCabe violated FBI Offense Code 2.6 (Lack of Candor – Under Oath)” in the May 9 interview.

 

Interview with OIG Investigators - July 28, 2017

The third instance of lack of candor identified by the report occurred in an audio-recorded interview under oath with OIG on July 28, 2017. In that interview, McCabe made the same assertions he made in the May 9 interview with INSD—stating “that he was not aware of [his aide] being authorized to speak to reporters around October 30” and that he did not know where the aide was or what she was doing during the relevant time period.

In a followup interview on Nov. 29, McCabe said he “misspoke” on the matter as a result of being surprised by OIG’s line of questioning. The report determines that, because of McCabe’s understanding of the significance of the investigation and his experience as a law enforcement officer, “his claim that his unequivocal denials under oath, on two occasions within 3 months of one another, were the result of being surprised by the questions” was not credible.

The report further finds that McCabe’s claim that he did not know about his aide’s whereabouts and activities lacked candor. Although McCabe was away from Washington, D.C. at the time, the report notes that “FBI records show that McCabe was in frequent telephone and text communication with [the aide] during that time period and had several communications with her regarding her calls with [the WSJ reporter].”

 

Interview with OIG Investigators - November 29, 2017

The final instance of McCabe’s lacking candor occurred in his second interview under oath with OIG investigators. The report notes that although McCabe called OIG four days after his July interview to say that he believed he may have authorized aides to work with the Journal on the Oct. 30, 2016 article, when he “was given the opportunity during his November 29 OIG interview to address and acknowledge his prior false statements to the INSD and the OIG, McCabe made additional false statements.”

According to the report, during the second OIG interview, McCabe claimed that he had told Comey about his decision to authorize the disclosure  and that he had not denied the disclosure in the May 9 INSD interview, and characterized the May 9 interview as an afterthought. The report finds that all these statements were lacking in candor as the weight of the evidence supports the conclusion that they were false.

 

Violating Media Policies

The final instance of misconduct detailed by the report was McCabe’s decision to disclose information to the Journal in the first place. It notes that “McCabe was authorized to disclose the existence of the CF [Clinton Foundation] Investigation if the “public interest” exception… applied,” but concludes that “McCabe’s decision to confirm the existence of the [Clinton Foundation] Investigation” was done “in a manner designed to advance his personal interests,” and “was clearly not within the public interest exception.”

The OIG report finds that McCabe’s decision to provide the Journal with an anonymous quote rather than a public statement undermines the idea that his actions were done to “reassure the public that the FBI was pursuing the [Clinton Foundation] investigation,” particularly because the information disclosed appeared to be “directed primarily at enhancing McCabe’s reputation at the expense of PADAG.” The report quotes Comey’s testimony, indicating that “Comey disputed the notion that this disclosure was ‘in the best interest of the FBI,’” in part because “the disclosure would confirm the existence of a criminal investigation and harm FBI-DOJ relations.” The report concludes  that the public interest exception did not apply to McCabe’s decision to disclose information and therefore that “his actions violated applicable FBI and Department policies and constituted misconduct.”

 

Statements by Michael R. Bromwich

McCabe’s lawyer, former Justice Department Inspector General Michael Bromwich, responded to the OIG report in a released on Friday. Bromwich expresses concerns about the speed at which the process of McCabe’s dismissal proceeded, describing the “rush to termination” as “nothing short of extraordinary.” He disputes the lack of candor findings, which he also discusses in more depth in a separate statement described below.

The statement connects the OIG report to President Trump, stating that Trump “has publicly demanded results from the OIG, and that Trump’s statements “have applied inappropriate pressure on that office and DOJ more generally.” Bromwich concludes by emphasizing McCabe’s long career, stating that McCabe “served this country with courage and distinction in a series of difficult and important assignment,” and stating that “[i]n the full context of this case, the termination of Mr. McCabe was completely unjustified.”

Bromwich has also released a separate statement titled “,” addressing the five specific claims made by the OIG report.

First, Bromwich addresses the claim that “McCabe violated FBI policy by disclosing sensitive information” by “implicitly acknowledging the existence of an ongoing investigation.” He states that not only did McCabe have “full authority to authorize sharing information with the media,” but that doing so “was an integral and significant part of his job.” He argues that the disclosure to the Journal “was done to protect the institutional reputation of the FBI as a non-political and professional investigative agency, and therefore was squarely within the public interest exception to the FBI’s prohibition on sharing sensitive material.”

Bromwich next addresses each of the four lack of candor claims identified in the OIG report. With respect to McCabe’s Oct. 31 conversation with Comey, Bromwich states that “Comey has an imperfect and inaccurate recollection of the conversation he had with Mr. McCabe,” and that emails mails between McCabe and Comey show McCabe advising Comey that he “was working with colleagues at the FBI to correct inaccuracies in the story.” Bromwich characterizes the OIG’s decision to credit Comey’s testimony over McCabe’s in light of these factors as “inexplicable.”

Regarding the lack of candor alleged in the May 9, 2017 interview with INSD, Bromwich describes the OIG’s report as “incomplete and misleading.” He points out that the interview occurred shortly before McCabe learned of Comey’s firing, and that it is therefore “completely understandable that [McCabe] does not have a clear recollection of what INSD asked him in the moments before this chaos.” Bromwich also notes that when McCabe received a draft statement based on that interview, he “contacted INSD to correct the inaccurate facts.”

Bromwich characterizes McCabe’s interview with OIG investigators on Jul. 28, 2017 as a “break from procedure,” noting that McCabe was requested to “appear immediately” and that his “then-counsel was unavailable.” Bromwich states that “OIG investigators assured [McCabe] they would not ask questions about matters that could involve him,” so that McCabe was surprised when he was asked about the Journal article; at that point, his statements were “intended to delay discussion until counsel was present.” McCabe contacted OIG to correct his statements after the interview, Bromwich notes.

Finally, Bromwich addresses the lack of candor alleged in McCabe’s Nov. 29 2017 interview. He states that McCabe gave “truthful and complete answers,” and reiterates the claim that McCabe “explicitly told Director Comey on multiple occasions, and documented in multiple emails, that he was working with other FBI personnel to correct inaccuracies.”

Bromwich closes by stating that the “OIG’s conclusion is based on a deeply flawed assessment of the evidence against Mr. McCabe” and fails to take into account the evidence that supports him.

***

The report on McCabe is only part of a larger investigation by the OIG. Justice Department Inspector General Michael E. Horowitz is planning to release a broader report on the FBI’s actions during the 2016 election in the coming weeks.