Because Facts Matter: Andrew McCabe's Lawyers Rebut Claims

Discussion in 'Politics & Religion' started by Zable, Apr 15, 2018.

  1. Zable

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    The lead counsel for the fired US Deputy Director and former Acting Director of the FBI Andrew McCabe is Michael R. Bromwich, who is employed by the legal firm Robbins, Russell, Englert, Orseck, Untereiner & Sauber LLP. Mr Bromwich is also the founder and managing principal of the Bromwich Group, which is a Washington DC strategic consulting firm. Below, Mr McCabe’s legal advisors flag "the most egregious inaccuracies" in the US DOJ OIG’s misconduct report on Mr McCabe:

    BECAUSE FACTS MATTER

    The following segments identify the most egregious inaccuracies in the Office of Inspector General’s (OIG) report as they pertain to former FBI Deputy Director Andrew McCabe:

    Claim: Mr. McCabe violated FBI policy by disclosing sensitive information, in this case implicitly acknowledging the existence of an ongoing investigation.​
    Fact: This is false. Under FBI policy, as Deputy Director, Mr. McCabe had full authority to authorize sharing information with the media. It was an integral and significant part of his job – the FBI’s Office of Public Affairs (OPA) reported directly to him and he dealt with press issues on a daily basis. In this case, a reporter had been leaked false and defamatory information about the FBI’s handling of the Clinton Foundation investigation, including that Mr. McCabe had tried to shut it down. This was the opposite of the truth. As a result, Mr. McCabe authorized his Counsel and the head of FBI’s OPA to share information that showed that, in fact, the FBI continued to pursue that investigation. Their interaction with the Wall Street Journal (WSJ) was not done in secret: it took place over the course of several days and others knew of it, including Director Comey. It was done to protect the institutional reputation of the FBI as a non-political and professional investigative agency, and therefore was squarely within the public interest exception to the FBI’s prohibition on sharing sensitive material. The information shared was not classified and involved a matter that had already been widely reported on in the media for several months. This finding’s reliance on Director Comey’s after-the-fact view of the matter ignores the fact that Mr. McCabe had the independent authority to make that judgment and did so to the best of his ability.

    Claim: Mr. McCabe lacked candor when he spoke to FBI Director Jim Comey about the WSJ article on or about October 31, 2016.​
    Fact: This is false. Former Director Comey sent his letter to Congress reopening the Clinton email investigation on Friday, October 28. Amidst the tumult and upheaval following the public disclosure of the letter, it is not surprising that Director Comey has an imperfect and inaccurate recollection of the conversation he had with Mr. McCabe about the October 31 WSJ article on that day, which is the basis for this OIG investigation and report. In fact, the OIG report makes clear that Director Comey’s recollection is fragmentary and his statements are equivocal. By contrast, Mr. McCabe has a clear recollection that he did discuss aspects of the WSJ article with Director Comey. Again, by his own admission, Director Comey has no specific recollection of what Mr. McCabe told him. Mr. McCabe specifically remembers discussing the article generally and the portion of the article that indirectly acknowledged the existence of the FBI’s Clinton Foundation investigation. It is undisputed that Mr. McCabe had the independent authority to decide to share information with a reporter. Emails between the two clearly show that Mr. McCabe specifically advised Director Comey that he was working with colleagues at the FBI to correct inaccuracies in the story before it was published, and that they remained in contact through the weekend while the work was taking place. The fact that the OIG choses to credit Director Comey’s equivocal and speculative testimony rather than Mr. McCabe’s clear and unequivocal testimony, supported by documentary evidence, is inexplicable.

    Claim: Mr. McCabe lacked candor when he discussed the WSJ article with the FBI Inspection Division investigators on May 9, 2017.​
    Fact: This is false. Mr. McCabe never deliberately misled Inspection Division (INSD) investigators. The meeting focused almost exclusively on a separate matter, and only very briefly on the WSJ article. That is reflected in the fact that in a 12-page draft statement prepared by INSD, the WSJ article occupied a single paragraph. The meeting was held shortly before Mr. McCabe learned that Director Comey was fired and that he would become the Acting Director. In the hours and days that followed the meeting, Mr. McCabe led and inspired a global workforce of 37,000 people, met with the Attorney General and the President several times, testified before the Senate Intelligence committee, advanced the Russian interference investigation, and advocated for the appointment of a Special Counsel. It is completely understandable that he does not have a clear recollection of what INSD asked him in the moments before this chaos. However, when Mr. McCabe turned back to the draft statement they prepared for him several months later, he declined to sign it and instead contacted INSD to correct the inaccurate facts about his relationship to the WSJ article. If Mr. McCabe had wanted to hide his knowledge of the WSJ article, he could have simply signed the statement. He did not. He corrected the record. The OIG’s account of Mr. McCabe’s interactions with the INSD investigators is incomplete and misleading.

    Claim: Mr. McCabe lacked candor when he was interviewed by the OIG in July 28, 2017.​
    Fact: This is false. In a break from procedure, OIG investigators requested that Mr. McCabe, then the FBI’s Acting Director, appear immediately to address matters related to the OIG’s review of the Clinton email investigation. Mr. McCabe knew he was a subject of aspects of that inquiry, and although his then-counsel was unavailable, he responded in an effort to comply with the OIG’s request. The OIG investigators assured him they would not ask questions about matters that could involve him. Despite that assurance, after sharing with him for the first time the volume and nature of thousands of highly sensitive and inflammatory text messages between two FBI employees, they specifically asked him questions about the WSJ article, much to his confusion and contrary to his understanding of the ground rules of the discussion. He attempted multiple times to end the discussion as quickly as possible, with statements intended to delay discussion until counsel was present. Following the meeting, Mr. McCabe’s main focus was on the urgent management and personnel decisions he had to take to deal with the text messages he was shown, and what he was told about those text messages by the OIG. After those matters had been addressed, Mr. McCabe thought further about his discussion with the OIG investigators and realized that he needed to correct the record. As a result, two business days after the meeting, he contacted the OIG and corrected his prior statements.

