New records from the Justice Department watchdog’s investigation into Andrew McCabe point to a possible criminal prosecution of the fired FBI deputy director.
The dozens of pages of previously secret documents detail the FBI’s internal inquiry into the bureau’s then-No. 2, including a May 2017 discussion in which McCabe denied being the source of a leak about former Secretary of State Hillary Clinton and a follow-up meeting in August 2017 where he reversed himself and admitted he’d greenlighted the disclosure.
The records were released in response to a Freedom of Information Act lawsuit brought by Citizens for Responsibility and Ethics in Washington, a left-leaning watchdog group that has been fighting in court for access to the DOJ and FBI documents connected to McCabe’s firing.
DOJ inspector general Michael Horowitz released a report detailing multiple instances where McCabe “lacked candor” with FBI Director James Comey, FBI investigators, and inspector general investigators about his authorization to leak to the Wall Street Journal sensitive information revealing the existence of an FBI investigation into the Clinton Foundation.
Comey said he did not permit McCabe to tell the media, and Horowitz wrote McCabe’s actions were “designed to advance his personal interests at the expense of Department leadership” and “violated the FBI’s and the Department’s media policy and constituted misconduct.”
McCabe was fired and is suing the DOJ for wrongful termination, seeking to regain his job and back pay, claiming President Trump was behind the firing.
The newly released documents reveal McCabe was apologetic during his reversal to Horowitz’s team, telling a
n FBI supervisory special agent questioning him he authorized the article.
“Sir, you understand that we put a lot of work into this based on what you’ve told us … long nights and weekends working on trying to find out who amongst your ranks of trusted people would do something like that,” the special agent said.
McCabe looked down, nodded, and said, “Yeah, I’m sorry.”
The FBI special agent said, “Things had suddenly changed 180 degrees with this” and essentially ended the questioning because of McCabe’s admission, shifting his status from a victim or witness to a possible subject of the investigation.
“It’s either not a leak, or it’s a leak — and then you’re the subject of it,” the special agent said.
The U.S. Attorney’s Office in D.C. is weighing criminal charges against McCabe stemming from Horowitz’s report, and DOJ denied his appeal to avoid criminal charges, but it does not appear a grand jury has returned an indictment.
McCabe’s lawyers have expressed frustration with the DOJ, denying McCabe did anything wrong and saying, “this investigation has been fatally flawed from its inception.” McCabe said he would “absolutely not” accept a plea deal.
The judge overseeing the FOIA case slammed DOJ for its delays.
“Deciding whether you’re going to charge someone with false statements is not a hard case,” D.C. District Court Judge Reggie Walton said in November. “Not factually, not legally, but maybe politically.”
An FBI agent said he didn’t get a good answer from McCabe about why he hadn’t been forthcoming, the new documents show.
“I think you just asked the million-dollar question … Why did he say on May 9th that he didn’t know the source and he didn’t authorize anybody, but then on August 18th, he said he did authorize someone? I don’t know,” the agent said. “He did not give us any words to explain that at that point or at any point.”
McCabe’s legal team said his story changed because he was surprised by and unprepared for the question during his May 2017 interview and was preoccupied with other major events, and that once former FBI Director James Comey was fired later that day he didn’t think about his answers again as he dealt with leading the bureau for a time.
Horowitz concluded McCabe’s account of his May 2017 interview “was wholly unpersuasive” and believed the former FBI leader misled his team too.
“It seems highly implausible that McCabe forgot in May what he recalled in detail during his November inspector general testimony,” Horowitz said. “In our view, the evidence is substantial that it was done knowingly and intentionally.”
