Justice Department Inspector General Michael E. Horowitz accused McCabe in April of misleading investigators and Comey four times — three of them under oath — about authorizing a disclosure to the media. Horowitz referred the findings to the D.C. U.S. Attorney’s Office to determine whether criminal charges are warranted.
Lying to federal investigators can carry a five-year prison sentence, though McCabe disputes that he intentionally misled anyone. Comey’s interview, while significant, does not indicate prosecutors have reached any conclusions, and people familiar with the process said it is not surprising given the allegations McCabe faces. A referral from the inspector general does not guarantee charges will be filed.
Michael R. Bromwich, McCabe’s lawyer, said in a statement: “A little more than a month ago, we confirmed that we had been advised that a criminal referral to the U.S. Attorney’s Office had been made regarding Mr. McCabe. We said at that time that we were confident that, unless there is inappropriate pressure from high levels of the Administration, the U.S. Attorney’s Office would conclude that it should decline to prosecute. Our view has not changed.”
He added that “leaks concerning specific investigative steps the US Attorney’s Office has allegedly taken are extremely disturbing.”
A Justice Department spokeswoman and a lawyer for Comey declined to comment.
Even before the allegations against him, McCabe had become a lightning rod in the political battles over the FBI and special counsel Robert S. Mueller III’s probe of Russian interference in the 2016 election. President Trump has frequently attacked the FBI’s former No. 2 official, largely over political donations his wife took from an ally of Hillary Clinton when she ran for a seat in the Virginia legislature. McCabe was fired in March.
The U.S. attorney’s investigation into McCabe is likely to intensify partisan squabbling, pitting respected law enforcement leaders against one another and potentially giving Trump ammunition to attack.
McCabe and Comey are at odds over the inspector general’s findings. McCabe asserts that Comey knew he authorized the media disclosure, and Comey claims otherwise. Comey has said he “could well be a witness” against McCabe if McCabe were ever charged and tried.
McCabe also is somewhat at odds with Justice Department leaders.
He oversaw an investigation, which now seems to have concluded, into whether Attorney General Jeff Sessions lied to Congress about his contacts with Russians. He also kept notes detailing an interaction with Sessions’s top deputy, Rod J. Rosenstein, that raise questions about a memo Rosenstein wrote justifying Comey’s firing.
Rosenstein’s memo took aim at Comey for his handling of the investigation into Clinton’s use of a private email server while secretary of state. McCabe’s notes, though, suggest Trump told Rosenstein before he authored the memo to mention Russia — though it was unclear in what respect, according to a person familiar with the matter.
The contents of the memo, which ultimately did not mention Russia, were first reported by the New York Times on Wednesday night. Bromwich suggested in his statement that the Times report might have motivated a disclosure of Comey’s interview.
“We think it is no coincidence that these leaks follow within 24 hours of media stories — based on other leaks whose source is unknown to us — about memos written by Mr. McCabe that suggest potential criminal conduct by the President,” Bromwich said. “We will be demanding a leaks investigation.”
McCabe’s interactions with Rosenstein could complicate any potential prosecution of McCabe because Rosenstein would likely be involved in a final decision on filing charges. McCabe has argued that the Justice Department’s actions against him, including his firing, are retaliatory for his work on the Russia investigation.
Mueller is investigating Comey’s firing as part of his examination into whether Trump obstructed justice, and Rosenstein is supervising Mueller’s probe. The president has said publicly that the Russia case was on his mind when he fired Comey, though he tweeted Thursday that he “never fired James Comey because of Russia!”
Sessions fired McCabe from the bureau just 26 hours before he could retire, based on the inspector general’s findings and a recommendation from the FBI’s Office of Professional Responsibility.
The next morning, Trump took to Twitter to celebrate the move.
“Andrew McCabe FIRED, a great day for the hard working men and women of the FBI - A great day for Democracy,” he wrote. “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!”
By the inspector general’s telling, in seeking to advance his own interests, McCabe authorized two FBI officials to talk to the Wall Street Journal about a story he believed would cast him as standing in the way of a probe of Hillary Clinton’s foundation. Then, according to the inspector general, McCabe misled Comey and FBI and inspector general investigators about having done so.
The October 2016 story offered a detailed look at debates inside the Justice Department and FBI over two Clinton-related probes — the examination of her private email server and the separate case involving the foundation. It notably confirmed the existence of the foundation investigation and described an episode in which McCabe pushed back against a Justice Department official whom he perceived to be suggesting the FBI shut it down.
Comey and McCabe offered varying accounts of who authorized the disclosure for the article. They discussed the story the day after it was published, and Comey, according to the inspector general’s report, told investigators McCabe “definitely did not tell me that he authorized” the disclosure.
“I have a strong impression he conveyed to me ‘it wasn’t me boss.’ And I don’t think that was by saying those words, I think it was most likely by saying ‘I don’t know how this s--- gets in the media or why would people talk about this kind of thing,’ words that I would fairly take as ‘I, Andy, didn’t do it,’ ” Comey said, according to the inspector general.
McCabe has countered that emails between the two “clearly show that Mr. McCabe specifically advised Director Comey that he was working with colleagues at the FBI to correct inaccuracies in the story before it was published, and that they remained in contact through the weekend while the work was taking place.” Those emails, though, were in reference to a different Wall Street Journal story about donations McCabe’s wife had received from a political action committee controlled by Terry McAuliffe, a Clinton ally, McCabe’s lawyer has acknowledged. The inspector general ultimately credited Comey’s account.
Lying to Comey might not itself be a crime. But the inspector general alleged McCabe misled investigators three other times.
He told agents from the FBI inspection division on May 9, 2017, that he had not authorized the disclosure and did not know who had, the inspector general alleged. McCabe similarly told inspector general investigators on July 28 that he was not aware of one of the FBI officials, lawyer Lisa Page, having been authorized to speak to reporters, and because he was not in Washington on the days she did so, he could not say what she was doing. McCabe later admitted he authorized Page to talk to reporters.
The inspector general also alleged that McCabe lied in a final conversation in November, claiming that he had told Comey he had authorized the disclosure and that he had not claimed otherwise to inspection division agents in May.
Bromwich has said previously that McCabe’s statements are “properly understood as the result of misunderstanding, miscommunication, and honest failures of recollection based on the swirl of events around him, statements which he subsequently corrected.” He has also blasted McCabe’s treatment and asserted that the inspector general did not detail “any understandable motive for his alleged wrongdoing.”