    Claim: Mr. McCabe lacked candor in his interview with the OIG in November 29, 2017.​
    Fact: This is false. Mr. McCabe has given truthful and complete answers to the best of his recollection every time he has been asked questions about an interaction with a reporter that was quite clearly within his discretion to conduct. At all times, he told the truth to the best of his ability. This allegation is built on the shaky foundation of the allegations that he lacked candor in his dealings with Director Comey, INSD, and the OIG. What is entirely missing from the OIG’s report is any evidence of a motive for Mr. McCabe to do anything but tell the truth about this matter. He didn’t leak information to the WSJ reporter; he was authorized to provide it. He explicitly told Director Comey on multiple occasions, and documented in multiple emails, that he was working with other FBI personnel to correct inaccuracies in the story the reporter was working on. There was no significant blowback in the aftermath of the article’s publication that might have created a motive to conceal his involvement. And Mr. McCabe worked closely with two other FBI employees on correcting the record, but never expressed any concern to them about the matter, nor made any suggestion that they should conceal what they had done. The OIG’s conclusion is based on a deeply flawed assessment of the evidence against Mr. McCabe and fails to take into account evidence produced to him in the last two weeks that supports his position.​

    Source: The above response may be found on the website of the Bromwich Group. http://www.bromwichgroup.com/wp-content/uploads/2018/03/Facts-Matter.pdf

    Source: A redacted copy of the OIG’s misconduct report on Andrew McCabe – given to Capitol Hill on Friday April 13th 2018 ahead of it expected public release in May and leaked to media after being given to the AP – may be found posted online in several places, such as: https://www.scribd.com/document/376304971/McCabe-Report-Redacted-for-Response-to-Chairmen-s-Requests-20180413#from_embed
     
    Last edited: Apr 16, 2018
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  2. Zable

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    Also on Friday, the Bromwich Group released this statement:

    STATEMENT BY MICHAEL R. BROMWICH, COUNSEL TO ANDREW McCABE


    The Office of the Inspector General (OIG) report served as the basis for Andrew McCabe’s termination, 26 hours before he was scheduled to retire with a full law enforcement officer pension and health insurance. The rush to judgment – and the rush to terminate Mr. McCabe – were unprecedented, unseemly, and cruel. His treatment was far more harsh and far less fair than he deserved, and his reward for the loyalty he showed to his country over the course of his career was a truncated form of administrative due process, including the lack of any right to appeal outside the Department of Justice (DOJ).

    The rush to termination was nothing short of extraordinary – a process that normally takes many months, if not longer, was completed in 23 days. The OIG first made its draft report available on February 21. Mr. McCabe was required to make an oral presentation and defense to the OIG on February 23 and was given an inflexible deadline to submit written comments on the draft report by February 26. Requests for additional time were denied. This timetable precluded counsel from being able to speak to witnesses and develop evidence that refuted the allegations against Mr. McCabe.

    The next stage of the process likewise was accelerated in a way inconsistent with DOJ precedent and administrative due process. We were given access to the FBI-OPR administrative file for the first time on March 9 and were advised that the process could not and would not be extended past March 16, the last business day before Mr. McCabe’s 50th birthday, when his full retirement benefits would vest. It was virtually impossible for us to review the extensive administrative record, prepare for a meeting with DOJ officials, and provide a final written submission in a week’s time – but that is what we were compelled to do. We asked for more time, but that request was denied. This rush to the finish line was unfortunate and deeply unfair.

    We were also troubled when we learned that Attorney General Sessions would be the final decision maker. For many months, the President has placed enormous – indeed unprecedented – pressure on the Attorney General, belittling him and expressing displeasure with his decisions, especially his decision to recuse himself from the Russia investigation. Taken together with the President’s sustained and outrageous criticism of Mr. McCabe, including clearly expressing, via numerous tweets, his desire that Mr. McCabe be fired before he became eligible for his full retirement rights, the pressure on the Attorney General to terminate Mr. McCabe was enormous. Nevertheless, we requested that in the event of a recommendation to terminate, we be given the opportunity to meet with the Attorney General to make our case that termination was unjustified and inappropriate. We never received a response to the request.

    Separate and apart from our profound concerns about the process, we believe the OIG report utterly failed to support the decision to terminate Mr. McCabe. In written submissions to the OIG and DOJ, we demonstrated that the charges were unsupported by the evidence and that the OIG's conclusions and the FBI-OPR proposal to terminate Mr. McCabe were unjustified.

    The core weakness of the OIG report is the lack of any understandable motive for his alleged wrongdoing. It is undisputed that Mr. McCabe was one of three senior FBI officials authorized to share information with the media, including on sensitive investigative matters. He chose to exercise that authority in October 2016, during one of the most turbulent periods in the history of the Bureau, with the knowledge of Director Comey and other senior members of FBI management. His purpose was to protect the institutional reputation of the FBI against false claims, including that a sensitive investigation was being shut down for political reasons.

    Mr. McCabe’s recollection of discussions he had with Director Comey about this issue is extremely clear; Director Comey’s recollection is, by his own acknowledgment, not at all clear. And yet two of the lack of candor allegations are based on Director Comey’s admittedly vague and uncertain recollection of those discussions.

    The other allegations of lack of candor against Mr. McCabe – based on statements he made to the FBI’s Inspections Division and the OIG – are more properly understood as the result of misunderstanding, miscommunication, and honest failures of recollection based on the swirl of events around him, statements which he subsequently corrected. Again, Mr. McCabe had no motive to lie or mislead about media contacts he had the authority to direct, nor did he make any effort to coordinate accounts of the events in question with the two other FBI employees with whom he worked on trying to correct a potentially false narrative.

