Politico

Judge rejects DOJ attempt to scrap McCabe lawsuit, orders discovery


What happened: A federal judge on Thursday rejected the Justice Department’s attempt to dismiss a lawsuit brought by former deputy FBI director Andrew McCabe alleging that he was fired in 2018 as an act of political retribution at the behest of President Donald Trump.

U.S. District Court Judge Randy Moss ruled that McCabe is entitled to discovery in his effort to prove that his removal by then-Attorney General Jeff Sessions was prompted by Trump’s repeated and public desire to damage him, meaning the administration’s private discussions could enter the public record.

McCabe, a central figure in the investigation of the 2016 Trump campaign’s contacts with Russians, was ousted just hours before he was set to retire — the president made him a frequent target of his Twitter fury and questioned in December 2017 why the longtime bureau veteran was “racing the clock to retire with full benefits.”

What it means: Moss’ 45-page ruling could lead to sworn depositions for key players in the saga and to the Justice Department, FBI and even the White House being forced to turn over all records related to McCabe’s dismissal. The uncomfortable fact-gathering process could air internal Justice Department machinations around the time of McCabe’s removal and shed new light on any political pressure DOJ officials were under from Trump and his aides.

The backstory: DOJ leaders attributed the decision to remove McCabe to Inspector General Michael Horowitz’s determination that McCabe misled him about media leaks when McCabe was being interviewed during a probe of the FBI’s handling of matters connected to Hillary Clinton.

Horowitz found that McCabe “lacked candor” once with former FBI Director James Comey and once with internal investigators reviewing the bureau’s handling of the Clinton probe. Though Trump allies expected McCabe to face charges over the matter, DOJ ultimately dropped the issue.

Though DOJ argued in seeking the dismissal of the lawsuit that McCabe’s removal was purely the result of his conduct during the Clinton matter, Moss said McCabe must be allowed to show whether that was merely a pretext.

”Without providing some opportunity for discovery….the Court cannot foreclose the possibility that Attorney General Sessions felt overwhelming pressure from President Trump to take punitive action against Plaintiff (based on the President’s belief regarding Plaintiff’s political affiliation and personal loyalty) and that, to avoid angering or disappointing the President, he fired Plaintiff late on a Friday night before Plaintiff could voluntarily retire and receive all of his accrued benefits,” Moss wrote.

The Justice Department argued “that no reasonable jury could find that they were motivated by [McCabe’s] perceived political affiliation or pressure from the President,” the judge relayed. “Defendants do so before answering the Complaint and before Plaintiff has had any opportunity for discovery. That approach is contrary to settled law.”

Trump regularly attacked McCabe in 2016 and after taking office over his wife’s failed Virginia state Senate campaign as a Democrat. Trump alleged that donations she received from top Democratic Party figures like longtime Clinton ally Terry McAuliffe proved the FBI was acting with anti-Trump bias. McCabe has indicated that Trump directly questioned him about his and his wife’s political beliefs during meetings after Trump took office.

Moss also rejected DOJ’s claim that the attorney general can’t be liable for being influenced by Trump, even if Trump’s motives were improper, since Cabinet officers are acting under an oath to the Constitution.

“But that argument ignores the fact that all federal officials take an oath to uphold the Constitution and that no one is entitled to an irrebuttable presumption of virtue under the law,” argued Moss, an appointee of President Barack Obama. “Defendants might ultimately show that the attorney general was not swayed by the president’s tweets and comments, but plaintiff is entitled to test his claim of improper influence through discovery and the usual rules of civil litigation.”

Moss’ opinion quotes at least half a dozen tweets from Trump railing against McCabe, marking just the latest occasion when the president’s freewheeling use of his favorite social media platform has wound up complicating the administration’s legal position in court.

What’s next: Rulings like the one Moss issued Thursday can’t typically be appealed without special permission from the court. However, the two sides in the case are expected to battle on over just who will have to give testimony in the next phase of the suit, as well as what sorts of documents McCabe’s legal team will be permitted to review.

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