Judge Questions Whether DOJ 'Manipulated' Him in McCabe Public Records Suit

A federal judge on Thursday questioned whether the U.S. Justice Department had “manipulated” him into stalling the release of records related to Andrew McCabe, the former deputy FBI director who has faced a criminal investigation since last year centered on whether he lied to federal agents.

At a hearing in Washington’s federal trial court, U.S. District Judge Reggie Walton grew animated as he grilled Justice Department lawyers about their recent shift in a lawsuit brought by the watchdog group Citizens for Ethics and Responsibility in Washington. The group is seeking records related to an internal FBI inquiry into McCabe’s dealings with the news media.

For months, the Justice Department had argued that records should be withheld on the ground that they related to an ongoing law enforcement proceeding. But on Wednesday, the Justice Department abandoned that argument for keeping the records secret, signaling that prosecutors could be standing down from pursuing charges against McCabe. Prosecutors still haven’t publicly stated the status of any ongoing investigation.

Walton appeared struck by the sudden shift in the litigation, saying Thursday he had agreed to delays based on the Justice Department’s position.

“I do have some concern about whether I was manipulated. … It does cause me concern,” Walton said.

Justice Department lawyer Justin Sandberg said his arguments for withholding the records were made in “good faith” and had been “amply justified.”

“Your honor,” he said, “you’re not being manipulated.”

Walton had set a Nov. 15 deadline for the government to inform him whether prosecutors were planning to bring charges against McCabe. Walton reportedly said at the earlier hearing: “This matter is a high-profile matter. And I think it does, while the matter hangs in limbo, it does undermine the credibility, not only of the Justice Department because it’s not making these hard decisions, but also the court, because Congress enacted this [open records] legislation for the purpose of the American public being made aware of what its government is doing.”

At Thursday’s hearing, Walton did not explicitly ask whether the Justice Department had decided to drop its investigation into McCabe. But “something must have happened” for the Justice Department to discard arguments for keeping records concealed, the judge said. “It does cause me to have some question about why,” Walton said.

Sandberg did not provide any firm answer, prompting Walton to voice frustration with the Justice Department’s drawn-out consideration of its McCabe inquiry. Walton said it was “not a hard case” to weigh. “Maybe politically, but not factually or legally,” he said.

Sandberg at one point offered to speak privately with Walton. After speaking in his chambers for 10 minutes, they emerged and set a schedule under which the Justice Department will produce 200 documents a month to CREW.

McCabe’s defense lawyers in September asked prosecutors whether a grand jury had declined to indict him. The email, sent by Michael Bromwich, now a senior counsel at Steptoe & Johnson LLP, followed press reports that a grand jury had met to consider charges against McCabe without issuing an indictment.

McCabe’s defense lawyers had previously appealed to Deputy Attorney General Jeff Rosen, arguing that the Justice Department lacked evidence to charge him. Rosen ultimately declined to step in to stave off a prosecution.

Andrew McCabe, former deputy director of the FBI, on May 20, 2015. Photo by Diego M. Radzinschi/THE NATIONAL LAW JOURNAL

Last year, the Justice Department’s inspector general concluded that McCabe misled internal investigators when asked about his role providing information to a Wall Street Journal reporter in 2016 about an investigation into the Clinton Foundation. The inspector general, Michael Horowitz, referred those findings to prosecutors in Washington.

McCabe has long disputed that he lacked candor in the internal investigation. In March 2018, McCabe was fired just days before he was set to retire with full benefits. McCabe, represented by Arnold & Porter Kaye Scholer, contested his firing in a lawsuit this year that alleged his removal was part of an “unconstitutional plan” by the Trump administration to oust law enforcement officials deemed disloyal to the president.

The Justice Department filed court papers earlier this month to dismiss the case, which is pending before U.S. District Judge Randolph Moss in Washington. “If the FBI finds that one of its special agents lacked candor under oath, the standard penalty is removal,” DOJ lawyers said in court papers. “Andrew G. McCabe was one of those special agents.”

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