    The rushed decision to terminate Mr. McCabe was not only unfair to him and to his family; it has sent a profoundly troubling message to the DOJ and FBI workforce about the harshness and lack of proportionality of the disciplinary process. That troubling message was reinforced, and made toxic, by the President’s celebratory tweet hours after Mr. McCabe’s termination.

    The President has publicly demanded results from the OIG. His comments have applied inappropriate pressure on that office and DOJ more generally. No one, not even an independent Inspector General, is fully immune from the type of political pressure that has been applied in Mr. McCabe’s case. When the President expressed his doubts about the OIG’s capacity to handle matters properly within its jurisdiction, he further tainted the process.

    During the course of his 21-year career, Mr. McCabe stepped up to accept every challenge the FBI and this country presented. He served this country with courage and distinction in a series of difficult and important assignments, including as Acting Director after the President's summary dismissal of Director Comey. Instead of conveying the thanks of a grateful nation, the President and the White House chose to subject Mr. McCabe to repeated ad hominem attacks, before and after his termination.

    In the full context of this case, the termination of Mr. McCabe was completely unjustified. And the rush to fire him, at the goading of the President, was unworthy of the great traditions of the Department of Justice.

    Michael R. Bromwich served as the Inspector General for the Department of Justice from 1994 to 1999. He has served as counsel to Andrew McCabe in this matter.
    Source: http://www.bromwichgroup.com/wp-content/uploads/2018/04/MRB-statement-041318.pdf
     
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  3. Zable

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    An earlier statement by Mr Bromwich, issued March 16, 2018:


    STATEMENT BY FORMER IG MICHAEL R. BROMWICH

    I have been involved in Department of Justice (DOJ) and Federal Bureau of Investigation (FBI) disciplinary matters since 1994. I have never before seen the type of rush to judgment – and rush to summary punishment – that we have witnessed in this case. The result of this deplorable rush to judgment is to terminate Mr. McCabe before his long-anticipated retirement and deny him of the full pension and retirement benefits he would have otherwise earned through his 21 years of devoted service to the FBI and this country. This is simply not the way such matters are generally handled in the DOJ or the FBI.

    It is deeply disturbing.

    This distortion of the process begins at the very top, with the President’s repeated offensive, drive-by Twitter attacks on Mr. McCabe. These attacks began in the summer of 2017 and accelerated after it was disclosed that Mr. McCabe would be a corroborating witness against the President. The attacks have continued to this day, with the President’s press secretary stating Thursday, in response to a question about Mr. McCabe’s fate, “that is a determination that we would leave to Attorney General Sessions, but we do think it is well-documented that he has had some very troubling behavior and by most accounts a bad actor.” This vile and defamatory statement is fully consistent with the attacks on Mr. McCabe that have come from the White House since last summer. And it was quite clearly designed to put inappropriate pressure on the Attorney General to act accordingly. This intervention by the White House in the DOJ disciplinary process is unprecedented, deeply unfair, and dangerous.

    The investigation described in the Office of the Inspector General (OIG) report was cleaved off from the larger investigation of which it was a part, its completion expedited, and the disciplinary process completed in a little over a week. Mr. McCabe and his counsel were given limited access to a draft of the OIG report late last month, did not see the final report and the evidence on which it is based until a week ago, and were receiving relevant exculpatory evidence as recently as two days ago. We were given only four days to review a voluminous amount of relevant evidence, prepare a response, and make presentations to the Office of the Deputy Attorney General. With so much at stake, this process has fallen far short of what Mr. McCabe deserved.

    This concerted effort to accelerate the process in order to beat the ticking clock of his scheduled retirement violates any sense of decency and basic principles of fairness. It should make all federal government employees, who continue to work in an Administration that insults, debases, and abuses them, shudder in the knowledge that they could be next.

    Michael R. Bromwich served as the Inspector General for the Department of Justice from 1994 to 1999. He served as counsel to Andrew McCabe in this matter.


    Source: http://www.bromwichgroup.com/wp-content/uploads/2018/03/Bromwich-statement.pdf
     
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  4. Zable

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    As Slate’s Ben Mathis-Lilley sees it, “Andrew McCabe Got Fired for Allegedly Misleading James Comey, Which Screws Up Pretty Much Everyone’s Narrative.”

    He writes:

    The Department of Justice’s inspector general has released a report about the controversial firing of former FBI Deputy Director Andrew McCabe. It’s a detailed document, but here’s the gist of what is recounted and alleged:

    • In October 2016, a Wall Street Journal reporter contacted the FBI and said he’d heard that McCabe was telling agents involved in the FBI’s investigation of the Clinton Foundation to “stand down.” (The agency investigated the Clintons’ nonprofit for potential corruption; no charges were ever filed. McCabe was at that point the subject of public scrutiny regarding Clinton because his wife received significant fundraising assistance from Clinton ally Terry McAuliffe during an unsuccessful run for office.)

    • McCabe authorized two FBI employees to convey to the WSJ reporter that McCabe had in fact vociferously defended the FBI’s right to continue investigating the Clinton Foundation during an August 2016 conversation with a Department of Justice official.

    • While McCabe did have the authority to make decisions about disclosures to the press, this particular disclosure didn’t conform to the FBI’s policies on when and how to comment on ongoing investigations, took place during a period when leaks had created high tension between the FBI and DOJ, and likely would not have been approved by then–FBI Director James Comey had he been apprised of it in advance.

    • McCabe misled Comey after the Journal published its story, giving Comey the impression that he (McCabe) did not know how an account of the August 2016 conversation had ended up in the paper.

    • McCabe then misled both internal FBI investigators (in May 2017) and inspector general investigators (in July 2017) who were looking into the source of the disclosure to the Journal. While McCabe did ultimately contact investigators in August 2017 to say that he’d authorized the disclosure, and gave further testimony about that disclosure in November 2017, he continued to be dishonest about having misled Comey.

    To be clear, the bulleted summary above is an account of the IG report’s claims, not a summary of my independent conclusions about each specific issue. McCabe’s lawyer disputes the report’s characterization of McCabe’s behavior and says the situation is a matter of “misunderstanding” and “miscommunication” rather than dishonesty.

