On April 13, 2018 the inspector general of the DOJ released a report (which can be found in full here) concerning former acting FBI director Andrew McCabe. Much of the analysis and commentary this report has received has been muddled and unclear, while other, quite shocking, matters the report brings up have been ignored or have not received their due attention. Perhaps this should not be surprising, as the FBI is not an ordinary organization, easily subject to analysis.
Indeed, the FBI is supposed to operate as a black box. It simply does not divulge whether or not a person is being investigated for a crime. That does make sense. After all, merely being investigated does not mean that one is guilty. Yet certainly such disclosure could cause great damage to a person’s life. And disclosure could impede the investigation.
Imagine, then, having the power to lift the veil.
Sometimes lifting the veil is exactly what needs to be done. The “Most Wanted” list would certainly be a good example. One is, let us say, hunting a fugitive or looking for evidence, and one wants the public’s help. This obviously helps the investigation itself.
There is another time the veil may be lifted: when it is in the public interest. Note that the applicable rule merely allows the disclosure to be made; perhaps there should be a duty to disclose. (This exception is described in Section 3.4 of the FBI Policy on Media Relations, which can be found in the I.G. Report, II B.)
At any rate, what did McCabe do? Did he merely disclose something he should not have? The inspector general’s report concludes, albeit in other words, that McCabe organized a secret and undocumented leak to the press, strove to keep it secret, and lied about it.
What prompted McCabe to organize the leak? (Fox’s Catherine Herridge gets it wrong; 1:55). In early October 2016, the Washington Post reported that McCabe ordered agents investigating the Clinton Foundation to “stand down.” Obviously, such negative coverage would have displeased McCabe.
But the matter was exacerbated by the fact that McCabe had earlier received a call from a senior DOJ official who criticized McCabe for the exact opposite of what was alleged in the WaPo article. The DOJ official criticized McCabe, in regard to that same Clinton Foundation investigation, for not (!) having the FBI stand down! So, publicly McCabe was being pilloried for standing down, and privately for not standing down. It is reasonable to suppose that McCabe wanted to clear his name.
Now, none of this should have been happening. The FBI, in accordance with existing regulations, should have informed the American people during the nominating process that there were criminal investigations underway concerning the Clinton Foundation and Mrs. Clinton’s disclosure and mishandling of national secrets. How in any sane, half-fair world the American people would not have an overriding, paramount interest in knowing this is beyond the beyond. None of this madness would have ensued.
We are, however, living in the world of beyond the beyond.
Let us return to the blow-by-blow. McCabe knew, as the inspector general’s report states, that Comey had recently been asked while testifying before Congress whether there was an investigation into the Clinton Foundation. Comey had refused to acknowledge that there was one. And as the inspector’s report points out, McCabe knew that Comey would not go along with a disclosure to the public of the usual, public, accountable, and reviewable sort.
(That is because, as Comey recently related, his decisions concerning the Clinton investigation were influenced by his wish not to delegitimize Clinton’s election as president, which he assumed would happen. This is weird as heck: there is a fevered desire not to delegitimize Clinton, the target of a criminal espionage case and whose foundation is the target of another, but in contrast, there is a fevered desire to delegitimize the presidency of Donald Trump, who, to this date, as Special Counsel Robert Mueller has reportedly affirmed, is not the target of any criminal investigation.)
Not being able to go the usual, public, documented, and accountable route, McCabe was undeterred. He organized a secret leak, undocumented and unreviewable, through two underlings at headquarters.
The leaked information appeared in an anonymously sourced article in the Washington Post on Sunday, October 30, 2016. Describing McCabe’s conversation with the senior DOJ official, it depicted McCabe as having defended the ongoing FBI investigation into the Clinton Foundation. This contradicted the earlier “stand down” story and presented McCabe in a good light. As the inspector’s report notes, it also necessarily revealed that indeed, there was such an investigation.
On that same Sunday, according to the inspector general’s report, McCabe did something remarkable. McCabe called, separately, the head of the FBI’s New York City office and his counterpart in D.C. to berate them as if they or their offices were responsible for the leak McCabe had just engineered.
It is clear from the phone calls to the New York and Washington FBI field office leadership alone that McCabe had planned and desired to keep the fact that he had leaked the information secret.
This is amazing in that McCabe knew that certain FBI personnel at headquarters were officially investigating leaks, including his. How had he planned to keep the charade going? Eventually, he admitted to those agents that he was the source of the disclosure. The inspector’s report quotes one of them as saying to McCabe that “you understand” that they had put:
… long nights and weekends working on this, trying to find out who amongst your ranks of trusted people would, would do something like that. And he kind of just looked down, kind of nodded, and said, yeah, I’m sorry. (IG Report, III B 17)
But because McCabe had not acted alone, instead using two FBI officials to contact the reporter, those two officials also knew that McCabe was the source of the leak. Therefore, the question arises as to why he had such great faith that these underlings would keep his secret. Had there indeed been a cabal? More than a cabal – a conspiracy? The inspector general’s report is silent on this question; indeed, it does not raise it.
McCabe’s main defense is fascinating, in a way. It reveals something about how the FBI’s black box should have its lid opened. McCabe has argued that he, as deputy director, had the authority to lift the lid – that is to say, to make disclosures. The applicable regulation on its face could be said to support this contention (I.G. Report, II B).
But by leaking?
Fidelity. Bravery. Integrity.
In other words, for McCabe’s argument to have merit, it would be unobjectionable for the top people at the FBI to organize secret, undocumented, unreviewable leaks. Surreptitious disclosures.
No way. Not in America.
The FBI “must always stand” for Fidelity, Bravery, and Integrity, words constituting the FBI’s motto.
One could argue in support of integrity from a moral standpoint. If surreptitious but (secretly) authorized, it must be lied about to those who investigate real leaks. But an insistence on integrity is also requisite from many practical viewpoints.
For instance, people who cooperate with the FBI have to trust it. Leaking does not enhance the image of professionalism necessary for informants who rely upon the FBI’s professionalism and secrecy when they risk their lives and livelihoods to cooperate. Leaks are also demoralizing for the rank and file. One could go on and on. Surreptitious disclosure can never be in the interest of the FBI. One who leaks has no integrity.
Yet we have seen that McCabe and Comey were more than comfortable with leaking.
What is the opposite of integrity? Perfidy. Untrustworthiness.
Every day seems to bring new revelations of lack of integrity on the part of the top people at the DOJ and the FBI. As this is being written, a headline reads, “Documents Show ‘Concerning Level of Coordination’ between FBI, DOJ in Clinton Email Probe” – coordination that was effectively hidden from Congress and that, among other things, limited the scope of the investigation.
One could say it is the Deep State run amok. But it does not seem that way. It seems to be business as usual. The left is casually, routinely, unconsciously, and cabalistically coddled and protected, whereas the right gets the book thrown at it. How it all came to this is another story.
But at the very least, a great advantage the cabal enjoyed due to its ability to masquerade as mere duty-bound, objective officials of integrity has forever been blown away. Let us hope this presents a window of opportunity and that we take advantage of it.
The author is a former law school dean and former FBI agent, awarded the National Intelligence Medal of Achievement (NIMA). You may follow him on Twitter at @tadasklimas1.
