Saying good-bye to Andrew McCabe

Without the hagiography

|The Volokh Conspiracy |

Jim Comey has tweeted his support for Andrew McCabe, who is leaving the No. 2 post at FBI early: "Special Agent Andrew McCabe stood tall over the last 8 months, when small people were trying to tear down an institution we all depend on. He served with distinction for two decades." I'm sure Andrew McCabe was an able agent for decades, but I can't join Jim Comey in celebrating the way McCabe did his job over the past year or two. That doesn't mean that all the White House and Congressional attacks on the FBI are justified, simply that we ought to delay McCabe's canonization until the facts are in.

As most people now know, Andrew McCabe's wife ran for State Senate in Virginia in 2015 with the enthusiastic support of Terry McAuliffe, former Democratic party chief and then Democratic governor of Virginia. McAuliffe's PAC and the state Democratic party gave Jill McCabe financial and in-kind support totalling more than $650 thousand – over a third of her entire warchest. The PAC had a lot to give in part because Hillary Clinton was a featured speaker at a fundraiser for it in June 2015.

At the time, McCabe was the head of the FBI's Washington Field Office. He announced that he would take no part in his wife's campaign, and he sought ethics advice from the Bureau's compliance officer and its general counsel. The advice had two parts: he should recuse himself from corruption investigations of Virginia politicians, and his future participation in "any investigation that may present an actual or perceived conflict of interest" was to be reviewed by the field office's ethics expert; if an investigation posed even a "potential" conflict of interest, McCabe was to be excluded from all aspects of the case. McCabe may have followed that last procedure for a time, but there's little sign that the procedure survived his rapid promotion in the months that followed. In July 2015, he took the No. 3 position at the FBI, and in February 2016 the No. 2 job.

As deputy director, McCabe took on substantial responsibility for overseeing the Clinton investigation. I can't say for sure whether he kept conducting an "actual or perceived conflict of interest review" of the investigations he supervised, but if he had, it's hard to believe he would have continued to supervise the Clinton probe. I say that because McCabe ultimately did recuse himself from the investigation, but only after guiding it for months, all the way to the conclusion that no charges were justified. He did not recuse himself until the second, lightning-round Clinton investigation, and then most likely because of a Wall Street Journal article that shone a harsh light on connections between McCabe, his wife, Terry McAuliffe, and Clinton.

The Trump investigation was well under way at that point, but not public. Perhaps the Trump campaign probes were never put through the recommended procedure; the protocol could have been formally or informally dropped, either when his wife lost her campaign or when McCabe was promoted. Even so, one would have thought that the experience of unceremoniously exiting the Clinton probe would have sensitized him to the appearance of continuing to investigate Clinton's rival. But McCabe stayed with that investigation, to the point of playing a crucial role in the FBI's interview of Michael Flynn.

Flynn's interview was crucial to the investigators, fatal to him, and consistent with the FBI playbook: Interview the subject in a friendly, disarming context. Introduce issues on which the subject will be tempted to dissemble. Lock the dissembling into a concrete lie. And—boom! – just like that the bureau has a felony to work with.

The interview with Flynn seems to have fit that mold. Flynn was known to have denied that he discussed sanctions with Amb. Kislyak. But the Bureau apparently had a recording of the call that contradicted those assurances. If Flynn repeated his denials to an FBI investigative team, he'd be toast. But Flynn was unlikely to meet with a criminal or counterintelligence team investigating him without getting legal counsel and perhaps taking a moment to reconsider what up to that point had simply been the sort of lies that are all too common in politics and government. So it was crucial that Flynn not know the purpose of the meeting. Enter Andrew McCabe. According to NBC News:

A brief phone call from the office of Andrew McCabe, the deputy FBI director, to a scheduler for Flynn on Jan. 24 set the interview in motion, according to people familiar with the matter. The scheduler was told the FBI wanted to speak with Flynn later that day, these people said, and the meeting was placed on Flynn's schedule. The scheduler didn't ask the reason for the meeting, and the FBI didn't volunteer it, one person familiar with the matter said.

This strikes me as remarkable and troubling. Flynn was the national security adviser. He would expect to get all kinds of FBI briefings, and to resolve disputes the FBI might have with other agencies. His routine interface with the Bureau would be with the Director or the Deputy Director. So McCabe's call seeking a meeting for his agents would raise no questions, while a call directly from the investigators would. If NBC News is right, and he did set up the meeting in so surreptitious a fashion, McCabe was not just supervising the investigation, he was an integral part of it. What's more, the tactic worked. Flynn took the meeting, the bureau got the false statements it expected, and not long after that, Michael Flynn was gone.