    Assuming the IG report is accurate, it throws a wrench into the narratives that both parties have developed about McCabe’s firing. Donald Trump and other Republicans have sought to portray him as a collaborator in Comey’s “Deep State” war on the presidency. Not surprisingly, Trump tweeted about the report to this effect without appearing to have read it or even been told what was in it.

    In fact, the report makes clear that Comey’s contradiction of McCabe’s testimony about the Journal article—and, more broadly, McCabe’s seeming realization that he had screwed up by effectively circumventing Comey when he authorized the disclosure to the Journal—was the central reason he ended up in trouble.

    Democrats, meanwhile, have largely made McCabe into a #resistance hero in Comey’s mold, assuming (not without reason) that the fact that McCabe’s firing was approved by attorney general Jeff Sessions meant that McCabe had been railroaded as part of Trump’s larger war on the FBI. But the report cites significant circumstantial, documentary, and testimonial evidence that, at least to this observer, support its central conclusion that McCabe demonstrated a serious failure to speak with “candor” under oath on more than one occasion.

    And, for the record, the report says in a footnote that the DOJ official discussed in the Journal story confirmed McCabe’s account of their August 2016 conversation. In other words, all of this happened because Andrew McCabe—alleged agent of the Clinton/Obama Deep State—angrily defended the FBI’s right to investigate Clinton during a conversation with an official in Obama’s Department of Justice. Sometimes it’s not the crime, it’s the cover-up.​

    https://slate.com/news-and-politics...ctor-general-report-says-he-misled-comey.html
     
  5. Zable

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    At this point in time, Andy McCabe doesn’t look to have commented publicly since the OIG report which led to his firing became pubic. However, his spokesperson from the Bromwich Group, Melissa Schwartz, has spoken with the DC district-covering Washington Examiner.

    In the article titled Andrew McCabe disputes James Comey’s memory, not his credibility (which WE published online a couple of days ago), Ms Schwartz is quoted as saying that Mr McCabe “does not hold a negative view of Mr. Comey's credibility”.

    The WE stated that Ms Schwartz said she had first-hand knowledge of McCabe’s opinion of Mr Comey and was not assuming his views. “There is no claim that Director Comey defamed Mr. McCabe,” Schwartz said. “People's recollections can honestly differ.”

    Excerpt of the WE news report, on that part of the OIG’s report detailing that bone of contention:

    In a conversation with then-Director Comey shortly after the WSJ article was published, McCabe lacked candor when he told Comey, or made statements that led Comey to believe, that McCabe had not authorized the disclosure and did not know who did,” the (OIG) report said.

    “Comey and McCabe gave starkly conflicting accounts of this conversation. Comey said that McCabe ‘definitely' did not tell Comey that he had authorized the disclosure about [a particular phone call],” the (office of the) inspector general report said.

    “McCabe asserted that he explicitly told Comey during that conversation that he authorized the disclosure and that Comey agreed it was a ‘good’ idea. While the only direct evidence regarding this McCabe-Comey conversation were the recollections of the two participants, there is considerable circumstantial evidence and we concluded that the overwhelming weight of that evidence supported Comey’s version of the conversation. Indeed, none of the circumstantial evidence provided support for McCabe’s account of the discussion; rather, we found that much of the available evidence undercut McCabe’s claim,” the (OIG) report said.

    In declaring Comey the likely truth-teller, the Justice Department inspector general’s office also ruled against an allegation made repeatedly by President Trump that Comey lied to Sen. Chuck Grassley, R-Iowa.

    Days before Comey himself was fired by Trump in May 2017 for alleged misconduct relating to public statements on the Clinton email probe, Comey told Grassley "no" in response to whether "you ever authorized someone else at the FBI to be an anonymous source in news reports about the Trump investigation or the Clinton investigation."


    The full WE news report here: https://www.washingtonexaminer.com/news/white-house/andrew-mccabe-disputes-james-comeys-memory-not-his-credibility
     
    Last edited: Apr 18, 2018
  6. Zable

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    A counterpart of Andy McCabe spoke briefly of him and their work on The 11th Hour last month. One headed counterintelligence, the other headed counterterrorism.


     
  7. Zable

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    Impressive watchdog report can’t be the end of the McCabe-Trump saga, writes Kris Kolesnik, an opinion contributor to The Hill (April 16, 2018):

    Two questions are paramount in the case of President Trump v. former FBI official Andrew McCabe: 1) Did McCabe act with political motives while investigating Trump and Hillary Clinton, as Trump claims? and 2) Was McCabe fired because of politics, as McCabe claims? Put another way, has the FBI become a political rogue, or is it the victim of politicization? Objectively, this needn’t be a binary choice. It’s possible both occurred.

    On Friday, the Justice Department Inspector General (IG) released its report on these matters, pertaining to McCabe’s role in an unauthorized leak to a reporter. The IG found that McCabe lacked candor four times when questioned about his role, and he made an unauthorized disclosure to the media. The IG sent his findings to the FBI, the bureau’s Office of Professional Responsibility (OPR) recommended termination, and Attorney General Sessions fired McCabe 26 hours before he could reach the county line of retirement. All that happened in the blink of an eye.

    I recently wrote about four issues to look for in advance of the report’s release: 1) Why didn’t Sessions recuse himself from the McCabe decision? 2) Did the IG maintain independence? 3) What were the IG’s findings about McCabe’s conduct? 4) What should be known about OPR’s history in such matters?

    The IG report provides a bit of insight into the two paramount questions, and a bit more about my four issues. Whatever is not answered needs to be addressed as the process moves forward. The stakes are sufficiently high. Even though this is a lone personnel case, its significance packs a wallop. So, it requires our fortitude in demanding answers.

