Former FBI Deputy Director Andrew McCabe won back his full pension as part of a settlement with the Justice Department in a wrongful termination lawsuit filed in 2019 after he was fired by the Trump administration. Andrew McCabe. (Graeme Jennings/Washington Examiner)

Former FBI official Andrew McCabe wins full pension in wrongful termination lawsuit settlement

Jerry Dunleavy October 14, 09:06 PM October 14, 09:10 PM

Former FBI Deputy Director Andrew McCabe won back his full pension as part of a settlement with the Justice Department in a wrongful termination lawsuit filed in 2019 after he was fired by the Trump administration.

The agreement, completed on Thursday, allows the key Crossfire Hurricane figure to officially retire and receive hundreds of thousands of dollars in missed pension payments and attorney’s fees.

McCabe was fired in March 2018 by then-Attorney General Jeff Sessions after DOJ Inspector General Michael Horowitz determined he repeatedly “lacked candor” with investigators during a criminal leaks investigation. McCabe denied any wrongdoing. The Trump-era Justice Department decided in early 2020 not to prosecute McCabe over his alleged dishonesty.

The settlement was signed by McCabe, his lawyer Murad Hussain of Arnold & Porter, and DOJ senior trial counsel Justin Sandberg.

The 11-page agreement noted that it “is neither an admission of liability by Defendants nor a concession by Plaintiff that his claims are not well-founded” and claimed that it was signed because “the Parties wish to resolve this dispute amicably, without the costs and burdens that would result from further litigation.”

The agreement said they agreed to the “recession” of McCabe’s firing and that the FBI’s records would be amended to say he was employed continuously from July 1996 until a retirement in March 2018 as FBI deputy director and a member of the Senior Executive Service.

The Justice Department agreed to provide McCabe “a payment of a lump sum representing all retirement annuity payments, including annuity supplement payments, that he would otherwise have received from the April 1, 2018 annuity commencement date until the day before he is paid his first regular monthly payment,” or roughly $200,000.

The DOJ also agreed to pay $539,000 to McCabe “in full settlement and satisfaction of all attorney’s fees, costs, and expenses” — a payment to be sent directly to Arnold & Porter, the firm that had defended McCabe.

The Justice Department also agreed to provide McCabe with a mounted version of his FBI badge and Senior Executive Service cufflinks.

McCabe agreed that he “fully and forever releases and discharges Defendants (and their components, agents, officers and former officers, and employees and former employees, either in their official or individual capacities) from any and all claims, demands, and causes of action” that McCabe might have had or might ever have related to his removal from the FBI.

“Politics should never play a role in the fair administration of justice and civil service personnel decisions,” McCabe said in statement. “I am deeply grateful for Arnold & Porter’s dedication to my case, and I hope that this result encourages the men and women of the FBI to continue to protect the American people by standing up for the truth and doing their jobs without fear of political retaliation.”

Arnold & Porter partner Murad Hussain said: “For 140 years, civil servants like Andrew McCabe have been the federal government’s backbone, pledging their loyalty to the Constitution rather than to any politician or political party. This settlement and the district court’s rulings make clear that attempts to corrupt the federal workforce through partisan intimidation and improper political influence will not go unanswered.”

The Justice Department declined to comment.

Horowitz released a report in 2018 detailing multiple instances in which McCabe “lacked candor” with FBI Director James Comey, FBI investigators, and inspector general investigators about his authorization to leak sensitive information to the Wall Street Journal that revealed the existence of an FBI investigation into the Clinton Foundation. Horowitz’s report concluded that “the evidence is substantial” that McCabe misled investigators “knowingly and intentionally.” Sessions fired McCabe in March 2018, just before he was set to retire.

Comey said he did not authorize McCabe to tell the media, and Horowitz wrote that McCabe’s actions were “designed to advance his personal interests at the expense of Department leadership” and “violated the FBI’s and the Department’s media policy and constituted misconduct” in “an attempt to make himself look good.”

McCabe accused former President Donald Trump of causing his subordinates at the DOJ to participate in an “unconstitutional plan and scheme” to have him fired in an August 2019 lawsuit. McCabe said that his removal by Sessions was part of a broader plan by Trump to “discredit and remove DOJ and FBI employees who were deemed to be his partisan opponents because they were not politically loyal to him” in the suit against the DOJ, Attorney General William Barr, and FBI Director Christopher Wray. McCabe asked the judge to compel the DOJ to provide him with back pay, his full pension, and to expunge his record.

