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Andrew McCabe’s criminal referral, explained

A Justice Department watchdog says McCabe lacked candor about his role in leaks about a Clinton investigation.

Then-acting FBI Director Andrew McCabe testifies before Congress last June.
Pete Marovich/Getty
Andrew Prokop is a senior politics correspondent at Vox, covering the White House, elections, and political scandals and investigations. He’s worked at Vox since the site’s launch in 2014, and before that, he worked as a research assistant at the New Yorker’s Washington, DC, bureau.

The Justice Department’s inspector general has submitted a criminal referral for former FBI Deputy Director Andrew McCabe, according to CNN’s Pamela Brown. Inspector General Michael Horowitz, who submitted a harsh report asserting that McCabe misled Justice Department investigators last week, has referred the matter to the US attorney’s office in Washington, DC, for potential prosecution.

Yet though McCabe has been harshly criticized by President Donald Trump and his allies for months for supposed anti-Trump bias, he’s been investigated for and may be charged about a different topic entirely — that is, his purported attempts to mislead about his role in a leak at Hillary Clinton’s expense.

The gist is that McCabe orchestrated a leak to a Wall Street Journal reporter shortly before the 2016 election, describing private deliberations he’d had with Obama Justice Department officials about an investigation of the Clinton Foundation. McCabe leaked that he had tried to keep this investigation moving forward, over an unnamed Justice Department official’s resistance. His motivation for leaking about this pending investigation, it appeared, was to rebut an earlier Journal article raising questions about his impartiality in the Clinton email probe, and a planned follow-up piece along similar lines.

However, once the FBI began looking into how the Clinton Foundation leak happened, Horowitz claims that McCabe repeatedly misled officials about his involvement. The IG report says McCabe displayed a “lack of candor” on the topic on at least four separate occasions — falsely claiming several times that he didn’t know where the leak had come from, when in fact he had authorized it.

The Justice Department says it was these findings — not Trump’s fury at and angry tweets about McCabe — that spurred Attorney General Jeff Sessions’s controversial firing of McCabe one day before he was set to retire. And it’s these findings that would likely form the basis of any charges against McCabe, should the US attorney for the District of Columbia choose to pursue them.

McCabe has been trying to portray himself as corruptly and wrongly persecuted by President Trump for political and self-interested reasons, suggesting Trump hopes to discredit potential testimony from him in special counsel Robert Mueller’s probe of obstruction of justice. Indeed, the president has aimed a truly astonishing level of vitriol at McCabe, and the news comes in the context of Trump allies in Congress calling for the prosecution of not just McCabe but multiple Justice Department officials as well as Clinton herself.

Still, the allegations against McCabe in the IG report are quite serious, inspectors general traditionally operate with independence from their department leaders, and Horowitz was appointed under President Obama. So it’s too simple to say that McCabe is just being railroaded here. If he did indeed lie to investigators, that’s criminal conduct.

Trump has gone after McCabe for unrelated reasons

To understand the full scope of what’s going on here, it’s useful to separate out President Trump’s gripes with Andrew McCabe from the inspector general’s critique of Andrew McCabe — because they’re quite different.

Trump’s distrust for McCabe personally seems to date back to the revelation that when McCabe’s wife ran for Virginia state Senate in 2015, the state’s Democratic governor, longtime Clinton ally Terry McAuliffe, raised money for her campaign. After the election (she lost), McCabe was involved in overseeing the Clinton email investigation, and conservatives questioned whether this was a conflict. Trump would later cite this information repeatedly, both in public and in private, as showing McCabe’s supposed corruption. (McCabe actually voted in the Republican primary in his state, Virginia, in 2016.)

More broadly, though, Trump has been at war with his own FBI and Justice Department since he fired James Comey. He has repeatedly urged the department to charge his political and bureaucratic opponents with crimes. McCabe, as a Comey ally and career staffer, was a natural obstacle. There’s also been speculation that Trump hopes to discredit McCabe as a potential witness to obstruction of justice in the Mueller probe. So Trump openly campaigned for McCabe’s firing for months, and exulted when it finally happened.

