On Feb. 14, 2020, the Department of Justice (DOJ) sent a letter to the attorneys for former FBI Deputy Director Andrew McCabe, notifying them that the department would not be pursuing criminal charges against McCabe for matters raised in a referral made by DOJ Inspector General Michael Horowitz.
The letter, signed by J.P Cooney, chief of the Fraud and Public Corruption Section, and Molly Gaston, an assistant U.S. attorney from the same division, stated, “We write to inform you that, after careful consideration, the Government has decided not to pursue criminal charges against your client, Andrew G. McCabe, arising from the referral by the Office of Inspector General.”
The letter closed by noting, “Based on the totality of the circumstances and all of the information known to the Government at this time, we consider the matter closed.”
McCabe’s attorneys, Michael Bromwich and David Schertler, issued an initial statement:
“We learned this morning through a phone call from the D.C. U.S. Attorney’s Office that was followed by a letter that the Justice Department’s criminal investigation of Andrew McCabe has been closed. This means that no charges will be brought against him based on the facts underlying the Office of the Inspector General’s April 2018 report.”
Bromwich issued a lengthier statement shortly thereafter, in which he noted, “We believe the OIG report utterly failed to support the decision to terminate Mr. McCabe.”
McCabe then made an appearance on CNN—where he is a contributor—and stated that being “unfairly branded a liar, because that was the desired outcome by the president” had been “one of the most sickening and demeaning experiences” of his life.
But the IG report on McCabe tells a very different story.
Unauthorized Disclosure to Reporter
McCabe was fired on March 16, 2018, after both the Office of Inspector General and the FBI’s Office of Professional Responsibility (OPR) concluded that McCabe “had made an unauthorized disclosure to the news media and lacked candor—including under oath—on multiple occasions,” then-Attorney General Jeff Sessions said at the time.
According to IG Horowitz’s report on McCabe, released in February 2018, the former deputy FBI director lied three times under oath—and also lied to then-FBI Director James Comey—regarding his authorization of leaks to The Wall Street Journal in late October 2016.
The OPR recommended firing McCabe, but internal FBI documents suggest that it was then-Deputy Attorney General Rod Rosenstein who fast-tracked the process. According to the OPR, the bureau would have been unable to reach a formal resolution before McCabe’s retirement on March 18, 2018, without Rosenstein’s intervention.
The “unauthorized disclosure to the news media” involved then-Wall Street Journal reporter Devlin Barrett (now with The Washington Post). On Oct. 23, 2016, The Wall Street Journal published an article by Barrett headlined “Clinton Ally Aided Campaign of FBI Official’s Wife,” which raised questions regarding McCabe’s level of impartiality in the Clinton email investigation.
The next day, Barrett emailed the FBI’s assistant director for public affairs, noting that he was pursuing a follow-up article. Barrett had heard from sources that McCabe had allegedly instructed agents to effectively “stand down” on the ongoing investigation of the Clinton Foundation. According to the IG report on McCabe, Barrett’s email to the assistant director said that he’d been told that “McCabe himself gave some instruction as to how to proceed with the Clinton Foundation probe, given that it was the height of election season and the FBI did not want to make a lot of overt moves that could be seen as going after [Clinton] or drawing attention to the probe.”
Barrett asked if these reports were accurate and if there was “anything else I should know.”
According to the IG report, “Barrett had sources who were adamant that McCabe gave a purported order to ‘stand down’ on the CF [Clinton Foundation] Investigation before the 2016 presidential election, implying that McCabe wanted to shut down the investigation for improper reasons.”
The IG report notes that by Oct. 25, 2016, “McCabe had been notified that Barrett was working on a follow-up story to the October 23 article that would cover McCabe’s oversight of the CF Investigation and potential connections with McAuliffe campaign contributions to McCabe’s wife.”
It was at this point that McCabe authorized his special counsel, FBI lawyer Lisa Page, to speak with Barrett about his follow-up story. Page told the IG that “the authorization from McCabe was done orally and it was ‘pretty general.’”
Page spoke twice with Barrett on Oct. 27, 2016, and then once on Oct. 28, 2016. According to the IG report, Page disclosed to Barrett details about an Aug. 12, 2016, phone call between McCabe and the principal associate deputy attorney general (PADAG).
The IG report notes that one of the purposes of Page’s disclosure was to “rebut a narrative that had been developing following a story in the WSJ on October 23, 2016, that questioned McCabe’s impartiality in overseeing FBI investigations involving former Secretary of State Hillary Clinton, and claimed that McCabe had ordered the termination of the CF Investigation due to Department of Justice pressure.”
The disclosure, authorized by McCabe and made by Page, “effectively confirmed the existence of the CF Investigation, which then-FBI Director Comey had previously refused to do.”
