Fired FBI Deputy Director Andrew McCabe has asked the Senate Judiciary Committee to grant him immunity in exchange for his testimony at a forthcoming hearing on a report examining the FBI’s handling of its investigation into Hillary Clinton’s use of a private email server.
“Mr. McCabe is willing to testify, but because of the criminal referral, he must be afforded suitable legal protection,” Michael Bromwich, his lawyer, asked in a Monday letter to Senate Judiciary Committee Chairman Chuck Grassley.
And if he does not get immunity before testifying, McCabe “will have no choice but to invoke his Fifth Amendment privilege,” said Bromwich.
Grassley, an Iowa Republican, had asked McCabe to appear at a committee hearing next week scheduled to review a forthcoming Justice Department inspector general report into how the FBI handled the Clinton email probe.
McCabe was fired by Attorney General Jeff Sessions in March after the inspector general found McCabe lied under oath about his contacts with the media during the 2017 election, and is expected to be named in the highly-anticipated report.
In a May 31 letter, Grassley asked McCabe to testify at the forthcoming hearing, and also asked for two sets of documents.
First, he asked for emails from October 2016 that McCabe and his legal team have said show he told then-FBI Director James Comey that he was working with the media — i.e. what he was fired for.
Grassley also asked for an email sent by McCabe’s legal team on March 2016 to the Justice Department as the FBI official argued not to be fired by Sessions.
Bromwich replied Monday, arguing that since his client has been subject to a referral for a criminal prosecution following his firing, he must proceed to testify with immunity.
McCabe “has a legitimate fear of criminal prosecution based on the criminal referral that has already been made, the irregularities in the process by which he was terminated, and the improper command influence that continues to be exercised by the President of the United States,” wrote Bromwich Monday, adding, “This is a textbook case for granting use immunity.”
Bromwich also told Grassley he would not provide the requested documents, which he said would violate a nondisclosure agreement MCcabe signed.
Grassley wrote immediately back to Bromwich on Monday, saying he would discuss the request with Ranking Member Dianne Feinstein, D-Calif., and noted that even if she agreed with the request, it would require a two-third vote of the committee.
“Before even beginning to consider whether to initiate that process, the Committee would need to know a lot more about the anticipated scope, nature, and extent of your testimony. The Committee could then informally consult with the [Justice Department] to solicit its views before deciding whether to proceed formally,” said Grassley in the letter.
Grassley also asked to provide evidence of the non disclosure agreement, and noted that “no federal funding may be used to draft or enforce any non-disclosure agreement” that does not have exemptions for sharing information with Congress.
“Our position is simple: We will not provide a document the FBI has specifically prohibited us from sharing,” Bromwich wrote back to Grassley on Tuesday. “We take no position on whether the non-disclosure agreement is invalid because it does not contain an exception for disclosures to Congress.”
Grassley immediately responded again — but this time in a letter directly to FBI Director Christopher Wray.
“The NDA Mr. McCabe signed does not include the legally required language to recognize FBI employees’ rights to disclose any matter to Congress which they believe constitutes a violation of law, rule, or regulation, or gross mismanagement, a gross waste of funds, or a substantial danger to public health and safety,” said Grassley in the Tuesday letter.
Grassley then demanded Wray tell Bromwich that “in accordance with federal law, the NDA cannot restrict disclosures to Congress.”
The FBI did not immediately respond to Grassley’s requests.
The back-and-forth letters preview what is sure to be a contentious hearing next week, as the inspector general report is expected to be released within days.
President Trump has repeatedly attacked McCabe, using him as an example of biases among top officials at the FBI and Justice Department.
“What is taking so long with the Inspector General’s Report on Crooked Hillary and Slippery James Comey. Numerous delays. Hope Report is not being changed and made weaker!” the president tweeted earlier Tuesday.
McCabe was also involved in another investigation from the DOJ’s inspector general, who released a report in April finding that the former No. 2 at the FBI “lacked candor” on four separate occasions, three of which were while he was under oath.
The report said the four occasions were related to the authorization of information disclosed by FBI officials to the Wall Street Journal about an investigation into the Clinton Foundation.
The agency’s watchdog sent a criminal referral about McCabe to federal prosecutor in D.C. based on the findings in its report.
McCabe has denied any wrongdoing.
The Senate Judiciary Committee is set to hold its hearing this coming Monday.