The Justice Department defended its 2018 firing of McCabe and sought to dismiss his lawsuit in November 2019.

“In the FBI, a lofty position does not lessen the need to abide by the ideals memorialized in its motto [“Fidelity, Loyalty, Bravery”]. To the contrary, the Deputy Director must lead first by example,” the Justice Department said of McCabe. The DOJ emphasized that “after a lengthy investigation, the Department’s Inspector General found, as detailed in a 34½-page report, that Plaintiff had repeatedly lacked candor under oath and not under oath in interviews with its investigators and with agents from the FBI’s Inspection Division.”

Former Deputy Attorney General Rod Rosenstein said in June 2020 that McCabe, briefly the temporary head of the FBI after Comey was fired, was “not fully candid” with him about the memos written by Comey about his conversations with Trump. These were the so-called “Comey Memos.”

McCabe testified last November that he was “shocked and disappointed” by the “errors and mistakes” in the FBI’s Foreign Intelligence Surveillance Act applications seeking the authority to wiretap onetime Trump campaign associate Carter Page. McCabe admitted he“signed a package that included numerous factual errors or failed to include information that should’ve been brought to the court.” McCabe signed off on the fourth and final FISA warrant targeting Page, but testified that he wouldn’t have done so if he knew then what he knows now about the flaws with the bureau’s FISA applications.

McCabe and Comey pushed to include allegations from British ex-spy Christopher Steele’s dossier in the 2017 intelligence community assessment, according to a report from Horowitz on the Russia investigation. The dossier was summarized in a classified appendix to the Russia interference assessment.

Robert Mueller’s 2019 special counsel report said Russians interfered in the 2016 election in a “sweeping and systematic fashion” but “did not establish” any criminal conspiracy between any Russians and anyone in Trump’s orbit.

Horowitz’s lengthy December 2019 report criticized the Justice Department and the FBI for at least 17 “significant errors and omissions” related to the FISA warrants against Page, who was never charged with a crime and has denied any wrongdoing, and for the bureau’s reliance on Steele’s Democratic-funded and discredited dossier. Horowitz said Steele’s main source “contradicted the allegations of a ‘well-developed conspiracy’ in” the dossier.

Declassified footnotes now show the FBI was aware that Steele’s dossier might have been compromised by Russian disinformation.

In court filings, McCabe accused Sessions, along with Wray and others, of serving as Trump’s “personal enforcers” rather than “the nation’s highest law enforcement officials” and of catering to Trump’s “unlawful whims” instead of “honoring their oaths to uphold the Constitution.”

“Andrew McCabe FIRED, a great day for the hard working men and women of the FBI — A great day for Democracy,” Trump tweeted just after midnight after McCabe’s 2018 firing. “Sanctimonious James Comey was his boss and made McCabe look like a choirboy. He knew all about the lies and corruption going on at the highest levels of the FBI!”

The Trump DOJ reminded the court that FBI Assistant Director Candice Will and then-Associate Deputy Attorney General Scott Schools both agreed that McCabe lacked candor and should therefore be removed from his position. The Justice Department told the court that “because of its institutional devotion to these principles, if the FBI finds that one of its Special Agents lacked candor under oath, the standard penalty is removal.”

McCabe’s legal team said his story to investigators changed because he was surprised by and unprepared for the question during his May 2017 interview and was preoccupied with other major events. They said once Comey was fired later that day, he didn’t think about his answers again as he dealt with leading the bureau for a time.

Horowitz concluded that McCabe’s account of his May 2017 interview “was wholly unpersuasive” and believed the former FBI leader misled his team too.

“It seems highly implausible that McCabe forgot in May what he recalled in detail during his November inspector general testimony,” Horowitz said. “In our view, the evidence is substantial that it was done knowingly and intentionally.”

Judge Randolph Moss, nominated to the bench in 2014 by then-President Barack Obama, issued lengthy ruling in September 2020 rejecting the Justice Department’s motion to dismiss McCabe’s lawsuit, with the judge arguing that it was too soon to decide whether the government or McCabe was right, and therefore, the case should proceed.

Lawyers for McCabe and the Justice Department filed a joint motion to dismiss McCabe’s lawsuit Thursday evening.

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