Barrett’s follow-up article, “FBI in Internal Feud Over Hillary Clinton Probe,” was published on Oct. 30, 2016. It described how the FBI was revisiting the Clinton emails in the days prior to the 2016 presidential election. Page’s account of the Aug. 12 call, along with information regarding the handling of the Clinton Foundation investigation, was also included in Barrett’s article:
“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 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.”
The IG report notes that on Oct. 30, 2016, following the publication of Barrett’s second article, McCabe contacted two FBI executives—the head of the FBI’s Washington Field Office and the head of the New York Field Office. According to the report, McCabe admonished these officials for the “leaks contained in the October 30 WSJ article about the CF Investigation.”
Notably, these were leaks that McCabe had authorized Page to make to Barrett, and as the IG report noted, “at no time did McCabe disclose to either of them that McCabe had authorized Special Counsel to disclose information about the CF Investigation to the WSJ reporter.”
McCabe reportedly told the head of the Washington Field Office to “get his house in order” regarding the leaks that were disclosed in Barrett’s article.
McCabe’s Denial to Comey
The following day, on Oct. 31, 2016, Comey had a conversation with McCabe regarding the article. The IG report notes that McCabe claims to have admitted to Comey that he authorized the leak regarding the Aug. 12 conversation, and also admitted that he hadn’t informed Comey prior to doing so.
Comey had a differing recollection of the matter. According to the report, Comey said that he had “discussed the issue with McCabe after the article was published, and at that time McCabe ‘definitely did not tell me that he authorized’ the disclosure of the PADAG call.” Instead, Comey said that McCabe gave him the exact opposite impression.
“I don’t remember exactly how, but I remember some form or fashion and it could have been like ‘can you believe this crap? How does this stuff get out’ kind of thing? But I took from whatever communication we had that he wasn’t involved in it,” Comey said about his conversation with McCabe.
“I have a strong impression he conveyed to me ‘it wasn’t me boss.’ And I don’t think that was by saying those words, I think it was most likely by saying ‘I don’t know how this shit gets in the media or why would people talk about this kind of thing,’ words that I would fairly take as ‘I, Andy, didn’t do it.’ And I actually didn’t suspect Andy, after conversations with [my chief of staff], my worry was, was his aide [Special Counsel] doing it.”
On May 9, 2017, Deputy Attorney General Rosenstein wrote a memo to then-Attorney General Sessions, recommending that Comey be fired.
McCabe’s ‘Lack of Candor’
That same day, McCabe was being interviewed under oath by agents from the FBI’s Inspection Division (INSD) regarding the leaks disclosed in Barrett’s article. According to the IG report, McCabe lied to INSD agents regarding his participation in these leaks.
The report notes, “According to INSD-SSA1’s contemporaneous notes and testimony to the OIG, McCabe told them that he had ‘no idea where it came from,’ that was ‘who the source was’ who disclosed the account of his August 12 call with PADAG to the WSJ.” The interviewing agents “viewed McCabe as ‘the victim’ of the leak and McCabe had told the INSD agents that he did not know how this happened.”
On July 27, 2017, Horowitz notified Rosenstein and special counsel Robert Mueller of a large number of newly discovered texts between McCabe’s special counsel Page and FBI agent Peter Strzok. This discovery resulted in Strzok being removed from the special counsel investigation. Horowitz had found the texts some time earlier–likely on or before July 14, 2017.
On July 28, 2017, McCabe was interviewed under oath by Horowitz as part of his ongoing review of “various FBI and Department actions in advance of the 2016 Election.” The primary purpose of Horowitz’s interview was to determine what McCabe knew regarding the existence of the Page–Strzok text messages.
Some of the texts discovered by Horowitz suggested that Page had provided the information concerning McCabe’s Aug. 12, 2016, call to Barrett. After Horowitz showed the texts to McCabe, the following exchange took place:
OIG: “Which we’re not sure what [CF] relates to, perhaps Clinton Foundation. Do you happen to know?”
McCabe: “I don’t know what she’s referring to.”
OIG: “Or perhaps a code name?”
McCabe: “Not one that I recall, but this thing is like right in the middle of the allegations about me, and so I don’t really want to get into discussing this article with you.”
McCabe: “Because it just seems like we’re kind of crossing the strings a little bit there.”
OIG: “Was she ever authorized to speak to reporters in this time period, was [Special Counsel]?”
McCabe: “Not that I’m aware of.”
Later in the interview, when faced with additional texts that provided further indication that Page was talking to Barrett, McCabe told Horowitz: “I was not even in town during those days. So I can’t tell you where she was or what she was doing.”
