The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.