Gleichschaltung in the Justice Department

The Trump Administration is trying to destroy the federal government as we have known it since the 1930s: a series of cabinet departments and agencies working for the public welfare according to principles of science and reason.  Washington, to be sure, has lost much of that role over the last few decades.  The SEC is a shadow of its former self, the regulation of the financial industry has been cut way back, and successive Republican administrations have crippled regulation of the energy industry.  Last week's New Yorker article by Evan Osnos shows that the battle has been personal, with the Trump Administration and its allies in right wing media targeting particular individuals and sidelining their careers, in one case based on completely false accusations.  Led by Newt Gingrich, conservative Republicans have been assailing federal bureaucrats for decades, and this administration is their chance to make nearly all their dreams come true.  That is what is happening in the Education and Interior Departments and at the EPA.  Congress, which is about to repeal much of the very moderate Dodd-Frank bill, has joined in the fun.

Trump's most personal battle with the bureaucracy, of course, relates to the Mueller investigation into the role of Russia in the 2016 election and many other related matters.  He admitted to firing James Comey to protect himself from that investigation and he has railed against Jeff Sessions (who had contacts with the Russians himself) for recusing himself from it and leaving his deputy, Rod Rosenstein, in charge of special counsel Robert Mueller.  Continually misrepresenting facts, the President and his allies in the House of Representatives are now arguing that a Democratic conspiracy within the Justice Department and FBI both exonerated Hillary Clinton and the Clinton Foundation of wrongdoing in two separate investigations, and used planted evidence (the Steele dossier) and an as-yet-unnamed informant to start an investigation of his own campaign.  Devin Nunes, in particular--the chair of the House Intelligence Committee--appears to have been laying the groundwork for firing Mueller for some time.  But the President has not yet acted.

Many of us have tended to assume, based on Rosenstein's conduct to date and Trump's rants against his Attorney General, that the DOJ leadership was in fact protecting Mueller and the FBI against the White House.  Yet I am now convinced that that is only half true, and that countervailing forces are at work within Justice.  The reason is that I have now studied the FBI Inspector General's report on Andrew McCabe, the FBI Deputy Director who was fired in March.  We don't know much about how the investigation of McCabe began, but the report makes clear that McCabe was fired (in an attempt to deprive him of his pension after about 24 years of service) mainly for standing up to a misleading, pro-Trump story in the press at the height of the 2016 election campaign.

That story appeared on October 23--two weeks before the election--in Rupert Murdoch's Wall Street Journal, which was supporting Trump.  Written by reporter Devlin Barrett, it was based on one fact.  In 2015, Andrew McCabe's wife, Dr. Jill McCabe, had waged an unsuccessful campaign for the Virginia state legislature, and had received almost half a million dollars in contributions from a Political Action Committee directed by Virginia Governor Terry McAuliffe, who was attempting to win a Democratic majority in the legislature.  There was nothing unusual or illegal about that, but Barrett then added that McAuliffe had long been close to the Clintons, and that Andrew McCabe--Jill's husband--"later helped oversee the investigation into Mrs. Clinton's email use."  In fact McCabe, who had then been the director of the Washington Field Office, had subsequently become Associate Deputy Director, and then Deputy Director, of the FBI--the latter the second-ranking position in the bureau behind James Comey.  But Barrett presented no evidence that he actually directed the Clinton investigation--which Comey had officially closed several months earlier--and the story even confirmed that Comey himself had made all the major decisions about it.   Still, the story had the clear purpose of suggesting that McCabe had gone easy on Clinton because a long-time Clinton ally had given money to his wife's campaign.  Then-candidate and now-President Trump has repeated the accusation many times every since, right up until this very week.

The story clearly impugned the integrity of the FBI in general and McCabe in particular.  Yet this turned out only to be a first salvo. The next day, Barrett told the FBI's director of the Office of Public Affairs (who is referred to throughout the IG report as the AD/OPA) that he was writing a followup story about another investigation dealing with the Clinton foundation and whether it had solicited money illegally while Hillary Clinton was Secretary of State.  Barrett said he had learned that McCabe had warned agents "not to make a lot of overt moves" in that investigation during the campaign.  This accusation, as it happened, was essentially the opposite of the truth.  More than two months earlier, on August  12, McCabe had received a call from an unidentified Principle Associate Deputy Attorney General (referred to in the report as PADAG), expressing concerns that the FBI might take "overt steps" in the Clinton Foundation investigation during the campaign.   The conversation became heated and McCabe asked if the PADAG was asking him to shut down "a validly predicated investigation." The PADAG said no.  Both parties confirmed the substance of this conversation.  McCabe decided to authorize the assistant director for public affairs and another offical referred to as the Special Counsel to talk to Barrett to give him the true story of that call, after first contacting him to find out what he already had.  \They did.

Barrett's story appeared on line on October 30 and headlined page 1 of the WSJ on October 31, leading with matters relating to the new investigation of Anthony Weiner's computer and the re-opening of the email investigation, but going on to discuss the controversy over the investigation of the Clinton Foundation.  But as the IG report explains, it then moved on to the Clinton Foundation investigation.