Four days later, on Aug. 1, 2017, McCabe apparently thought differently and placed a call to an assistant inspector general (AIG); he did not contact Horowitz. The AIG summarized McCabe’s call in a same-day email:
“McCabe stated that he believes that [Special Counsel] may have been authorized by him to work with [AD/OPA] and to speak with the WSJ for the late October article. He said he had worked with [Special Counsel] on a previous WSJ article earlier in the month when they spent the day trying to correct inaccuracies. At the time the second article was being prepared, McCabe was out of town He believes he may have authorized [Special Counsel] to work with [AD/OPA] and speak to Devlin Barrett (the WSJ reporter) because she had previously worked with McCabe on the issues raised by his wife’s political campaign and was very familiar with those issues. … He said [AD/OPA] would be familiar with Special Counsel’s role and authority to speak.”
Meanwhile, on Aug. 7, 2017, INSD investigators, who were not at this time aware of the texts between Page and Strzok, interviewed Page regarding her contact with Barrett in October 2016. The IG report notes that Page “told INSD agents under oath that she was a source for the disclosure of the account of the August 12 McCabe-PADAG call, the disclosure was fully authorized by McCabe, and Special Counsel and AD/OPA provided the information to Barrett in a telephone call from the FBI OPA office.”
The report notes that Page provided this same account to the IG’s office in “two subsequent interviews on September 7 and October 26, 2017,” and also signed a sworn statement to this effect on Aug. 15, 2017.
On Aug. 18, 2017, McCabe was again interviewed by INSD agents after they were told by Page that “it was McCabe who had authorized the conversation with Barrett in advance of the October 30 WSJ article.”
According to notes from one of the interviewing INSD agents, McCabe this time admitted to authorizing Page to make her disclosures to Barrett, saying, “Yep, I did,” although the agent also noted that McCabe “said he did not recall specifically doing it.”
This same agent told the IG: “I remember saying to him, at, I said, sir, you understand that we put a lot of work into this based on what you’ve told us. I mean, and I even said, long nights and weekends working on this, trying to find out who amongst your ranks of trusted people would, would do something like that. And he kind of just looked down, kind of nodded, and said, yeah, I’m sorry.”
The IG report noted that following this Aug. 18, 2017, interview, INSD officials “became concerned that there was a significant question of whether Deputy Director McCabe had testified truthfully to INSD on May 9. INSD-Section Chief told us that she recommended turning the matter over to the OIG.”
The assistant director for the INSD agreed with this assessment and “referred the matter to the OIG.” The IG’s office “formally accepted the referral on August 31, 2017.”
On Nov. 29, 2017, Horowitz again interviewed McCabe, this time in regard to his Aug. 1, 2017, call to the AIG. McCabe told Horowitz, “I remember authorizing [Special Counsel] and [AD/OPA] to talk to the Wall Street Journal.”
When Horowitz noted that McCabe’s prior statement “I can’t tell you where she was or what she was doing” was inaccurate, McCabe told the IG:
“Yeah, and as I’ve said before, and she made clear, I, I was very concerned, as I think I said at that time, uncomfortable about discussing things that I thought were outside the scope that [AIG] had identified for me that day. … And I felt like that’s the direction that the questions were coming from. I didn’t feel comfortable saying, you know, vouching for what was in [DAD] and [Special Counsel]’s texts and saying what they meant. I had not thought about the Wall Street Journal article and the conversations we had around it in quite a long time. And so, I misspoke.”
Notably, McCabe told Horowitz that “he did not discuss the Devlin texts” with Page following his initial July 28, 2017, interview with the IG. However, Page told Horowitz that “following McCabe’s July 28 OIG interview, she and McCabe discussed her text messages.” Page did tell the IG “that McCabe did not discuss his OIG testimony about the WSJ article, or the WSJ article itself, at that time.”
The IG found that “McCabe lacked candor on four separate occasions in connection with the disclosure to the WSJ” and that “three of those occasions involved his testimony under oath.” The report provided the specific dates for each of these events:
- Lack of Candor with then-director Comey on or around October 31, 2016
- Lack of Candor in Interview under Oath with INSD Agents on May 9, 2017
- Lack of Candor in Interview under Oath with OIG Investigators on July 28, 2017
- Lack of Candor in Interview under Oath with OIG Investigators on November 29, 2017
In its report, the IG provided the legal definitions of “Lack of Candor” as it relates to the FBI:
“Offense Code 2.5 (Lack of Candor – No Oath) prohibits ‘[k]nowingly providing false information when making a verbal or written statement, not under oath, to a supervisor, another Bureau employee in an authoritative position, or another governmental agency, when the employee is questioned about his conduct or the conduct of another person.’
“Offense Code 2.6 (Lack of Candor – Under Oath) prohibits ‘[k]nowingly providing false information in a verbal or written statement made under oath.’”
Under both offense codes, lack of candor is defined to include “false statements, misrepresentations, the failure to be fully forthright, or the concealment or omission of a material fact/information.”
As previously noted, Horowitz found three separate instances where McCabe “lacked candor – under oath,” along with an additional instance in which McCabe lacked candor with his superior, Comey.
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Author: Jeff Carlson