I can't say I'm sorry. Flynn's judgment, especially on the Russians, was highly suspect. But it's hard to justify McCabe's reported actions. The bureau is allowed to dissemble and even lie in the course of its investigations, but I doubt the bureau would have done the same to Susan Rice, even if a FISA tap had caught her saying one thing to a foreign government and another to a rival US official, something that I suspect happens quite often. It's even harder to believe that the FBI's deputy director would have joined personally in the sting.

In short, it is fair to conclude that McCabe's family ties to Clinton's circle of supporters created at least the appearance of a conflict of interest for McCabe—whether he was investigating Team Clinton or Team Trump. More pointedly, if McCabe intervened personally to construct a perjury trap for the Trump administration's national security adviser, there's reason to believe that the conflict was more than just apparent. If nothing else, McCabe's blind spot for the apparent conflict – and the understandable mistrust it created in the Trump White House – makes McCabe's departure entirely appropriate.

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54 responses to “Saying good-bye to Andrew McCabe

  1. Can we toss in entrapment as well?

    Lying to an individual to get them to ask you to state something you’re saying is true. Then publicly using that statement against them, while not saying you had told them it was true.

  2. People seem rather shocked that the FBI’s spying on a presidential campaign for the opposing party has created problems for it, even if they followed all the requirements (which they may or may not have).

    1. The FBI has an opposing party?

      1. As you certainly know, the FBI is part of a presidential administration, which has an opposing party.

        1. I don’t think that notion functions in the context of the above sentence, unless you buy the President is demanding direct loyalty from the FBI leadership.

          Which I believe postdates the election in question.

          1. The only way that a president can influence his administration is to demand direct loyalty? What a strange thing to say. But in any event, I’m rather surprised by the lack of concern over spying on the opposing party’s presidential candidates. I wonder if this will become a regular thing.

            1. I’m not even being devil’s advocate here – I’ve never heard of the FBI being associated with a particular party. Call it Hoover’s legacy or whatever, but party loyalty has never been even considered as a concern with the FBI, except by conspiracy theorists about the Clintons back in the day.

              Now, of you want to talk about individual loyalty of specific officers, that’s another thing (and as noted below, a case that requires some truth-bending to make wrt McCabe).

              1. Is your point that you wish I’d said that the FBI was spying on the party opposing their boss, the president? I thought what I said was pretty clear to anyone who knows how our government functions.

                Of course, what happened here was that the FBI was spying on the campaign opposing the chief executive, and after his party the election, said chief executive’s administration leaked details of the investigation out of concern that the incoming president would use his control of the FBI to undermine the investigation. This leaking severely undermined the incoming administration. If it turns out that there was no criminal activity by the Trump campaign involving collusion, this will be a colossal fuck-up by Obama, whatever you think of Trump. And I don’t think much of him.

                1. I continue to think the party angle is just irrelevant.
                  The FBI would be under the same attack if it was staffed by the Bush Administration.

                  1. Well, fortunately the FBI under Bush didn’t spy on the Obama campaign.

                    1. Probably not.

                      But any FBI worth it’s salt would not have stopped an investigation because the target joined a Presidential campaign. especially if it is a counterintelligence investigation.
                      I try and resist counterfactuals, but I have a hard time believing a Bush era FBI would be in a different position.

                      If it’s optics you’re talking about, that ship has sailed and been buried under a ton of hopped-up propaganda and weird secret society madness targeted at specific individuals.

                    2. I would point out that the Trump FBI, under the GOP, continued these investigations.

                    3. I would point out that the Trump FBI, under the GOP, continued these investigations.

                      And what would happen if Trump stopped them from doing so? 11 letter word. Starts with “I”

                      So it’s meaningless that it has.

                    4. Right, Careless – it’s almost like the FBI is independent.

                    5. “Trump FBI”

                      Too funny.

                    6. Sure, but the Trump administration investing its own campaign does’t carry the same concerns as the Obama administration wiretapping the Trump campaign.

                    7. TiP – Only if you assume party matters.

                  2. Given that the loons are going after Rosenstein, who was Trump’s own appointee, I don’t think your claim is too much of a stretch.

                    1. Where “loons” = rank-and-file Republicans and the entire current administration?

  3. The ghost of Mark Felt approves of McCabe.

    No catch nickname for him though. Sad.

    1. catchy

    2. Phelps, I think you mean.

      And I’m not sure the analogy you are making is very flattering to Trump.

      1. “William Mark Felt Sr. was a Federal Bureau of Investigation special agent and the Bureau’s Associate Director, the FBI’s second-highest-ranking post, from May 1972 until his retirement from the FBI in June 1973. During his time as Associate Director, Felt served as an anonymous informant, nicknamed “Deep Throat,” to reporters Bob Woodward and Carl Bernstei?” wiki

        “very flattering to Trump”

        McCabe, like Felt [and Hoover] before him, interfered in the US government for his own private interests.