    Let’s examine the report’s findings compared to my four points, and then see where we are in the bigger picture of the paramount questions. First, there is still the outstanding question of why Sessions was involved in the McCabe firing. The matter was within the scope of his recusal, as I laid out in my previous column. This report sheds no new light on that.

    Second, the IG report was thorough, objective and very persuasive. A handful of news stories last month suggested the IG recommended firing McCabe, along with OPR. This report clarifies that the IG was a finder of fact only, and presented the findings to the FBI for appropriate action. The report also examines McCabe’s motive for the leak. It was not political, nor was it cultural, i.e., there was insufficient reason to think the influence of the New York field office to go after Clinton played a role. Rather, the motive was his personal interest.

    The IG concludes that “McCabe was motivated to defend his integrity and objectivity” in the Clinton Foundation investigation, which was being called into question through press reports.

    Despite the professional and thorough work of the IG in this report, a question of independence still lingers: Why did the IG carve out the McCabe portion for the FBI before the final report was issued? The question is relevant because of the perception that the IG might have succumbed to political pressure to have the IG findings for decision-makers before McCabe could retire.

    Non-criminal IG reports are based on comparing agency policies and procedures to the actions it finds in an investigation. The same comparison needs to apply to an IG. Did this carve-out fall within the IG’s policy or not? If the IG’s explanation is that the McCabe issue was pressing and decision-makers needed to know, that could be interpreted as caving under political pressure. There may be a legitimate reason for the carve-out, but it needs to be explained.

    Third, McCabe’s disclosure to a reporter was unauthorized. The IG also found four instances of lack of candor by McCabe, three under oath and one not under oath. There were no findings of lying, as some had proclaimed. The distinction between lying and lack of candor is important. As I’ve written in the past:

    “In an administrative procedure, false statements (lying) require proof of intent. It’s very objective but harder to prove. A lack of candor charge is much more subjective. Essentially, it means one wasn’t fully forthcoming in answering a question and withheld some relevant information.”​

    Finally, OPR’s decision to play beat the clock with the McCabe case does not comport with its history. Their role will be kept confidential unless McCabe chooses to make it public. That is a good congressional oversight matter. In this case, the IG would not be an appropriate overseer until it can clear up its carve-out matter.

    With these four issues examined, let’s return to the over-arching questions, where the rubber really meets the road. Was the FBI the perpetrator or victim of politics? First, did McCabe act with political motives? The answer in this report is no. We await the rest of the IG report about the 2016 election to conclusively answer that question. The motives could be personal again, or political, or some other inappropriate reason. Or, there could be no untoward motives at all.

    Second, was McCabe fired because of politics? Every single duck that has surfaced in this matter walks and talks like a political duck. From the Twitter-bashing to the congressional barrages to the nightly assaults from right-wing media, these make last week’s Syria raid look like a walk in the park. This level of politicization has never occurred before in anyone’s memory. Then there’s the continued rope-a-dope Sessions is playing, in apparent violation of his recusal, and his unusual appointment of U.S. Attorney John Huber in lieu of a second special counsel, to apparently save his job. All of this has occurred before the facts are even known. This is how lynch mobs are created.

    My point is that the mob mentality has to stop, and reason has to prevail. Disqualified, in my view, are the White House (non-credible and untruthful assaults), Sessions (too many recusal issues) and Congress (Nunes Memo, Steele “criminal referral,” “secret society” conspiracy). They’re all part of the mob. Not disqualified but needing to show leadership are the IG, DOJ minus Sessions, FBI Director Christopher Wray, and the appeals process for McCabe. They need to produce a factual basis for getting back on track.

    The McCabe case is of a single person in an otherwise huge government enterprise. But think of the colossal issues symbolized in this case that impact our democracy right now. The politicization of law enforcement is primary among them. The breakdown of congressional checks and balances is another. And a White House that knows not how to govern, and is stuck instead in campaign mode. The rule of law needs to prevail, and the mob needs to disperse. Where will the leaders come from?

    Kris Kolesnik is a 34-year veteran of federal government oversight. He spent 19 years as Senior Counselor and Director of Investigations for Sen. Charles Grassley. Kolesnik then became executive director of the National Whistleblower Center. Finally, he spent 10 years working with the Department of the Interior’s Office of Inspector General as the Associate Inspector General for External Affairs.
     
  8. Zable

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    The Justice Department has handed over the Comey memos to Congress, reports Axios, and 15 pages of the memos are in the hands of the Associated Press. As Axios’s Haley Britzky reminds us: “The memos are ‘believed to be central’ to special counsel Robert Mueller's probe.”

    Excerpts:
    • During their private dinner: “The conversation, which was pleasant at all times, was chaotic, with topics touched, left, then returned to later, making it very difficult to recount in a linear fashion…It really was a conversation-as-jigsaw-puzzle in a way, with pieces picked up, then discarded, then returned to.”
    • Comey writes that Trump asked him "whether 'your guy McCabe' has a problem with me, explaining that 'I was pretty rough on him and his wife during the campaign.' I explained that Andy was a true professional and had no problem at all.
    • After asking Comey to get out that Trump was not under investigation, he followed up with a phone call, per the memos: "I said that...he should have the White House Counsel call the Acting Attorney General and make the request. He said that was what he would do. He then added, "Because I have been very loyal to you, very loyal, we had that thing, you know." I did not reply, or ask him what he meant by "that thing."
    • Comey told Trump during the dinner: "[H]e could count on me to always tell him the truth. I said I don't do sneaky things. I don't leak. I don't do weasel moves. I was not on anybody's side politically and could not be counted on in that traditional political sense."
    • On Mike Flynn, Trump told Comey: "'I hope you can see your way clear to letting this go, to letting Flynn go. He is a good guy. I hope you can let this go.' I replied by saying 'I agree he is a good guy,' but said no more."
    • Comey said to Trump, while discussing leaks, "something about the value of putting a head on a pike as a message. He replied by saying it may involve putting reporters in jail. 'They spend a couple days in jail, make a new friend, and they are ready to talk.'"
    • On the dossier: "The President said 'the hookers thing' is nonsense but that Putin had told him 'we have some of the most beautiful hookers in the world.' (He did not say when Putin told him this and I don't recall.)"
    Source: https://www.axios.com/whats-in-the-comey-memos-f549fe44-ceb4-462f-aa8f-f5cb65f833f7.html

    Business Insider writes up the Trump-Comey exchange on Andy McCabe this way:

    According to Comey, Trump blasted former FBI deputy director Andrew McCabe and referred to him “your guy” in conversations with Comey, on several occasions.

