The Justice Department defended its 2018 firing of former FBI Deputy Director Andrew McCabe on Thursday, asking the court to dismiss the wrongful termination lawsuit that was brought by the bureau’s former number two in D.C. federal court in August.
“In the FBI, a lofty position does not lessen the need to abide by the ideals memorialized in its motto [“Fidelity, Loyalty, Bravery”]. To the contrary, the Deputy Director must lead first by example,” the DOJ said of McCabe on Friday evening.
The DOJ emphasized that “after a lengthy investigation, the Department’s Inspector General found, as detailed in a 34½-page report, that Plaintiff had repeatedly lacked candor under oath and not under oath in interviews with its investigators and with agents from the FBI’s Inspection Division.” The department explained that “because of its institutional devotion to these principles, if the FBI finds that one of its Special Agents lacked candor under oath, the standard penalty is removal.”
This summer, McCabe accused Trump of causing his subordinates at the DOJ to participate in an “unconstitutional plan and scheme” to have him fired. McCabe alleged that his removal was part of a broader plan by Trump to “discredit and remove DOJ and FBI employees who were deemed to be his partisan opponents because they were not politically loyal to him” in the suit against the DOJ, Attorney General William Barr, and FBI Director Christopher Wray.
The DOJ reminded the court that FBI Assistant Director Candice Will and Associate Deputy Attorney General Scott Schools both agreed that McCabe had lacked candor and should be removed from his position because of it. The DOJ noted that McCabe was only given seven days to provide responses to his possible removal, which the department admitted “was a departure from the 30-day response period more frequently provided for a proposed removal.” But the DOJ defended this because FBI policy also states that “if there is reasonable cause to believe the employee has committed a crime for which a sentence of imprisonment can be imposed, the advance notice may be curtailed to as little as seven days.” After the FBI’s deputy presented his defenses, then-Attorney General Jeff Sessions fired McCabe on the cusp of his retirement in March 2018.
McCabe argued that Sessions had a “closed mind” when firing him, pointing to alleged comments Sessions made to Wray seven months before McCabe’s firing. But the DOJ wrote that “during those seven months, the Attorney General had the power to remove [McCabe] but did not do so. This demonstrates that, whatever concerns the Attorney General allegedly had about [McCabe’s] continued employment with the FBI, he remained open-minded about the matter.”
In August, McCabe accused Sessions, along with Wray and others, of serving as Trump’s “personal enforcers” rather than “the nation’s highest law enforcement officials” and of catering to Trump’s “unlawful whims” instead of “honoring their oaths to uphold the Constitution.” McCabe asked the judge to compel the DOJ to provide him with back pay, his full pension, and to expunge his record.
DOJ watchdog Michael Horowitz released a report in February 2018 detailing multiple instances where McCabe “lacked candor” with Comey and with investigators about him greenlighting the disclosure to the media of sensitive information related to the FBI’s investigation into matters related to Hillary Clinton. Comey says that he did not give McCabe permission to leak to the media. Horowitz wrote that McCabe’s actions were “designed to advance his personal interests at the expense of Department leadership” and that “McCabe’s disclosure of the existence of an ongoing investigation in this manner violated the FBI’s and the Department’s media policy and constituted misconduct.”
But McCabe alleged that in 2017, Trump was determined to have him fired as soon as possible so he couldn’t get his full retirement benefits, claiming the president wanted to punish him for his “refusal to pledge partisan allegiance to Trump,” for Trump’s “misperception” of his partisan affiliation, and for his “lawful exercise of his First Amendment-protected rights of expression and association.”
“McCabe has now filed this suit challenging his dismissal,” the DOJ wrote on Friday. “He raises more than a dozen claims, but none of them finds its mark.”
The department argued that the Civil Service Reform Act precluded McCabe from bringing these claims against the DOJ and argued that the law “leaves no room for the hodge-podge of statutory and regulatory claims brought by Plaintiff.” The DOJ also dismissed claims by McCabe that his First Amendment rights had been violated.
The U.S. Attorney’s Office in D.C. is weighing criminal charges against McCabe stemming from the Horowitz report, and his appeal in September to avoid criminal charges was denied by the DOJ, with federal prosecutors recommending charges. It does not appear that a grand jury has delivered any indictment yet.
U.S. District Judge Reggie B. Walton of D.C. warned the prosecutors they have until Nov. 15 to charge McCabe or drop the case. McCabe’s lawyers have expressed frustration with the Justice Department’s delays, denying McCabe did anything wrong and claiming that “this investigation has been fatally flawed from its inception.” McCabe said he would “absolutely not” accept a plea deal in that case.
