Justice Department attorneys struggled with mounting frustration and skepticism from a federal judge about producing documents related to the investigation of former FBI deputy director Andrew McCabe, according to transcripts of closed-door conversations released in response to a lawsuit from a government watchdog group.
The McCabe case—and President Donald Trump’s personal involvement in it—prompted federal judge Reggie Barnett Walton to call the government’s handling of it “disturbing,” a “mess,” and veering close to a “banana republic.”
“I think it’s very unfortunate,” Judge Walton told prosecutors as the case hung in limbo in late September. “And I think as a government and as a society we’re going to pay a price at some point for this.”
The comments were made in a Freedom of Information Act lawsuit filed by Citizens for Responsibility and Ethics in Washington (CREW) against the Justice Department.
Jordan Libowitz, a spokesperson for CREW, said the eventual release of the court transcripts on Friday, after a lengthy court battle, showed that the government was “trying to cover up the fact that they were stringing this [lawsuit] along while looking for a reason to indict McCabe.”
The court released the transcripts on Friday afternoon hours after McCabe’s lawyers released a letter from Justice Department officials saying they did not plan to charge McCabe with a crime. Two years ago, the DOJ’s top watchdog released a report finding that McCabe lacked candor when answering questions about leaks to the media. McCabe vehemently disputed the report’s findings.
The CREW lawsuit sought material on how the Trump administration handled the criminal investigation into McCabe, who served as the acting FBI Director after Trump fired James Comey. In that capacity, McCabe helped oversee Special Counsel Robert Mueller’s Russia probe. He also became one of Trump’s top bête noires. The president has tweeted about him dozens of times, once accusing him of treason. McCabe, in turn, has vociferously pushed back. After Trump insinuated that McCabe deserved the death penalty, McCabe told CNN the comment was “quite honestly terrifying.”
“It’s just a disgusting level of disrespect for the people who serve this country every day,” he said.
Throughout the course of the CREW lawsuit, prosecutors appeared unable to predict when their investigation of McCabe would conclude, which would allow them to hand over documents related to the case through the Freedom of Information Act process.
In mid-September, McCabe’s attorneys wrote in an email to the Justice Department that they’d heard “credible” rumors that a grand jury investigating possible criminal charges against their client “had declined to vote an indictment.” They asked Deputy Attorney General Jeffrey Rosen to drop the case but Rosen declined.
By the end of September, the transcripts released by the CREW lawsuit show the Justice Department had asked the court for another three months to decide whether to continue the McCabe case, calling it “an exceedingly difficult matter and situation.”
That requested delay, as well as others in the months preceding it, created mounting frustration for Judge Walton as the government seemed unable to determine whether the case against McCabe would continue throughout the summer and fall of September 2019.
Walton chided prosecutors in late September, saying that their delays hindered CREW’s right to the documents and “from the standpoint of Mr. McCabe, he has a right to have the government make a decision and not hold his life in limbo pending a decision as to what's going to happen.”
“I don't know why it's so difficult for a decision to be made. Either you have a case or you don’t,” he said.
Judge Walton also took issue with President Trump’s apparent personal involvement in the case. He told prosecutors that Trump’s comments about the case complicated the ability to receive a fair hearing in the FOIA lawsuit.
“[T]he public is listening to what’s going on, and I don’t think people like the fact that you’ve got somebody at the top basically trying to dictate whether somebody should be prosecuted,” Walton told prosecutors when they asked for another delay in late September. “I just think it's a banana republic when we go down that road and we have those type of statements being made that are conceivably—even if not—influencing the ultimate decision. I think there are a lot of people on the outside who perceive that there is undue, inappropriate pressure being brought to bear.”
As recently as December 10, prosecutors pushed back on the release of the transcripts showing Walton’s questions about the timing of prosecutors’ decisions in the McCabe case. They argued it would give the public an incomplete picture of the investigation and potentially compromise the case.
“To understand the Department’s exercise of prosecutorial discretion in this case would necessitate a broader disclosure of internal deliberative information than contained in the staled ex parte hearing transcripts,” J.P. Cooney, a prosecutor in the U.S. Attorney’s office in Washington, D.C., wrote in one filing obtained by the CREW lawsuit. Their release, he claimed, “risks unfairly calling into question the integrity of the investigation and any future decisions in the McCabe matter”.
Libowitz said Friday that it was “not surprising that the announcement of no indictment [of McCabe] was timed along with the release of these transcripts.”
A 2018 investigation by the Justice Department’s Office of Professional Responsibility found McCabe had “made an unauthorized disclosure to the news media and lacked candor—including under oath—on multiple occasions” about the FBI’s handling of the investigation into Hillary Clinton’s private email server and handling of classified information. Former Attorney General Jeff Sessions fired McCabe in March 2018 just hours before his scheduled retirement date.