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If Attorney General Jeff Sessions carries through on an FBI recommendation to fire former bureau Deputy Director Andrew McCabe on the eve of his planned retirement, a massive legal imbroglio seems inevitable.
However, lawyers say McCabe’s legal options are few because most FBI employees have little legal recourse over attempts to punish them over alleged misconduct.
Officials at the FBI have recommended that McCabe be fired, potentially upending his plans to retire on Sunday. The precise allegations against McCabe remain unclear, but he has been accused of a lack of candor during a review by the Justice Department inspector general into decisions made at the FBI in advance of the 2016 election.“I don’t see an obvious path for recourse,” said Katherine Atkinson, a Washington lawyer who represents federal workers. “FBI employees generally do not have those rights.”
McCabe on Thursday took his appeal in person to senior officials in the office of Deputy Attorney General Rod Rosenstein. The former No. 2 official at the FBI was seen arriving for an afternoon meeting at Justice Department headquarters, across the street from the FBI’s Hoover Building.
The decision is expected to end up at Sessions’ desk as soon as Friday, putting the embattled attorney general in an exceedingly awkward spot. Dismissing McCabe would surely please President Donald Trump, who has repeatedly slammed McCabe on Twitter and in person. But the federal government does not normally fire high-ranking career officials with 22 years of service except in the face of extraordinary evidence of serious wrongdoing.
“To look at removing a person, potentially, two days before they retire, the factual basis of this has got to be really, really strong for them to do that,” said Michael Rochford, a former head of the FBI’s counterintelligence section.
Whatever the decision, the FBI is likely to be divided about its legitimacy, bureau veterans said.
“People are going to retreat to their side of: Do we love Trump or hate Trump?” said James Gagliano, a former FBI agent who is now a professor at St. John’s University in New York. “The timing sucks, because it looks like this is set to happen as Trump tweets something and now they’re rushing to get this guy. It just looks awful. The one person I would not want to be now is Sessions.”
“If Andy is guilty of lying,” Gagliano added, “he deserves to be fired, but this thing is not going to look good.”
A prolonged legal battle could exacerbate tensions at the FBI and undermine Director Christopher Wray’s efforts to restore a sense of normalcy after Trump’s high-profile firing of James Comey as director last year and a more recent showdown with the White House over declassification of a memo that House Republicans prepared about alleged surveillance abuses.
If McCabe is fired and wants to challenge that decision, his options are limited. Most federal civil service workers who believe they’re being subjected to excessive punishment can protest to an obscure agency called the Merit System Protection Board and then to court, but for decades Congress has given the FBI and its management more leeway.
“There’s no statutory basis to go to court,” said Tom Devine of the Government Accountability Project.
While the usual civil service avenues are closed to McCabe, a lawsuit in U.S. District Court in Washington is a possibility, lawyers said, but would probably require him to argue that his firing departed from standard practice in a way so egregious that it violated his constitutional rights to due process.
If McCabe does file a lawsuit, he seems certain to argue that his repeated taunting by Trump put Sessions under political pressure to carry out the firing, whether or not it was warranted, lawyers say.
The White House continued to provide fodder for those arguments on Thursday by trashing McCabe even as he showed up at the Justice Department in the afternoon to plead his case.
Asked whether Trump believed McCabe should be fired, White House press secretary Sarah Sanders said: “That’s a determination that we would leave up to Attorney General Sessions.” She quickly added: “But we do think it is well documented that he has had some very troubling behavior and by most accounts a bad actor and should have some cause for concern.”
Those kinds of comments, Trump’s repeated tweets about McCabe and reports that last year the president asked McCabe whom he voted for could fuel claims of a constitutional violation.
“If the White House is putting political pressure on the attorney general to do something about this, that’s an implication of being targeted for political reasons,” said David Colapinto, a lawyer who has represented FBI whistle-blowers. “McCabe could argue it raises an inference of retaliation in violation of the First Amendment right of free speech, right to petition Congress and freedom of association.”
Trump’s comments about McCabe’s wife’s failed Virginia Senate bid and the donations she received “could potentially infringe on McCabe’s right to freedom of association, which would be protected by the First Amendment, depending on McCabe’s career status,” Colapinto added.
Still, such a lawsuit would be far from a sure thing. In recent years, the courts have repeatedly shunted or shut down various lawsuits brought by FBI personnel, claiming they were unfairly punished.
The financial stakes for McCabe could be significant. If he makes it to his 50th birthday on Sunday while still in federal service, he’s eligible to begin drawing a full pension immediately under provisions that apply to federal law enforcement officers, said Kimberly Berry, a lawyer in Arlington, Virginia, who specializes in federal retirement issues.
Berry disputed reports, however, that McCabe would lose his pension altogether if he is fired before Sunday.
“He doesn’t lose his retirement,” she said. “It’s not all thrown out in the garbage.“
Even if McCabe is dismissed, he will probably be eligible to begin collecting his pension at about age 57, although he would likely lose access to federal health coverage and would probably get a smaller pension than if he were to stay on the federal payroll through Sunday, experts said.
One former FBI agent noted that when agent Robert Hanssen pleaded guilty to espionage, his wife was permitted to keep half his pension despite the extraordinary gravity of the crime Hanssen admitted to.
The Justice Department spokeswoman, Sarah Isgur Flores, has declined to comment on McCabe’s case, but insists that officials are following well-established procedures for employee discipline.
“The department follows a prescribed process by which an employee may be terminated,” she said on Wednesday. “That process includes recommendations from career employees, and no termination decision is final until the conclusion of that process. We have no personnel announcements at this time.”
Some lawyers who routinely handle employee disputes at the FBI and other agencies said they were surprised and somewhat alarmed by the speed with which McCabe’s case was being handled.
When an inspector general review of widespread misconduct at the FBI laboratory was released in 1997, it took 14 months for the Justice Department to settle on relatively minor punishments for a couple of the employees involved.
“What raises a question for me is if they are expediting the decision in his case for political reasons in order to fire him a day before he leaves, to deny him a pension,” said Colapinto, the lawyer who has represented whistle-blowers.
“I’ve had clients at the FBI where it’s dragged out for months or even more than a year, whether by benign neglect or some other reason,” said longtime federal employment lawyer Cheri Cannon. “This is not typical of the way these agencies handle someone who’s had a long and distinguished career.”
Author:
JOSH GERSTEIN