    “He asked (as he had at our dinner) whether my deputy had a problem with him, and recounting how hard he had been on the campaign trail,” Comey wrote in the memo.

    Trump bristled at McCabe frequently throughout his first year in the White House, often taking aim at him and his wife on Twitter.

    Comey responded to Trump’s comments by giving McCabe a positive assessment: “I again explained that Andy McCabe was a pro,” Comey said in the memo.
     
    Last edited: Apr 20, 2018
  9. Zable

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    Andrew McCabe’s case referred to federal prosecutors, reports The Week’s Catherine Garcia:

    A lawyer for Andrew McCabe, the former acting director of the FBI, said on Thursday federal prosecutors have been sent a criminal referral for his client from the Department of Justice's inspector general.

    The inspector general released a report saying that in 2016, McCabe misled investigators who were trying to figure out who disclosed information to a Wall Street Journal reporter about an investigation into the Clinton Foundation; McCabe has called the accusations "egregious inaccuracies." McCabe was fired last month by Attorney General Jeff Sessions after the allegations came out against him, just before he was eligible for retirement benefits.

    McCabe's lawyer, Michael R. Bromwich, told The New York Times he's "confident that, unless there is inappropriate pressure from high levels of the administration, the U.S. attorney's office will conclude that it should decline to prosecute." McCabe asserts that the report and his firing are meant to discredit him as a witness in Special Counsel Robert Mueller's investigation into whether President Trump obstructed justice while trying to interfere with the probe.​

    Source: http://theweek.com/speedreads/768628/andrew-mccabes-case-referred-federal-prosecutors
     
  10. Zable

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    Excerpt from James Comey’s interview with Steve Inskeep and Carrie Johnson of National Public Radio (April 17, 2018):

    INSKEEP: A couple of other things to ask about, Director Comey. One has been in the news, your former deputy Andrew McCabe, as you know, was fired after an inspector general report found that he authorized communications with a Wall Street Journal reporter in a way that he shouldn't have. McCabe said you gave him permission to do that. Did you?

    COMEY: No. I don't think McCabe even says that. I think what McCabe says, because I've read the report, is that he thinks he told me he had done it after he had done it.

    INSKEEP: You have no recollection even of that.

    COMEY: No. And I'm quite confident that didn't happen, as is the inspector general.

    INSKEEP: Is it appropriate then that he was fired?

    COMEY: That's a judgment I can't make. What is appropriate is that the inspector general did the kind of investigation that that organization did. This is what an organization, an institution committed to the truth, looks like. This is what accountability looks like. There is indications that someone made a false statement. It's pursued, it's investigated and if the inspector general concludes the evidence is sufficient and the leadership does, that person is held accountable. That's what it looks like.

    The problem with this whole situation is the president's stained those institutions, the entire Department of Justice and the inspector general, by doing something wildly inappropriate, which is calling for Andy McCabe's head. What that did was — and it might be that the president can't imagine an institution that holds people accountable like this — that called into question the entire process. So even if the process was sound, and I've no doubt it was sound given the nature of the people involved in the inspector general's office, there's corrosive doubt about whether it's a political fix to get Andy McCabe somehow. And that's a wound that was inflicted by the president's actions on the Department of Justice.​

    https://www.npr.org/2018/04/17/602917030/transcript-james-comeys-full-interview-with-steve-inskeep-and-carrie-johnson
     
  11. Zable

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    Bloomberg reported today (Saturday, April 21st) that the FBI was not allowing the sharing of transcripts and other documents that Mr McCabe needed “to disprove an allegation that he misled Justice Department officials about his contacts with a journalist”.

    It quoted Mr Bromwich as telling reporters yesterday: “As recently as the middle of this week, we sought permission from the department and the FBI to share our detailed comments which contain transcript references to various interviews – both Mr. McCabe’s, Mr. Comey’s and others – and we were denied permission to do that.”

    [Pause news report]

    Denied permission to share the detailed comments with WHOM? How much are news media truncating sentences to suit a spin?

    In my opinion, the Bloomberg headline, FBI Is Barring McCabe From Proving He Told The Truth, Lawyer Says, is rather misleading and unfair to both the FBI and Mr Bromwich.

    Why? Because Bloomberg leaves it to only those with the intention to read beyond the first couple of paras to dig out the buried details. Agreed, that’s much better than those news media who constantly omit the details inconvenient to them.

    ….So now, it’s in the 5th para of Bloomberg’s small print of this story that we find out who that WHOM is, when it reports that Mr Bromwich’s team had prepared “an 11-page detailed response that goes through every allegation and rebuts it, and we have not been allowed to share that with YOU”.

    Ah. So, what Mr Bromwich was saying was that the FBI was not allowing Mr Bromwich to share sensitive stuff with the media and with the public at large. Not anyone else. Or did he say who else, but was not quoted on that?

    Truly, as far as we know, it’s not true that Andrew McCabe’s being prevented from proving his guilt or innocence with the ‘For Your Eyes Only’ folk tasked with weighing in on his criminal intent.

    [Resume news report]

    According to Bloomberg, “the evidence undercuts an assertion by his (Mr McCabe’s) former boss, James Comey, that he didn’t know McCabe helped shape a Wall Street Journal story in October 2016 about the Federal Bureau of Investigation’s probe into the Clinton Foundation”. Adding: “The dispute between McCabe and Comey pits the former deputy director against the ex-boss who handpicked him for the job.”

