Federal Law Enforcement

The Low Tragedy of Andrew McCabe

By Stewart Baker
Saturday, April 14, 2018, 5:24 PM

The Justice Department Inspector General’s report on Andrew McCabe, the fired Deputy Director of the FBI, is as scathing as press reports say. According to the Inspector General, McCabe leaked dirt on the Justice Department, then misled FBI Director James Comey about the source of the leak, then misled leak investigators over and over again. It’s hard to read the report and feel that McCabe’s firing wasn’t earned. And yet, for all that, there’s a bit of low tragedy in McCabe’s tale. For he was disgraced not because he was evil, but because events conspired to turn his talent for regular old government information management into a fatal flaw.

What McCabe did is probably indistinguishable from the kind of lying and half-lying that happens in every corner of government every day of the week. He would have gotten away with it if the FBI and Justice Department had not become the focus of historic partisan ire.

Here’s an overview of the mess, as the Inspector General’s report lays it out. As I’ve previously written, the financial ties between McCabe’s wife’s campaign and Hillary Clinton’s circle became an issue in the last week or two of the presidential campaign, when the Wall Street Journal published a story about those connections. McCabe had not recused himself from the Clinton investigations until the story ran, and he seems to have fought recusal even after that. While that struggle was underway, the Journal called to say it was going to run another story, saying that McCabe had ordered a standstill in one of the Clinton investigations. That would have been a career disaster. In an effort to portray himself as anything but a stooge for the Clintons, McCabe threw someone else to the wolves. He authorized an FBI public affairs officer and his special counsel to leak a dramatic account of McCabe fighting off a Justice Department effort to stall or kill the FBI’s Clinton Foundation investigation. The counsel on whom McCabe relied for this shivving of the Justice Department was Lisa Page, the FBI attorney whose text messages to Peter Strzok would soon become notorious—and eventually cost McCabe his pension.

Initially, though, all went well. Page succeeded. McCabe’s version of the conversation ran in the Journal’s story, and it made him the hero, standing firm against political interference:

According to a person familiar with the probes, on Aug. 12, a senior Justice Department official called Mr. McCabe to voice his displeasure at finding that New York FBI agents were still openly pursuing the Clinton Foundation probe during the election season. Mr. McCabe said agents still had the authority to pursue the issue as long as they didn’t use overt methods requiring Justice Department approvals.

The Justice Department official was “very pissed off,” according to one person close to Mr. McCabe, and pressed him to explain why the FBI was still chasing a matter the department considered dormant. ...

“Are you telling me that I need to shut down a validly predicated investigation?” Mr. McCabe asked, according to people familiar with the conversation. After a pause, the official replied, “Of course not,” these people said.

Immediately after the story appeared, Comey talked to McCabe about the leak. According to Comey, McCabe seemed to have no idea where the leak came from. (McCabe claims he told Comey the leak was his doing and got at least passive approval, but the Inspector General report resolves this dispute persuasively in Comey’s favor.) In the next few days, McCabe continued to play the role of leak victim, reading the Riot Act to other parts of the bureau over leaks without disclosing his part. The crisis passed, and by the time the Trump administration took office, McCabe must have assumed that it was all in the rearview mirror.

But the Trump administration’s ferocious response to leaks, including FBI leaks, led to an internal investigation. By May of 2017, the investigation was going strong. And it had expanded to include the Journal’s pre-election leak. A group of leak investigators met with McCabe. Again McCabe dissembled, this time under oath. It’s unclear whether McCabe flat-out lied or just left the investigators with the impression that he knew nothing about the leak. The investigators, though, were clearly misled. They wrote up their notes and asked McCabe to execute a sworn statement that that he didn’t know the source of the leaks. Instead, McCabe found months’ worth of reasons not to respond to their request.

Again, it looked as though McCabe would skate.

Then the roof fell in. The Justice Department Inspector General had opened an investigation into the actions of Justice and the FBI around the 2016 election. They discovered the Strzok-Page text messages. On Friday, July 28, they went to McCabe for help in understanding the texts before confronting Strzok and Page with the evidence. They asked McCabe to explain a message in which Page told Strzok that Yates’s deputy was leaking attacks on the FBI. Her reaction: “Makes me feel WAY less bad about throwing him under the bus in the forthcoming CF article.”

And there it was. Page knew a bad Clinton Foundation story was coming, and she was was proud of her role in how it would hurt Yates’s office. The only question was whether Page was going down alone for the leak or whether she would take McCabe with her. McCabe struggled to mislead the investigators about his role in the leak without lying directly, telling the investigators that he didn’t know “CF” stood for Clinton Foundation and that he wasn’t in town at the time, so he hadn’t known what Page was doing about the story.

Over the weekend, McCabe must have realized that that position was untenable. Page had been authorized by McCabe to leak; no way would she fail to say that when interviewed. So on the next Tuesday, McCabe sucked it up, calling the Inspector General’s office to walk back his claim of ignorance. But softly, saying “he may have authorized” Page to leak. The Inspector General’s report bristles with suspicion that McCabe spent the weekend getting his story straight with Page—and revealing to her that the Inspector General had her text messages. In any event, even before she was confronted with the texts, Page admitted to being a source of the leak shortly after McCabe admitted that he asked her to do it.

But according to the Inspector General, even though he’d admitted approving the leak, McCabe had a new story that would justify his actions. By this time, the summer of 2017, Comey had been fired. Now McCabe was claiming that Comey had approved, or at least acquiesced, in the leak when McCabe admitted his role in it the day the story ran. He also claimed that other FBI managers knew he was the source, that the leak investigators had not really asked him directly about the Journal leak when they interviewed him, that he hadn’t gotten around to reviewing the statement they sent him to sign, and that his initial dissembling to the Inspector General when confronted with Page’s messages was simply surprise at having the subject come up unexpectedly. All those claims, the Inspector General persuasively argues, were a load of self-serving BS.

So, what should we think of Andrew McCabe? He’s certainly no hero. But he’s no sacrificial goat, either. Assuming he did what the IG says he did, the recommendation that he be fired is completely understandable. Still, the things McCabe did are not uncommon in government, even—perhaps especially—among talented and effective officials. His bad luck, and his failing, is that the issue kept coming back month after month, and his efforts to give misleading but not quite false answers grew ever more strained. It’s hard not to feel some sympathy. If the times had been different, he might have ended his service as a respected bureaucrat like many others—with a reputation for being talented and a bit slippery.

All that said, I can’t escape this thought: Was McCabe’s failing really any different from Michael Flynn’s? Flynn has been accused in the press of many things. But the crime he actually pled to looks a lot like McCabe’s—a lie to avoid taking political blame for a conversation. In Flynn’s case, this took the form of a conversation with the Russian ambassador that touched on sanctions, perhaps only lightly. Flynn denied discussing them at all. Some of the agents interviewing him apparently thought he might genuinely not remember the conversation clearly. The agents of course did remember, since they almost certainly had a transcript. Their interview with Flynn feels unfair—a trap for the unwary. Ironically, McCabe apparently played a big role in setting the trap, calling to put the meeting on Flynn’s schedule without alerting him to its purpose, and I doubt he wasted much time agonizing over the possibility that Flynn might be prosecuted as a felon for committing what in other circumstances would be a venial bureaucratic sin.

Like all good tragedies, then, McCabe’s is seasoned with irony, though it’s hard to believe that either McCabe or Flynn will savor it.