        "The article identified McCabe as the FBI official who “sought to refocus the Clinton Foundation probe,” and reported that agents 'further down the FBI chain of command' had been told to “stand down” on the Clinton Foundation investigation with the understanding that 'the order had come from the deputy director — Mr. McCabe.' The article stated that '[o]thers familiar with the matter deny Mr. McCabe or any other senior FBI official gave such a stand-down instruction.' The article recounted the August 12 conversation between McCabe and PADAG (identified as an unnamed 'senior Justice Department Official'). It stated:

          According to a person familiar with the probes, on Aug. 12, a senior Justice Department official called Mr. McCabe to voice his displeasure at finding that New York FBI agents were still openly pursuing the Clinton Foundation probe during the election season. Mr. McCabe said agents still had the authority to pursue the issue as long as they didn’t use overt methods requiring Justice Department approvals. The Justice Department official was “very pissed off,” according to one person close to McCabe, and pressed him to explain why the FBI was still chasing a matter the department considered dormant. . . .  “Are you telling me that I need to shut down a validly predicated investigation?” Mr. McCabe asked, according to people familiar with the conversation. After a pause, the official replied “Of course not,” these people said.

           [end quote from IG report]

Now the purpose of the IG Report was not to find out the truth about who, if anyone, had tried to obstruct the investigation of the Clinton Foundation, and whether they had succeeded in doing so--however important those questions might be.  It is clear that revelations and serious accusations about that investigation were going to appear in the story whether McCabe authorized the contact with Barrett or not, and that that contact merely served to introduce some balance into the story as it appeared one week before the election.  The question the IG report addressed, was whether McCabe had done anything wrong.

As to that, the whole IG report tends to confirm, in spades, the immortal words of Richard Nixon: "What really hurts is when you try to cover it up."  The report accuses McCabe of "lack of candor" in a number of conversations with FBI officials about the disclosure of the August 12 conversation to Barrett, beginning with a conversation he had with his boss, James Comey, on October 30.  Unfortunately there was no contemporary record of that conversation and the two men had different recollections.  McCabe claimed that he told Comey--who earlier in the day had complained about all the leaks in the piece at a staff meeting--that he had authorized the disclosure of the August 12 conversation, and that Comey had not especially reacted to this.  Comey on the other hand said that while he did not remember McCabe explicitly denying that he had authorized that disclosure, he gave him the impression that he had not done so.  And oddly, while Comey discusses President Trump's accusations about Jill McCabe and McAuliffe's contributions in his memoirs, they say nothing at all about this controversy or about the investigation of the Clinton Foundation.

It was in May 2017 that FBI officials began investigating McCabe's role in the disclosures in the October 30 WSJ piece.  The report does not mention this, but various officials in the bureau, the Justice Department and the White House seem to have been working at cross purposes at that time.  It was on May 9 that FBI officials interviewed McCabe about this matter for the first time.  That, remarkably, was the same day that President Trump fired James Comey.  The IG report says that the McCabe matter was added to an ongoing investigation of leaks, and does not tell us, of course, if this step was part of an orchestrated purge that began with Comey's firing.  What is rather amazing is that on that same day, McCabe became the Acting Director of the FBI and remained so until September.

McCabe did deny in that meeting, and in several ones subsequently, that he had authorized the disclosure of the content of his August 12 conversation.  He did not, however, sign and return a sworn statement that was drafted after that meeting.  In July he was asked about the issue again said that he "may have" authorized the special counsel to talk to Barrett, and in August he confirmed that he had authorized the leak.  While McCabe hadn't launched a sustained cover-up, he had told a falsehood to investigators on at least one occasion.  But had he been covering up wrongdoing on his part?

As the IG report acknowledges, McCabe, as Deputy Director, was one of the bureau officials authorized to make disclosures to the press, and the assistant director for public affairs, who helped handle the contact with Barrett, was another.  Such disclosures had to be deemed in the best interests of the Bureau.  The IG found McCabe guilty of a serious offense, leading to his firing and possible criminal charges, because they argued that he was only protecting himself and not the Bureau.  In my opinion that argument is absurd.  The accusation that bureau agents had been told to stand down in their investigation of the Clinton Foundation and the implication that they had done so impugned the integrity of the bureau and leading officials had every reason to be concerned about that.

When an incident has serious consequences for one of the parties, it behooves us to ask who really made it happen.  George Zimmerman, in my opinion, should have been convicted of taking Trayvon Martin's life because there is no doubt whatever that he, for no good reason, started the confrontation between him that ended when he shot and killed him.  In the cases of police shootings of unarmed men, some of the encounters were started for no good reason by the police while others began with serious offenses by the eventual victim.  In this case, in which a career and a pension, not a life, are now at stake, what started the ball rolling was Devlin Barrett's stories implying that McCabe had somehow been bought by the Clintons, and arguing that the Justice Department and the Bureau had stopped the investigation of the Clinton foundation.  The only thing McCabe really did was to try to refute the latter allegation which, based on undisputed facts, was false, at least as Barrett reported it.  We don't know how Barrett and his editors were convinced that the contribution to McCabe's wife was newsworthy, or who told him the foundation investigation had been muzzled.

Rod Rosenstein may have protected Robert Mueller so far and may intend to continue doing so.  But others within the FBI and the Justice Department--as well as the Republicans in Congress--have evidently accepted the Trump White House's view of reality and have tried to enforce it on McCabe.  Others may follow.  In the year or so after taking power in January 1933, the Nazis achieved the Gleichschaltung--that is, the coordination, or bringing into line--of the key bureaucracies of the German state. They did so by installing new leadership, firing some dissident bureaucrats, installing some Nazis in key positions, and intimidating the rest of the holdovers.  This is happening, as Osnos shows, at State, Interior, the EPA and elsewhere, and the McCabe matter tells me that there is an attempt to make it happen in Justice, perhaps the most important department of all. Stay tuned.