A federal judge ruled fired FBI Deputy Director Andrew McCabe’s wrongful termination lawsuit against the Justice Department should be allowed to move toward discovery, rejecting the Trump administration’s efforts to dismiss the case brought by the key Russia investigation leader.
Judge Randolph Moss, who has served on the U.S. District Court for the District of Columbia since a 2014 nomination by then-President Barack Obama, issued a 45-page ruling on Thursday rejecting the Justice Department’s motion to dismiss McCabe’s lawsuit and moving it toward summary judgment. Moss argued that it was too soon to decide whether the government or McCabe was right, and therefore, the case should proceed for now.
“The Complaint asserts five claims based on alleged violations of the First Amendment and the due process clause of the Fifth Amendment,” Moss wrote. “Defendants move to dismiss, in part, for lack of subject matter jurisdiction and, in part, for failure to state a claim upon which relief can be granted and move, in the alternative, for summary judgment, in part. In Defendants’ view, the Court lacks jurisdiction over Plaintiffs’ statutory and regulatory claims, while his constitutional claims fail on both the law and the facts. Most significantly, Defendants contend that Plaintiff was not fired because of his perceived political affiliation, vote in the 2016 presidential election, or refusal to pledge personal loyalty to the President but because he lacked candor (including under oath) in an investigation conducted by the FBI’s Inspection Division and the DOJ’s Office of Inspector General.”
Moss added: “In short, it is too early in the case to determine which, if either, of the parties’ competing versions of the relevant facts is correct. The Court will, accordingly, DENY Defendants’ motion and will set a schedule for discovery and further proceedings.”
DOJ Inspector General Michael Horowitz released a report in 2018 detailing multiple instances in which McCabe “lacked candor” with FBI Director James Comey, FBI investigators, and inspector general investigators about his authorization to leak sensitive information to the Wall Street Journal that revealed the existence of an FBI investigation into the Clinton Foundation. Horowitz’s report concluded that “the evidence is substantial” that McCabe misled investigators “knowingly and intentionally.” Then-Attorney General Jeff Sessions fired McCabe in March 2018, just before he was set to retire.
Comey said he did not authorize McCabe to tell the media, and Horowitz wrote that McCabe’s actions were “designed to advance his personal interests at the expense of Department leadership,” “violated the FBI’s and the Department’s media policy and constituted misconduct,” and were “an attempt to make himself look good.”
In August 2019, McCabe accused Trump of causing his subordinates at the DOJ to participate in an “unconstitutional plan and scheme” to have him fired. McCabe said that his removal by Sessions 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. McCabe asked the judge to compel the DOJ to provide him with back pay, his full pension, and to expunge his record.
The Justice Department defended its 2018 firing of McCabe and sought to dismiss his lawsuit last November.
“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 Justice Department said of McCabe. 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 judge said Thursday, “Defendants might ultimately show that the Attorney General was not swayed by the President’s tweets and comments, but Plaintiff is entitled to test his claim of improper influence through discovery and the usual rules of civil litigation.”
“For present purposes, the Court need not reach the question whether Attorney General Sessions lacked authority to act because Plaintiff’s alternative theory suffices to state a claim. Under that theory, the President’s attacks on Plaintiff … infected the process and left senior DOJ management with only one palatable option: to remove Plaintiff before the ninety days expired,” Moss wrote. “In other words, Plaintiff does not contend that Attorney General Sessions was personally biased against him but, rather, alleges that the President wanted Plaintiff gone before his retirement benefits vested, and the Attorney General followed what he would have understood to be an unmistakable direction from his boss. The question before the Court is not whether Plaintiff’s factual allegations are correct but only whether he has alleged a plausible claim that raises a disputed issue of material fact. Plaintiff easily clears that modest hurdle.”
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.” But the DOJ reminded the court that FBI Assistant Director Candice Will and then-Associate Deputy Attorney General Scott Schools both agreed that McCabe lacked candor and should therefore be removed from his position. The Justice Department told the court 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.”
The Justice Department announced in February that it would not be pursuing criminal charges against McCabe.
