For months, a huge question has hovered over Washington’s legal community: Would the Justice Department charge former acting FBI director Andrew McCabe with a crime?
In the wake of a New York Times report that his lawyers met with the deputy attorney general about the DOJ’s investigation of McCabe, many suspect charges could be coming. And the D.C. U.S. Attorney’s Office has scrutinized allegations that McCabe was not candid with FBI investigators about his role in a news story concerning the FBI’s probe into the Clinton Foundation.
Now, emails reviewed by The Daily Beast cast additional light on the circumstances that preceded McCabe’s firing from the FBI. They show that one FBI official felt the need to clarify to then-Deputy Attorney General Rod Rosenstein that the FBI’s internal investigation into McCabe’s behavior wasn’t being slow-walked. And they show that former director of national intelligence James Clapper urged FBI Director Chris Wray to shield McCabe from being fired. They also show that in the weeks before the 2016 presidential election, McCabe shared more information about his media contacts with then-FBI Director James Comey than was previously known.
McCabe has sued the Justice Department over his firing. The issues these emails shed light on—whether he deserved to be fired and whether the FBI handled the decision correctly—are sure to be front and center if the lawsuit goes to trial.
Citizens for Responsibility and Ethics in Washington (CREW), a government watchdog group, obtained the emails through FOIA litigation and shared them with The Daily Beast. They are also available in the FBI’s FOIA vault. CREW’s litigation is ongoing.
Some of the emails in the tranche cast light on the FBI’s scramble to deal with media coverage in the final days of the 2016 presidential campaign. On Oct. 21, 2016, McCabe sent Comey an email with the subject line “Updates.” Copied on the email were James Rybicki, who was then Comey’s chief of staff, and David Bowdich, who was then associate deputy director of the FBI. McCabe opened with an update on a cyberattack. He then turned to the subject of media.
“In the more bad news category, Mike K informed me that Devlin Barrett at WSJ is putting together an article claiming I had a conflict of interest on MYR as a result of Jill’s campaign connections to Gov. McCaulife [sic],” McCabe wrote, referring to then-Virginia Gov. Terry McAuliffe. “I will work with mike to provide some basic facts to push back. And, as always, will keep you advised. I am incredibly sorry for adding to the drama on this.”
“Mike K” referred to Mike Kortan, then the FBI’s public affairs chief. “MYR” referred to Midyear, the FBI’s nickname for its investigation of Hillary Clinton’s use of a private email server when she was secretary of state.
“Outstanding,” Comey replied to McCabe. “Don’t sweat it.”
Two days later, McCabe updated Comey and Rybicki on his participation in the then-forthcoming Wall Street Journal story.
“Not too much in the update,” he wrote. “The only additional notable news is that Mike K and I spent a good part of the day trying to shape the WSJ story on my alleged conflict,” he wrote. “Looks like they may try to release it on line tonight. The reporter also called Jill for a comment, so we are working that as well.”
The Justice Department Inspector General did not mention the emails in his damning report on McCabe, which focused on his role in a second Wall Street Journal story. The report alleged that McCabe lacked candor when he told FBI investigators about how the Journal obtained information about the Bureau’s internal deliberations for that second story.
One issue has been whether McCabe told Comey about his participation in that story; McCabe has said he did, but Comey has said he has no recollection of McCabe making the disclosure to him. McCabe’s lawyers, meanwhile, argue that the Inspector General’s report is seriously flawed.
Scrutiny of McCabe’s work at the FBI grew over the following two years, with congressional Republicans and the president calling for McCabe to be fired and punished. But McCabe also had defenders. Clapper—who has also become a target of the president—sent a handwritten letter to FBI Director Chris Wray on Feb. 25, 2018, praising McCabe and calling for Wray to intercede on his behalf. That letter is in the tranche of documents CREW obtained. In it, Clapper called the criticism of McCabe “completely unjustified and profoundly unfair.”
“We often appeared as witnesses together at Congressional hearings, where, as you also know, ‘bonds’ with fellow witnesses can quickly form,” he wrote. “I came to know and rely on Andy as steady, straightforward, candid, forthright, and honest.”
He also praised McCabe for his “sharp intellect, insightful wisdom, unwavering commitment to the mission, self-effacing humility, staunch devotion to the men and women of the Bureau, and, importantly, his impeccable integrity.”
“I would hope you will consider my observations, which I know are shared uniformly by virtually everyone who knows Andy, and will use your influential voice to insure he is able to complete his career and retire after his 21 years of distinguished service to the Bureau and this nation,” Clapper concluded.
Clapper’s letter came as the FBI’s Office of Professional Responsibility (OPR) was scrutinizing McCabe. The Inspector General had referred his case to OPR so they could make a recommendation to the Attorney General on how to handle it. In an email sent on March 5, 2018, Candice Will—then the head of the OPR office—updated Bowdich on her team’s review of the McCabe investigation. That note includes a line that seems to hint at outside pressure to speed it up.
“I sent the DAG [Deputy Attorney General Rod Rosenstein] a short email advising that FBI OPR had received the referral from the OIG, we are actively working it, we anticipate providing a proposed action to the subject this week, we will make the file available to the subject—all in accordance with standard procedures—for him to prepare a written response,” she wrote. “In doing so, I let the Dept know that we are doing what should be done, not slow walking—we are following established procedures.”
Bowdich responded by noting that the Bureau would face criticism regardless of how it handled the decision on McCabe.
“Thanks Candice, as you know we will be second guessed by some every step of the way however this ends up,” he wrote. “As long as we follow the regular process we are where we should be on this issue.”
It is unclear why Will felt the need to clarify to Rosenstein that her office was “not slow walking” the McCabe review. An FBI spokesperson declined to comment for this story, as did a spokesperson for McCabe.
On March 19, 2018, just hours before McCabe would have been eligible to retire and receive his pension, then-Attorney General Jeff Sessions announced his firing. The move horrified his allies, but cheered critics of the Russia probe. And Trump’s personal lawyer at the time, John Dowd, praised the move and said Mueller’s investigation should be shut down next.
The timing of McCabe’s firing—and the question of whether Trump’s allies pushed for it to be expedited—has become a major point of contention.
The emails suggest there may be more to all these pieces of the McCabe story than currently known—and that civil litigation or a criminal trial could generate much more information.
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