        I guess having the internal security service secretly influence politics is kosher because Nixon did some wrong things.

        1. Wow, I stand corrected. I was like ‘I should Google this, just to be sure…naaah, I’m super sure!

          I don’t often see people against Watergate. I’m honestly interested in this take.

          Also, too, though, even after being humbled above my partisan self cannot resist: I wonder how you might feel about having an international security service work with a presidential campaign to influence US politics when Hillary did some shady things?

          1. Nixon did nothing that JFK and LBJ had not done. For instance, the MLK wiretaps.

            I worry more about our internal security service than a foreign service stealing some improper e-mails.

            1. Internal security is a means to an end, not an end in and of itself. If security is elevated over the integrity of our election system, that’s dumb. If our internal security is great but external forces can do all the same mischief, that’s arguably worse.

              1. Russia is a declining power, their recent negative impact on the US mainly created by the hair on fire refusal to accept the results of the election by The Resistance. The Russians did not make Clinton keep a private server or take Wisconsin out of her GPS.

                A corrupt FBI on the other hand is a direct threat to every American.

                1. It could be Uzbei-beki-stan-stan, with no hope of making any kind of worldwide gains, but if they’re screwing with our elections that’s bad.

                  Of course you think liberals are the problem with our US. It’s not like the right delegitimizes anything. Certainly not Obama’s election.
                  ======================
                  Deep Throat was not acting on behalf of a corrupt FBI.

                  1. He was the #2 man at FBI. Grey was an interim political appointee, an outsider.

                    Felt was acting out of corrupt motives, using the resources of the FBI for revenge.

                    I guess if the guy in charge is corrupt, it has no impact on the agency.

                2. Whether Clinton kept a private server or insufficiently campaigned in Wisconsin is irrelevant.

                  The standard for winning an election is not for a perfect person running a perfect campaign, it’s being a better candidate with a better campaign. Clinton arguably did both those things, but the added factor of Russian interference was enough to tip the scales.

                  Actively downplaying and excusing a foreign adversary surreptitiously manipulating your elections is a major threat to democracy. If you add the alleged active collaboration with that foreign adversary you’ve now got the internal security issues you also fear.

                  1. “better candidate”

                    Clinton lost to Donald Trump, having blown a no-lose 2008 nomination.

                    She was the worst candidate in US history. The Russians are just a “stab in the back myth” pushed by sore losers.

                  2. Clinton arguably did both those things, but the added factor of Russian interference was enough to tip the scales.

                    Please, cite any evidence for this, no matter how flimsy. Just one person whose vote was flipped. This Russian hysteria has been incredibly funny.

                    1. And it’s particularly funny as the world record holder in modern times for manipulating elections in other countries is the USA

                    2. Please, cite any evidence for this, no matter how flimsy. Just one person whose vote was flipped. This Russian hysteria has been incredibly funny.

                      You’re being disingenuous.

                      If I found a poll that showed a dip around release of emails hacked by the Russians you’d argue the dip was either unrelated, polling noise, or went away by the election date.

                      If I found people testifying they stayed home or changed their votes because of concerns over the contexts of the hacked emails you’d claim they were lying or mistaken.

                      You’re only asking for evidence because you know actual incontrovertible evidence of how an event affected votes is impossible to find.

      2. “And I’m not sure the analogy you are making is very flattering to Trump.”

        Because of the NCAA rules violation?

  4. The advice had two parts: he should recuse himself from corruption investigations of Virginia politicians, and his future participation in “any investigation that may present an actual or perceived conflict of interest” was to be reviewed by the field office’s ethics expert; if an investigation posed even a “potential” conflict of interest, McCabe was to be excluded from all aspects of the case. McCabe may have followed that last procedure for a time, but there’s little sign that the procedure survived his rapid promotion in the months that followed.

    This summary of the facts is at best disingenuous; at worst dishonest. What the discussion omits is that the advice also says “This protocol will be reassessed and adjusted as necessary and at the conclusion of Dr. McCabe’s campaign in November, 2015.” McCabe was not named deputy director until February 2016, three months after that deadline, after she had lost the election.

    1. “This summary of the facts is at best disingenuous; at worst dishonest.”

      You missed Stewart Baker, didn’t you?

      1. I recall a bunch of SB being evil, being weird, being ridiculous, and never being a positive for the site, but I don’t actually recall him lying before.

