The Justice Department’s continued delays in making a decision about whether or not it will charge fired FBI Deputy Director Andrew McCabe with any crimes related to allegations that he misled investigators frustrated the federal judge overseeing a freedom of information lawsuit.
“I don’t care what y’all do with McCabe,” Judge Reggie Walton said from the bench in the District Court for the District of Columbia on Thursday afternoon. “But this is not a hard case!”
“Deciding whether you’re going to charge someone with false statements is not a hard case … not factually, not legally, but maybe politically,” he said.
Walton’s comments on McCabe came during a hearing related to a Freedom of Information Act lawsuit brought by Citizens for Responsibility and Ethics in Washington, a left-leaning watchdog group that has been fighting in court for access to the underlying DOJ and FBI documents connected to McCabe’s firing since July 2018.
A 2018 report by DOJ Inspector General Michael Horowitz found the top FBI official “lacked candor” with FBI Director James Comey, FBI investigators, and DOJ watchdog investigators about his authorization to leak to the media the existence of an FBI investigation into the Clinton Foundation, for which McCabe was fired. McCabe is suing the DOJ for wrongful termination, seeking his job and back pay, claiming President Trump was behind the firing.
The U.S. Attorney’s Office in D.C. is weighing criminal charges against McCabe stemming from Horowitz’s report, and his appeal in September to avoid criminal charges was denied by the DOJ, with federal prosecutors recommending charges. But it does not appear a grand jury has returned an indictment yet.
After months of citing an exemption to the FOIA that allows the government to withhold “records or information compiled for law enforcement purposes” to delay releasing the documents, the DOJ dropped that exemption on Wednesday, leading to speculation something had happened with the DOJ’s possible prosecution of McCabe.
“We think that raises the question about why they are clinging to the notion of a possible criminal investigation,” said Anne Weismann, the nonprofit group’s lawyer.
Walton wondered if the possibility of prosecution had been used to stall releasing information related to McCabe’s firing, noting he had stayed the proceedings multiple times because of the exemption.
“I don’t know what’s going on behind closed doors with McCabe’s possible prosecution, but I assume something must have happened that changed,” Walton said. “I guess I wonder, well, why?”
“Should I know, well, whether the wool was being pulled over my eyes?” Walton asked.
DOJ attorney Justin Sandberg seemed taken aback by Walton’s skepticism and by the judge’s repeated questioning of the DOJ’s reasoning.
“Your Honor, you’re not being manipulated,” Sandberg said.
But the judge wasn’t satisfied with the DOJ’s answers and offered to meet in his chambers.
Even behind closed doors, Sandberg said, “I’m not sure sure that you will get the satisfaction that you want because I’m not sure the answer will come from where you think.”
Walton met with DOJ attorneys for 10 minutes behind closed doors.
“I have heard from the government — for what it’s worth,” he said, then he ordered the DOJ inspector general’s office to speed up its proposed production of documents in response to CREW’s lawsuit. Instead of releasing 100 pages of McCabe records per month through December 2020, Walton told the DOJ to hand over 200 pages per month.
That will make the information available “well before the next election occurs,” he said.
Both McCabe’s legal team and the DOJ declined the Washington Examiner‘s request for comment.
McCabe’s lawyers have also expressed frustration with the DOJ’s delays, denying McCabe did anything wrong and claiming that “this investigation has been fatally flawed from its inception.” McCabe has said he would “absolutely not” accept any plea deal.
McCabe is separately being looked at by Horowitz in part for his role in helping approve FISA applications, which made use of British ex-spy Christopher Steele’s salacious and unverified dossier to target Trump associate Carter Page. McCabe is also likely being scrutinized by U.S. Attorney John Durham in his investigation into the origins of the Trump-Russia investigation.
