By Eli Lee
October 14, 2019

Documents recently obtained by CREW, in response to its Freedom of Information Act request for all records related to any investigation or inquiry by the FBI’s Office of Professional Responsibility (OPR) of former FBI Deputy Director Andrew McCabe, provide new information about his termination last year. They also raise questions about whether the Department of Justice (DOJ) followed the FBI’s procedural rules, which require the agency to give senior officials 30 days advance notice prior to disciplinary actions such as dismissal, and about the limited time DOJ provided McCabe and his lawyers to dispute the proposed decision.

On March 16, 2018, McCabe was dismissed from his position by then-Attorney General Jeff Sessions. McCabe’s firing, less than two days before his planned retirement and following months of criticism of McCabe by President Donald Trump, immediately caused a storm of controversy. CREW filed its FOIA request seeking to learn the underlying basis for Mr. McCabe’s termination and to obtain information that would allow the public to assess the  credibility of allegations of political motivation and the role President Trump may have played in Attorney General Sessions’ decision.

Sessions justified his decision by citing inquiries by both DOJ’s Office of Inspector General (OIG) and the FBI’s OPR that found McCabe had “lacked candor,” including under oath, on multiple occasions in his statements to IG investigators conducting a leak investigation, and had made unauthorized disclosures to the news media. According to the attorney general, the OPR merely reviewed the OIG report and its underlying documents, meaning that the attorney general’s decision rested exclusively on the factual record developed by the OIG. 

In the words of Michael R. Bromwich, then-counsel for McCabe, the timeline for McCabe’s termination “was nothing short of extraordinary,” given that the process normally takes “many months, if not longer” yet here “was completed in 23 days.” McCabe and others have suggested he was targeted for his participation in Special Counsel Robert Mueller’s then-ongoing investigation into Russian interference in the 2016 presidential campaign. In August of this year, McCabe sued the DOJ and FBI over his firing, accusing the agencies of bowing to political pressure from President Trump and forgoing required internal processes in order to expedite his dismissal.

The documents CREW recently received from the FBI include email exchanges between OPR officials and higher-ups within the DOJ, communications between OPR and McCabe’s lawyers, and emails exchanged between McCabe and then-FBI director James Comey in 2016. They suggest a disciplinary process that moved faster than internal FBI rules require. This production is part of a rolling disclosure of documents by the FBI. CREW will continue to receive documents and awaits further disclosures from the OIG.

Key findings

According to documents provided in this latest release, senior agency officials like McCabe are entitled to 30 days of advance notice prior to being terminated. The only exception appears to be where there is “reasonable cause to believe the employee has committed a crime for which a sentence of imprisonment can be imposed[.]” The stated reasons for terminating McCabe do not involve such a crime, making this exception inapplicable here. 

Email exchanges included within the documents reveal that McCabe and his lawyers were first given notice of the decision to dismiss him (the “package” discussed in the email screenshotted below) on March 8, only eight days before he was fired.

These emails corroborate McCabe’s claim that he was not given 30 days advance notice before his dismissal as required.

Other messages included within the disclosed documents raise additional questions about the FBI’s process preceding McCabe’s dismissal. Agency guidelines require that FBI officials be given at least seven days to issue a full response to proposed disciplinary actions; the newly released emails appear to show that the file containing the FBI’s reasoning for the decision was first made available for review by McCabe’s lawyers on March 9, seven days before he was fired. As late as the morning of March 16, however, only hours before McCabe’s firing, OPR was still sending records—emails between McCabe and then-FBI Director James Comey—to McCabe’s lawyers for review.

In addition, the response from McCabe’s lawyers to OPR’s findings was submitted at around noon on the day of his firing. The memo Attorney General Sessions signed later that day announcing McCabe’s dismissal did not appear to make any attempt to refute any of the arguments advanced by McCabe’s lawyers or to address their response at all. (The full written response, as well as the DOJ memo authorizing McCabe’s dismissal, are included in the set of documents obtained by CREW.)

While the newly released documents do not pertain to the outcome of the FBI’s internal investigation, they do indicate that McCabe’s firing did not follow standard agency procedures, raising questions as to why.