The extraordinary warning by Walton — a 2001 President George W. Bush appointee and former presiding judge of the secret Foreign Intelligence Surveillance Court — marked the latest turbulence in an investigation that McCabe’s defenders say is a move by the Trump administration to punish the president’s perceived political enemies.
At a brief hearing in an open records lawsuit, Walton confirmed McCabe has not been indicted and that the department still is weighing charges.
McCabe, who became acting FBI director in 2017 after President Trump fired James B. Comey, authorized the bureau to begin investigating Trump’s ties to Russia, and has since become a lightning rod for the political battles surrounding the FBI and the Justice Department. Trump has frequently criticized McCabe while prosecutors have sought to determine whether he should be charged for lying to federal investigators about authorizing other FBI officials in 2016 to talk to a reporter about tensions inside the FBI and Justice Department over the investigation of Hillary Clinton’s use of a private email server and a separate review of the Clinton family foundation.
Walton spoke after Justice attorneys argued in private before him for the latest postponement in a Freedom of Information Act lawsuit over documents about the FBI’s investigation of McCabe, which the government has declined to release citing potential interference with a law enforcement proceeding.
The case against McCabe grew out of an investigation by the FBI’s inspection division, and the records might reveal the details of that inquiry. McCabe’s legal team has asserted, for example, that two inspection division agents disagreed about the appropriateness of asking certain questions in one conversation with McCabe.
“I would send this message to those in positions of authority in the U.S. Attorney’s office and the Justice Department . . . that I will not condone further delay,” Walton said, according to a transcript of the unsealed portion of the hearing.
Walton expressed “dismay” to Justice lawyers that the case “is just dragging too long,” adding: “You all have got to cut and make your decision. It’s not a hard decision, and I think it needs to be made. If it’s not made, I’m going to start ordering the release of information because I think our society, our public does have a right to know what’s going on.”
The legal watchdog group Citizens for Responsibility and Ethics in Washington, or CREW, sued in July 2018 to enforce its FOIA request for all government records related to the FBI’s investigation into McCabe, a request CREW filed shortly after McCabe was fired on March 16, 2018.
An inspector general report made public that April found McCabe had lied four times, three of them under oath to federal investigators, allegedly misleading them about the unauthorized disclosure of sensitive information to a reporter about an investigation into Clinton, Trump’s 2016 Democratic opponent.
The inspector general’s office referred its findings about McCabe’s alleged false statements to the U.S. attorney’s office in the District for prosecution. McCabe disputes the allegation, and his legal team said Trump’s attacks against McCabe have “irrevocably tainted” the investigation and made a fair prosecution impossible.
McCabe was acting FBI director from May to August 2017. In a separate lawsuit, McCabe alleges the department fired him as part of a purge of individuals not politically loyal to Trump.
At Monday’s hearing in Washington, Anne L. Weismann, chief FOIA counsel for CREW, said McCabe’s lawsuit “reveals exactly what we had feared,” by alleging the inspector general kept exculpatory evidence from the FBI out of its report. She also cited reports that although Deputy Attorney General Jeffrey Rosen has decided to charge McCabe, a grand jury recalled last month to indict him left with no sign of an indictment being returned.
Weismann, a Justice Department attorney from 1981 to 2002 and former supervisor of government records litigation, argued against allowing further delays based on what she said looks like some “mad effort to find some way to indict Mr. McCabe to appease the president,” adding, “it’s more critical than ever that the public have information. We need to be able to restore our faith in the law enforcement community, in the FBI.”
Weismann appeared to strike a chord with Walton by saying: “We’re in dark times where there’s growing evidence that the president aided by the attorney general is using the power of his office to go after perceived political enemies. He’s going after the intelligence community. He’s going after the law enforcement community . . . ”
“Going after the courts, too,” Walton interjected.
“And he [Trump] is going after the courts, the press,” Weismann continued.
“I totally appreciate what you just said and share many of the same concerns,” responded Walton, a former senior official in the D.C. U.S. attorney’s office and defense attorney.
Walton, however, said he had no choice but to agree to one more extension to Nov. 15 — shorter than the government requested. Walton gave no explanation but spoke after the hearing in a sealed session from Justice Department attorneys Justin Sandberg with the civil division, Madeleine Hensler from the Office of the Inspector General, and J.P. Cooney, chief of the fraud and public corruption unit of the U.S. attorney’s office for the District, which is overseeing the McCabe investigation.
Walton said: “This matter is a high-profile matter. And I think it does, while the matter hangs in limbo, it does undermine the credibility, not only of the Justice Department because it’s not making these hard decisions, but also the court, because Congress enacted this [open records] legislation for the purpose of the American public being made aware of what its government is doing.”
“So the government will have to make a call,” he concluded. “If it doesn’t, I’m going to start ordering the release of information on the next occasion.”