        Which, admittedly, is quite possibly a failure of my memory

      2. You’re very cynical, Loki.

  5. I’m often dismayed that senior authorities who have significant power (all parties, govt/business/religion, etc.), turn into complete wackos and lose all sense of decorum, class, and most importantly integrity.

    1. Do you think a first Assistant Secretary for Policy at the United States Department of Homeland Security counts as a “senior authority”?

  6. I suspect that some other embarrassing information would emerge if someone were to investigate how it is that McCabe came to be selected as head of the FBI’s Washington Field Office and then promoted to Deputy Director. There are probably some close relationships with members of the Clinton machine that have yet to come to light.

    1. Woah… it’s like “chain migration” theory as applied to a conspiracy. You must may be one step away from a unified theory of conspiracy with HRC at the center! You totally blue my mind there, dude.

  7. Perhaps this phrase “perceived conflict of interest” is a problem. Literally speaking, something is only a perceived conflict of interest if someone perceives it. If people do not know the facts then there is no perception of a conflict of interest. Perhaps that is why McCabe only recused himself after the facts were reported in the Journal and not when the facts arose.

    Of course, the phrase is preceded by “may present” but it might be possible read the “may” as applying only to actual conflict. It might be clearer to use the phrase:

    “any investigation that may present an actual or may present a perceived conflict of interest”

  8. Of all of the things that make the Volokh Conspiracy’s claim to be ‘often libertarian’ and ‘libertarianish’ a silly, telling lie, Stewart Baker might be my favorite.

    Carry on, clingers.

    1. Baker finally allows for criticism of the tyrants who run our surveillance state, and this is what prompts you to question his libertarian bona fides? Is your point that he should be condemning McCabe and company much more strongly?

  9. Been wondering . . . . Why is it that donations to the Clinton Foundation came to a halt on Nov. 9? Hundreds of millions no longer pouring in from around world — why??? Did we solve world hunger and poverty when I wasn’t looking?

    Can anyone help me out here?

    1. Who says they came to a halt?

  10. This is worrying.

    While RALK may disagree, I find the Volokh comentariat to reflect the best conservativism has to offer. All but a few are willing to substantively engage with the other side, and many even seem to think us liberals are stupid as opposed to evil!

    But all except for…one? (David Nieporent,) seem fully bought into the idea that the FBI is currently working to overthrow the President. Given that understanding, I would imagine that you are all OK with Trump firing Mueller and commencing an ideological purge of the FBI. If I believed there was an FBI slow coup, I would think the same thing.

    If the intellectual elites are thinking like this, I am coming to believe Trump could Sat Night Massacre the DoJ and FBI without any inter-party pushback. Which is troubling in and of itself, but if you consider the momentum it symbolizes…oy.

    1. Meh.

      1. The executive power, while limited, is vested in the President. The executive is strongly unitary, and this is something I learned/became convinced of while Obama was President. At the same time there are sharp constitutional limits on executive power that haven’t been well observed at times.

      2. Plenty of high level federal bureaucrats and their cohorts in politics and the media have told us explicitly that it is their goal to “overthrow”, or at least undermine to the greatest possible degree, this President. Without making any specific claims, forgive us if we assume that this may in fact be the case for some individuals.

      3. Drain the swamp baby. I don’t care if Trump fires all of them. In business you might call it a restructuring or “going in a different direction.” As soon as you show me that this was done for the improper motive of covering up some crime like the Watergate B&E, then we have a different story.

      1. So lets go back to Watergate. Would it have been the best thing for America if Nixon has just fired everyone down to Bork, Bork fired the special prosecutor, and then continued Presidentin’ until his term was up?

        1. No, I don’t think it is the best thing for America to have a President fire everyone in an attempt to cover up a crime. (Same goes for an obviously futile and counterproductive attempt like Trump’s firing of Comey would be if the motive were such).

          Regardless, the executive power is vested in the President. As for whether THAT is the best thing for America, I’d say our Constitution seems pretty decent but I’m open to hearing your ideas for a new one.

    2. “fully bought into the idea that the FBI is currently working to overthrow the President.” Release the memo? Wouldn’t it be a really good idea to find out if that idea is true, by (almost) any means necessary?
      BTW, you could water your idea down considerably and it would still be totally unacceptable. Doesn’t need to be “the FBI”, just a powerful group within it. Doesn’t need to be “working to overthrow the President”, just trying to defeat his attempts to get rid of overt liberal bias in his institutions.

  11. Yeah. The liberal side of the world doesn’t seem to be engaging at all with what concerns conservatives: That the FBI has been controlled by a group of people who are de facto working for the Democratic Party against their political enemies.
    The country went through this once, w J. Edgar Hoover. It’s bad for the FBI and bad for the country.

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