The McCabe IG Report: This Is What It Looks Like When The Government Comes For You

Everything looks a little different when you look at it in a vacuum.

Andrew McCabe

If you want a front-row seat for what it’s like to be investigated by the federal government for a white-collar crime, I can’t recommend the Inspector General’s report on former Deputy FBI Director Andrew McCabe highly enough. It’s got a lot of the elements of your classic white-collar investigation: a complicated fact pattern, a smart person who makes what appears to have been a stupid decision for reasons that aren’t all bad, and an aggressive investigation that involves several interviews that ultimately conclude the target was not telling the truth.

It should also be required reading for anyone who works in law enforcement. This, my friends, is what it looks like when the government comes for you.

In my last column, I wrote about the decision to fire McCabe immediately before he was scheduled to retire, based on the findings of the report. In that column, I argued that almost no matter what he is alleged to have done, our country would ultimately be hurt worse by allowing President Trump to Twitter-claim his scalp than it would be by overlooking the questionable actions of a law enforcement official. Having now read the report — and seen the President’s ridiculous tweeting about it — I stand by that opinion.

As others have already pointed out, the IG’s report is thorough and fairly damning. But rather than rehash that, I want to discuss a few other things that struck me about it and go beyond whether he did what he’s accused of having done and whether he should have been fired.

The first thing that struck me when I read the report was that McCabe seems to have genuinely believed he had good motives. To be sure, they were mixed: the information he leaked — about pressure that he allegedly received from a high ranking DOJ official to stand down on the Clinton Foundation investigation until after the election — was self-serving but also arguably in the public interest. It was self-serving because McCabe clearly wanted to combat the story that was being reported — that he himself had told FBI agents to stand down in the investigation, allegedly because of support that his wife received from Clinton allies in her run for Virginia state office. But it was arguably in the public interest because the leak suggested that the FBI was actually standing up to political pressure from DOJ, not imposing such pressure.

Mixed motives are common in white-collar cases. Anyone who’s done defense work for any amount of time will tell you that no one is entirely good, or entirely bad, despite what many prosecutors may lead you to believe. I wonder if, as McCabe was going through this investigation, he thought back to some of the people that he had investigated and looked at them differently than he may have before.

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The second striking thing about the investigation is the sheer number of times that McCabe was interviewed about the leak — four times over the course of six months.

In many ways, this is the most interesting part of the report. Like all reports of this kind, it is written in a vacuum, as if the only thing that the Deputy Director of the FBI had to do, or had to think about, on each of these four occasions was this investigation. No mention is made of what else he was working on, what was going on in his personal life, or anything else that might have distracted him from the task of the interview before him.

Should he have been focused on the interview? Of course, and I suspect he was, to the best of his ability. But, the government loves to focus on the trees and forget the forest. Is it possible that the man simply forgot? Or that he sometimes answered questions less elegantly than he could have? The report itself doesn’t give a whole lot of support for that conclusion, but the report is also written with a particular goal in mind — to prove the case against McCabe.

Finally, there’s the main finding of the report – that McCabe “lacked candor” on several occasions when he was interviewed, both under oath and not under oath, by federal agents. Here, McCabe is almost certain to get lucky. Finding that he “lacked candor” is not the same thing as finding that he outright lied. It seems highly unlikely that he is going to be charged criminally (no matter how much President Trump may want that). And so, even with a long and fairly damning report that concludes he repeatedly failed to tell the truth to the FBI, the worst thing that will happen to him is that he will lose his job and not get his full pension. To be sure, that’s bad, but it isn’t in the same universe as a criminal charge.

Imagine what would happen if the person found to have “lacked candor” during several interviews with the government weren’t Andrew McCabe — if it were, instead, the garden-variety target of a government investigation. Does anyone who’s spent even a hot second of time in the criminal justice system truly believe that an Average Joe who was found to have “lacked candor” in four different interviews with the FBI would be able to walk away without a charge?

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If it sounds like I’m talking out of both sides of my mouth here — on the one hand, saying that he shouldn’t be prosecuted, while on the other hand, saying that he is receiving special treatment — that’s because I am. I am very conflicted about this case; we live in very strange times. If the president had not engaged in such a vicious, personal crusade against him, I would almost certainly be coming out harder on him — because I do think that law enforcement agents have to follow the same rules that everybody else does. But that is, unfortunately, not the state of play.

In the end, I think that our country will still suffer more if President Trump’s pursuit of McCabe goes criminal.  McCabe seems, like most people I’ve met in my line of work, to be a good man who made a mistake and has already paid a heavy price for that. He should be allowed to move on and disprove, as countless people before him have done, the most famously wrong quote in American literary history: “There are no second acts in American lives.”

Andrew McCabe deserves his second act.


Justin Dillon is a partner at KaiserDillon PLLC in Washington, DC, where he focuses on white-collar criminal defense and campus disciplinary matters. Before joining the firm, he worked as an Assistant United States Attorney in Washington, DC, and at the Civil Rights Division of the Justice Department. His email is jdillon@kaiserdillon.com.