A federal judge excoriated Justice Department officials Thursday for their handling of potential criminal charges against former Deputy FBI Director Andrew McCabe, saying the continued uncertainty over the prosecution was unfair to McCabe and the public.
“This is not a hard case,” U.S. District Court Judge Reggie Walton said. “I was a good prosecutor for a long time. Deciding whether or not you’re going to charge someone with false statements or perjury is not that hard, factually or legally — maybe politically, but not factually or legally.”
Walton, a George W. Bush appointee overseeing a Freedom of Information Act lawsuit filed by a watchdog group to obtain records about McCabe’s firing, complained at a hearing Thursday afternoon that the Justice Department claims about an ongoing potential prosecution of McCabe may have been a “smoke screen” to persuade the judge to forestall the case demanding documents.
“Shouldn’t I know whether the wool was being pulled over my eyes?” Walton said. “I do have concerns about whether I was being manipulated into stopping this case from moving forward.”
“Your Honor, the wool was not being pulled over your eyes,” Justice Department attorney Justin Sandberg said. He insisted claims lawyers made in a secret court filing and closed-door audience with the judge in September were accurate.
For about a year, the Justice Department has maintained that most of the records sought in the FOIA case were off-limits because of an ongoing enforcement action, widely believed to be the government’s investigation aimed at deciding whether to bring charges against McCabe for allegedly lying to FBI colleagues about contacts with the media prior to the 2016 presidential election.
After more than 20 years at the FBI, McCabe was fired last year following findings by the Justice Department inspector general and the FBI’s Office of Professional Responsibility that he displayed a “lack of candor” in his dealings with internal investigators and a top Justice Department official.
A criminal investigation followed along with reports that McCabe was on the verge of indictment two months ago, but no indictment ever emerged. Requests from McCabe’s attorneys for clarity have been ignored by prosecutors.
McCabe’s lawyers say the criminal inquiry and his firing were both tainted by a campaign of public invective from President Donald Trump, who has repeatedly denounced McCabe on Twitter, calling him a “major sleazebag” and celebrating his firing as “a great day for the FBI.”
On Wednesday, government lawyers reversed course in the FOIA suit and said they would no longer argue that records about the investigation into McCabe needed to be withheld because of a pending enforcement proceeding.
However, they remained circumspect about McCabe, further adding to the mystery about his status. That vagueness clearly fueled the judge’s concern that he might have been tricked into delaying the FOIA case with a spurious claim that charges against the former FBI official were still being mulled.
When Walton pressed about what has changed since, Sandberg was exceedingly vague.
“Obviously, you know that time has passed. There’s various proceedings the government has to consider and various interests the government has to consider,” the Justice Department attorney said.
Walton said something must have precipitated the shift.
“I don’t know what’s going on behind closed doors as far as the … potential prosecution of Mr. McCabe is concerned. … Something must’ve happened,” the judge said.
Soon after that exchange Thursday, Walton ordered Sandberg and J.P. Cooney, a prosecutor from the U.S. Attorney’s Office, to join a closed-door court session to explore the grounds for the change. Walton ordered the “ex parte” exchange even though the answers the judge would get from it would likely be unsatisfying, apparently because the Justice Department does not believe it is obligated to explain its decision-making to the judge.
During the earlier, public portion of the hearing, a lawyer for the group pursuing the FOIA suit said the reversal merits some explication from the Justice Department.
“We believe we are, at a minimum, entitled to an explanation for why now, abruptly, the government has withdrawn its … claim,” said Anne Weismann of Citizens for Responsibility and Ethics in Washington.
Weismann noted McCabe has filed a civil suit over his firing and is arguing that the Justice Department violated procedure in a dismissal that seems to have been aimed at terminating him just before he would have been eligible for retirement benefits.
One FBI policy calls for 30-day notice before being fired, but states that can be reduced to seven days in cases involving evidence of a crime.
Weismann said the Justice Department may be posturing about prosecuting McCabe to improve its legal standing in the lawsuit he filed. “If there’s no crime, the government faces a vulnerability in its decision to give Mr. McCabe only secen days and not 30 days,” she said.
However, Sandberg complained CREW was trying to use the FOIA case to manage the Justice Department’s process for seeking criminal charges.
“FOIA does not permit the plaintiff to sort of superintend criminal proceedings,” the DOJ lawyer said.
Sandberg also said it would be “perverse” for the government to suffer any consequences for its reversal, which he said would allow more information to flow to the public.
After the closed-door session Thursday, Walton did not indicate publicly what had transpired, but ordered DOJ to start releasing the documents demanded in the case. He also indicated that he planned to unseal a declaration the Justice Department filed in March explaining the ongoing enforcement proceedings that justified withholding the records CREW requested.
In an interview earlier Thursday, McCabe said he’d still gotten no definitive word about the state of the criminal probe he faced, and he added that he wasn’t sure what to make of the government’s course change in the FOIA case.
“There’s certainly different ways you can interpret it,” McCabe told CNN’s John Berman. “I am still waiting to be told directly by the Justice Department that they have abandoned this completely baseless effort to try to charge me. I, of course, have not done anything wrong and … I’ll be happy to get that call if and when it comes.”
Article originally published on POLITICO Magazine