    Bloomberg reported that Mr Bromwich had said transcripts showed that Mr Comey didn’t have a clear recollection of the matter, while Mr McCabe did.

    “We are not for a moment suggesting that Jim Comey is making things up or lying about Andrew McCabe,” Bromwich said. “But nobody’s memory is perfect. People are fallible.”

    “Andy’s reaction is that he’s very upset and disappointed at some of the things that Director Comey has said," Bromwich said. "I don’t know how it’s possible for your memory to get better over time about specific events."

    Source: https://www.bloomberg.com/news/articles/2018-04-20/mccabe-barred-by-fbi-from-proving-he-told-the-truth-lawyer-says
     
  12. Zable

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    Excerpt of the Rachel Maddow-James Comey chat about Andrew McCabe on the April 19th 2018 edition of the Rachel Maddow Show:

    MADDOW: Andrew McCabe was raked across the coals in this inspector general report. We’re now told today that it has resulted in a criminal referral to a U.S. attorney’s office. McCabe’s lawyer says he doesn’t think that Andrew McCabe will end up being charged here.

    But this all stems from an incident in which Mr. McCabe was involved in talking to the press about the Clinton investigation, how it was being handled by DOJ and FBI. He says everything he did was – it was within his job description, it was to preserve the public standing of the FBI. He says it was all authorized.

    Clearly, the inspector general doesn’t agree with him on that. While you were director of the FBI and he was your deputy, was there clarity under your leadership about talking to the press, about the issue of leaks, about who could authorize people to discuss things with reporters?

    COMEY: I think so. There were two people who could authorize disclosures, the director and deputy director. So, Andy had the authority to speak to the media and to authorize communications with the media.

    MADDOW: Do you think he improperly spoke to the media in that capacity then?

    COMEY: I don’t know for sure. I know that he didn’t tell me about it, didn’t ask me about it before he did it. I think the inspector general’s report is right in that respect. And I would have expected that.

    But I think he had the authority to do that and I think if he were here, he might say, well, I didn’t need to talk to the boss because I had the authority to do that.

    MADDOW: Yes.

    COMEY: And that’s a hard one, because given all that was going on at that point in time, I would have expected him to talk to me. But I think as a matter of rule, he had the authority.​

    Source:
    http://www.msnbc.com/rachel-maddow-show/rachel-maddow-interviews-james-comey-read-the-full-transcript
     
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  13. Zable

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    There’s New Evidence Trump Obstructed Justice in the House Intelligence Committee’s Minority Report is an April 28th article by Ryan Goodman, which was first published by Just Security, the online forum for analysis of US national security law and policy.

    It was republished in Slate, the online publication that has stepped up its legal coverage – “watchdogging Jeff Sessions’ Justice Department, the Supreme Court, the crackdown on voting rights, and more” – because it believes “the Trump administration poses a unique threat to the rule of law”.

    Mr Goodman wrote:

    The dueling House Intelligence Committee reports into Russian election interference, both released on Friday, provide new information that adds significantly to a picture of obstruction of justice and abuse of power on the part of President Donald Trump.

    Nevertheless, there are reasons to be cautious. The most relevant information is provided only in the minority report—produced by Democrats—and the bulk of these revelations depend on testimony by former Acting FBI Director Andrew McCabe, whose credibility as a witness in some respects may be under a cloud.

    At the same time, the reason that this information is parsed in the minority’s report but not the Republican majority’s is because Chairman Rep. Devin Nunes appears not to have had any interest in investigating the obstruction issue, much to his discredit. What’s more, McCabe’s December 2017 testimony is detailed and, in important instances, refers to other senior FBI officials as witnesses to the same events and conversations as him. At least one of those officials—James Baker, (then) the FBI general counsel—was also present during McCabe’s testimony. It is also useful to recall that Rep. Nunes and the GOP members of the committee have themselves publicly relied on McCabe’s December 2017 testimony. In particular, they invoke McCabe’s testimony in a key sentence in their earlier memo concerning the surveillance of Carter Page, as though McCabe’s testimony provided significant support for that memo’s conclusions.

    With those caveats and acknowledgments in mind, what are the new revelations on potential obstruction and abuse of power?

    One of the most important revelations is that (then FBI General Counsel) Baker and FBI Director James Comey’s chief of staff James Rybicki listened in on Comey’s side of at least some phone conversations with the president, in which Trump reportedly attempted to alter the course of the Russia investigation. “(Jim) Rybicki and (Jim) Baker also heard Comey’s side of phone conversations with the President, in real time,” the minority report states. It is, however, not clear which particular phone conversations with the president they were able to hear in this manner. Comey testified to Congress about six separate phone conversations he had with Trump.

    Both Comey and McCabe interpreted one of the president’s phone calls as threatening Comey if he did not lift the cloud of the Russia investigation. In a phone conversation on April 11, the president said he wanted Comey to lift the cloud, “because I have been very loyal to you, very loyal; we had that thing you know,” according to Comey’s written testimony and contemporaneous memo. But why would the president refer to his loyalty to Comey rather than Comey’s “honest loyalty” to the president?

    McCabe testified that the FBI director and he “weren’t 100 percent sure what that was” but interpreted it as “a veiled threat.” Democratic Rep. Adam Schiff asked McCabe to clarify:

    SCHIFF: And in this case the veiled threat would be against Director Comey?

    MCCABE: That’s correct.

    SCHIFF: Along the lines of, I the president have been very loyal to you. I want you to lift the cloud. Otherwise I might be less loyal to you. Is that the—

    MCCABE: That’s correct.

    SCHIFF: That was the impression of Director Comey?

    MCCABE: It was his and my impression.​

    Second, the FBI director and deputy director were also concerned that the president was threatening to take action against McCabe if the FBI director did not lift the cloud of the Russia investigation. According to Comey’s testimony and contemporaneous memos, Trump repeatedly brought up McCabe in these conversations about the probe. McCabe testified that he and Comey were concerned that the president “was bringing it up as some sort of an almost a veiled threat.”

