The Justice Department’s Inspector General (IG) is examining whether former FBI Deputy Director Andrew McCabe put off a request to dig through a batch of Hillary Clinton-related emails discovered in the run-up to the 2016 election, the Washington Post reported Tuesday.
The Post’s report—as well as other coverage of the role of the IG’s probe in McCabe’s abrupt resignation Monday—suggests McCabe may have acted improperly by waiting three weeks to act on the request from agents in the New York office. FBI director Chris Wray furthered that notion in a memo to FBI employees sent Monday night, which reportedly said McCabe’s departure was related to the forthcoming IG report.
Underlying the issue is the question of whether McCabe’s goal in slow-walking the probe was to avoid damaging Clinton’s campaign. McCabe’s wife ran for office as a Democrat in 2015, and President Trump and his allies have sought to paint him as part of an anti-Trump cabal at the FBI.
But the emerging consensus that McCabe acted improperly seems off base. For one thing, the IG report has yet to be released, meaning the public has only a very incomplete picture of the events at issue.
More important, if McCabe was moving slowly on the Clinton probe, he may have had good reason to do so: The Justice Department has a longstanding policy instructing staff to be especially cautious about taking any investigative steps that could influence elections, especially in the final stages of a campaign.
An internal Justice Department memo issued in 2012 to all employees on “Election Year Sensitivities” warns against taking any “overt investigative steps” near an election without getting guidance from the department’s Public Integrity Section.
Rather than a sign of pro-Clinton bias, McCabe’s caution seems to suggest he was following the rules, former federal prosecutors told TPM.
“The DOJ should do everything possible not to influence an upcoming election at any level,” Steve Miller, a 17-year veteran of the U.S. Attorney’s Office in Chicago, told TPM. “So if the reports are true that he slow-rolled it, that would be, in my view, consistent with DOJ policy. Nothing remotely nefarious jumps out at me.”
“I can’t imagine any DOJ policy was violated here,” Miller added.
To be sure, there’s no blanket policy that applies in all cases. It’s always a judgment call. But Miller said that in the case of the Clinton emails, the balance of harms clearly dictates in favor of a delay, in part because nothing would have been lost by waiting.
“Three weeks in a criminal investigation where there’s no statute of limitations issue and people’s lives are not in danger is a nanosecond,” Miller added. There’s no DOJ policy, he said, requiring the FBI to “drop everything to turn to a non-time-sensitive issue like reviewing another batch of emails in an investigation.”
Breaking from this cautious precedent can have disastrous consequences, as McCabe’s former boss James Comey learned. The former FBI director became a lightning rod for criticism after first announcing in a July 2016 press conference that the Clinton email probe would end with no charges, then telling Congress less than two weeks before the election that the new batch of emails had been discovered on the laptop of Anthony Weiner, then the husband of Clinton’s top aide, Huma Abedin. The FBI was at the time probing whether Weiner engaged in sexual relationships online with minors.
Comey himself testified before Congress that it made him “mildly nauseous” to think his actions could have affected the results of the election. Poll analysis site 538 determined that Clinton’s standing in the narrow election plummeting 2.9 points in the week after Comey’s letter to Congress came out.
The former FBI director’s disclosures “never should have happened,” Nick Akerman, a former federal prosecutor who worked on the Watergate investigation, told TPM.
Indeed, it was Comey’s extraordinary departure from regular procedure that appears to have prompted the January 2017 launch of Inspector General Michael Horowitz’s probe in the first place. But the wide-ranging probe turned up the text message exchange between two FBI employees that Republicans have used to claim an anti-Trump plot at the bureau. The Post report suggests that McCabe’s handling of the Clinton emails has since also become a major focus.
That points to another reason why McCabe may have had good reason to fear influencing the election. Comey’s decision ultimately to disclose the emails to Congress reportedly came after FBI agents in the New York office exerted pressure to get the news out. Pushing forward with the investigation, McCabe may reasonably have felt, could have made it more likely that the news leaked out.
And as the Post notes, McCabe also appears to have wanted to make sure the emails were relevant to the Clinton probe—which they turned out not to be.
“The agents on the Weiner case wanted to talk to the Clinton email investigators and see whether the messages were potentially important,” the Post reports. “Some people familiar with the matter said officials at FBI headquarters asked the New York agents to analyze the emails’ metadata—the sender, recipient and times of the messages—to see whether they seemed relevant to the closed probe.”
But much of the coverage of the story has downplayed those explanations and instead left the impression that McCabe likely acted improperly.
A CNN host on Wednesday morning flatly asserted that the IG report shows McCabe “sat on” the emails—in fact, the report hasn’t been released yet—then asked: “Was he slow-walking this investigation leading up to the election? And that would matter a lot.”
A short time later, another host on the network, Brianna Keilar, asked Rep. Mike Quigley (D-IL) whether the House Intelligence Committee should probe the matter.
Akerman, the former Watergate prosecutor, told TPM it was perfectly reasonable for the IG to look into the delay. But he suggested Comey’s actions should be the primary focus of the investigation.
“They should never have done it at that late stage,” Akerman said of the former FBI director’s October 2016 pronouncement. “Basically every reason why you don’t do it came out here—exactly the wrong way.”