Yet you could follow everything Trump has said about McCabe for months and have no real understanding that he was fired for allegedly lying about his leaks about an investigation into Hillary Clinton.

The IG says McCabe misled investigators about a pre-election leak about Clinton

On October 24, 2016, the Wall Street Journal’s Devlin Barrett published that story about McCabe’s wife getting campaign contributions from McAuliffe, pointing out that McCabe had a role overseeing the Clinton email investigation.

Then on October 30, Barrett published another story. His sources describe, in some detail, interactions McCabe was said to have had with Obama Justice Department officials about an investigation of the Clinton Foundation. It portrays McCabe as heroically trying to keep this investigation moving forward, over an unnamed Justice Department official’s resistance.

McCabe has now admitted to authorizing these leaks. And they were serious ones: They described internal deliberations about an ongoing investigation tied to a major-party presidential nominee and were let out just before a presidential election. The motivation now seems obvious: They were designed to prevent damage to McCabe and the FBI’s reputation from Barrett’s earlier article (and a follow-up piece he was working on) by portraying McCabe as tough on Clinton, and offering a juicy anecdote to prove it.

But the inspector general report claims that McCabe later displayed “lack of candor” to FBI and Justice Department officials about his role in these leaks, in at least four instances.

  1. To Comey on October 31, 2016: The day after the latter Journal article published, Comey and McCabe privately discussed it and the leaks behind it. Comey later told the inspector general that McCabe left the impression that he wasn’t involved in the leak and he didn’t know who was. McCabe disputes this, claiming he fessed up to Comey, and that Comey agreed the leak was a “good” idea. The IG writes that the “overwhelming weight” of circumstantial evidence backs up Comey’s account, not McCabe’s.
  2. To the FBI’s Inspection Division investigators on May 9, 2017: A few months later, two FBI investigators questioned McCabe about the article, and asked about the leaks. The agents claim McCabe told them he had “no idea” where the story came from or who the source was — which, of course, would be a lie. McCabe disputes that this happened, and the interview wasn’t recorded. But both agents say this happened, one of them took notes, and they got McCabe to sign his initials on the Journal article, indicating that the topic was discussed.
  3. To the IG investigators on July 28, 2017: Later, investigators from the inspector general’s office questioned McCabe in a recorded interview, and presented him with texts from his subordinate Lisa Page indicating that she was involved in the leak. McCabe said he didn’t know who gave the information to the Wall Street Journal and that he wasn’t aware of her being authorized to do it. However, a few days after saying this, McCabe contacted investigators and said that after thinking about it more, he may have authorized the leak after all. (Marcy Wheeler suggests that McCabe’s change of heart came because he realized those texts from Page made his previous, false story disclaiming knowledge of the leak untenable.)
  4. To the IG investigators again on November 29, 2017: McCabe returned for another recorded interview with IG investigators, this time admitting his role in the leak. Yet Horowitz says he misled them about other matters. McCabe said in this interview that he’d told Comey about the leak and that Comey was okay with it on October 31, 2016, and claimed he never denied knowledge of the leaks to FBI investigators on May 9, 2017. Yet Horowitz doesn’t find either claim to be credible.

From the report, Horowitz clearly believes that McCabe tried to avoid being fingered for the leak by repeatedly misleading investigators and even Comey, his boss, about it. It is this report that Horowitz submitted to the FBI and that the Justice Department cited in firing McCabe in March, and that is reportedly the basis for the criminal referral.

President Trump’s opinions about McCabe are obviously widely known. Yet there is no indication that Horowitz, whose role is as an internal watchdog and who’s been in the job since 2012, distorted his investigation to try to please the president. If McCabe truly did what Horowitz asserts, it would certainly be a firing offense and may well be criminal too.

McCabe has denied wrongdoing. His lawyer, Michael Bromwich, released a statement saying he is “confident that, unless there is inappropriate pressure from high levels of the Administration, the US Attorney’s Office will conclude that it should decline to prosecute.” A GoFundMe page for McCabe’s legal defense raised $567,996 last month.

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