    Rep. Schiff again asked McCabe to clarify:

    SCHIFF: That if the Director didn’t lift the cloud of the Russian investigation, that he would take action against you?

    MCCABE: That’s correct. That was my concern, and as I understand it, that was Director Comey’s concern as well.​

    Other observations in the minority report and in McCabe’s testimony are perhaps less significant on their own, but also add to the case for obstruction and abuse of power. It is readily apparent that McCabe’s testimony very closely tracks Comey’s congressional testimony. McCabe testified, for example, that the FBI director debriefed senior FBI leadership following encounters with the president and that McCabe and others shared Comey’s views of the inappropriateness of the president’s actions. McCabe corroborated that in February 2017, Comey—following his meeting with the president in the Oval Office—informed his senior FBI leadership that “the president was asking him to end an investigative matter.” The president’s subsequent phone calls to the FBI director were even broader. “Comey’s impression was that the president was still quite frustrated with the fact that we were continuing our investigative efforts into the—into the campaign and Russia issues,” he told the committee.

    The minority report ends with a remarkable statement: It ties the specific timing of McCabe’s testimony to Trump going after not only McCabe but also the FBI’s general counsel. Recall that the general counsel was present during McCabe’s testimony, was cited as a witness by McCabe for important events, and was also then told by the committee that he may be called as a witness. President Trump’s tweets about McCabe and Baker followed within days.

    The report states:

    Only three days after McCabe’s testimony before the Committee, for which then-FBI General Counsel James Baker was present and during which the Majority indicated that they might also call him in as a witness, the President tweeted: “Wow, ‘FBI lawyer James Baker reassigned,’ according to @FoxNews”. Trump turned his sights on McCabe later the same afternoon.​

    Whether such efforts by the president could be a form of witness tampering is a matter that has been discussed before at Just Security and elsewhere. If what inspired Trump was that he had been specifically informed of McCabe’s congressional testimony and its connection to the FBI general counsel as a potential witness, it would be alarming. That said, there are other plausible explanations for the timing of the president’s tweets. Days before his tweets that Saturday, news outlets had raised different questions about the FBI general counsel that could have inspired the president as well. Still, this all leaves obvious questions to be asked about the committee’s possible communications with the White House and about President Trump’s motivations. The minority report appropriately points in the direction of those questions.

    One thing is certain. There are now several data points to add to Just Security’s obstruction of justice timeline.


    Ryan Goodman is the co-editor-in-chief of Just Security; the Anne and Joel Ehrenkranz professor of law at the New York University School of Law; and former special counsel to the general counsel of the Department of Defense.

    Source: https://www.justsecurity.org/55479/evidence-obstruction-justice-house-minority-intelligence-committee-report/

    Source: https://slate.com/news-and-politics/2018/04/new-obstruction-of-justice-evidence-in-the-house-intelligence-committees-minority-report-on-the-russia-investigation.html
     
  14. Zable

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    Unrelated to Andrew McCabe but as an adjunct to the above, here are a couple of excerpts from an interview NBC New’s Chuck Todd did with James Comey on the April 29th edition of Meet the Press.

    Mr Todd lead off with news of the House Intelligence Committee report:

    TODD: The House Republicans put out the House Intelligence Committee report. I'm just curious if you believe it proves what the president says it proves. He claims that this report proves there's no evidence that the Trump campaign colluded, coordinated or conspired with Russia, and that it was all a big hoax by the Democrats based on payments and lies. Is that your interpretation?

    COMEY: That is not my understanding of what the facts were before I left the F.B.I., and I think the most important piece of work is the one the Special Counsel's doing now. This strikes me as a political document.

    TODD: And did the House Intelligence Committee at all serve a good investigative purpose during all this, in your observations?

    COMEY: Not that I can see.

    TODD: Just totally got too politicized?

    COMEY: Yeah, and it wrecked the committee, and it damaged relationships with the FISA Court, the intelligence communities. It's just a wreck.


    Then there was that part about President Trump and the Mueller investigation, with an interesting detail about Justice Department guidelines about a sitting president:

    TODD: You called him (President Trump) in the book (Mr Comey’s A Higher Loyalty: True, Lies and Leadership), "unethical and untethered to the truth." Based on that, does that mean you think it would not be wise for him to sit down with (Special Counsel) Bob Mueller?

    COMEY: That's a great question. That's one only he can answer and his lawyers can answer. It would be important for a lawyer and client, especially this client, to have a real hard conversation about that. I hope that he will allow Director Mueller to complete his work. Whether that includes an interview or not is up to him.

    TODD: You've been a prosecutor most of your professional life. Is he a witness that you would find credible?

    COMEY: I have serious doubts about his credibility.

    CHUCK TODD: The president of the United States?

    COMEY: Yes.

    TODD: Whether he were under oath or not?

    COMEY: Correct. And sometimes people who have serious credibility problems can tell the truth when they realize that the consequences of not telling the truth in an interview or in the grand jury would be dire. But you'd have to go in with a healthy sense that he might lie to you.

    TODD: If Mueller is following Justice Department guidelines that sitting presidents cannot be criminally charged, then doesn't that mean that, so long as Mr. Trump is in the White House, he will never be considered a target of this investigation, only a subject?

    COMEY: There's logic to that. I don't know whether that's the logic of what I've read in the newspaper about him being told he's a subject. But that would logically follow. If you can't be indicted, given that a target is someone on whom there's substantial evidence, enough evidence to charge, then you could never be, if a president can't be indicted.

    TODD: So in this case – and that is Justice Department guidelines – that the Justice Department operates under the guidelines that a sitting President can never be indicted.

    COMEY: My understanding is that’s the current office of legal counsel opinion in the department.


    Source: https://www.nbcnews.com/meet-the-press/meet-press-april-29-2018-n869906
     

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