In February 2018, the Department of Justice’s (DOJ) Office of Inspector General (OIG) issued a report summarizing the results of its investigation into statements then-FBI Deputy Director Andrew McCabe made to the FBI’s Inspection Division (INSD) and the OIG concerning the disclosure of information to the Wall Street Journal that revealed the strained relationship between DOJ and the FBI over the investigation into the Clinton Foundation. Then-Attorney General Jeff Sessions used the results of this investigation to justify firing Mr. McCabe on the eve of his planned retirement.

CREW filed a FOIA request with DOJ for the documents underlying the termination decision and, when DOJ failed to respond, sued the agency under the FOIA. That lawsuit remains ongoing, and under court order the OIG is processing 200 pages of responsive documents per month. Its latest production, made at the end of December, includes redacted transcripts from interviews conducted of a number of INSD personnel involved in the initial leak investigation, and partial transcripts of interviews of Lisa Page, former special counsel to Mr. McCabe. Although the OIG has redacted Ms. Page’s name from these documents, DOJ counsel advised CREW they pertain to her and the OIG will later produce copies without these redactions. Press reports on these disclosures suggest the big takeaway is that Mr. McCabe apologized for lying to investigators when confronted with evidence that his earlier testimony to them was not accurate. In fact, this new evidence offers raises further questions about DOJ’s termination decision and suggests a far more nuanced situation than DOJ has previously claimed, casting further doubt on DOJ’s termination decision.

Most significantly, the newly disclosed documents add some critical details to what already was publicly known. They include the following:

• Ms. Page’s conversations with the Wall Street Journal reporter were conducted with the consent and full participation of the FBI’s Office of Public Affairs (OPA);

• Deputy OPA Director Michael Kortan, who participated in the calls with the Wall Street Journal reporter and who was charged with working with Ms. Page, when initially questioned by INSD had no recollection of these events, which led him to mischaracterize the conversations as an unauthorized leak;

• Ms. Page, who was at least one FBI source for the Wall Street Journal article, did not recall a specific conversation or conversations with Mr. McCabe about talking to the reporter, and described their interactions on this subject as brief and non-specific, at least as to what she should say;

• Like Mr. Kortan, Mr. McCabe did not initially recall his role in authorizing Ms. Page to talk to the Wall Street Journal, and when subsequently questioned by INSD stated, yes, I recall that now”;

• When Mr. McCabe subsequently offered INSD an apology, INSD understood he was apologizing in response to INSD expressing frustration with the amount of work it had spent exploring what it believed to be an unauthorized leak, not for Mr. McCabe’s lack of recall.

Notwithstanding this evidence, the OIG report and DOJ’s response to litigation brought by Mr. McCabe challenging the legality of his termination attempt to tell a different story: Mr. McCabe was initially questioned under oath on May 9, 2017 about his knowledge of an apparently unauthorized disclosure to a Wall Street Journal reporter, falsely denied any knowledge of who was behind the disclosure, and months later admitted he had authorized his special counsel to talk to the reporter, but only after Ms. Page herself admitted to investigators she was the source for the Wall Street Journal article. According to DOJ, this interview as well as two subsequent interviews of Mr. McCabe on July 28 and November 29, 2017, show a lack of candor and it is this “evidence” that led Attorney General Sessions to conclude Mr. McCabe’s employment with the FBI should be terminated immediately.

Mr. McCabe has offered an alternative narrative that ultimately leads back to President Trump and his continuous pressure on DOJ to fire Mr. McCabe. In his declaration submitted in support of his civil lawsuit, Mr. McCabe described his interactions with the Trump White House, including a February 10, 2017 meeting with then-White House Counsel Donald McGahn and Vice President Mike Pence, after which he was told “White House officials were questioning my commitment to the Trump Administration.” (McCabe v. Barr, Civil No. 19-2399 (RDM) (D.D.C.), ECT No. 27-21, at par. 17.) Approximately five days later, then-White House Chief of Staff Reince Priebus asked Mr. McCabe “to have the FBI publicly refute a recent news story that was unfavorable to Trump.” Id. par. 18. When Mr. McCabe refused “on FBI policy-grounds,” Mr. Priebus told him “that the FBI and I were not ‘good partners’ to Trump.” Id. On March 6, 2017, Mr. McCabe learned “that White House officials were looking for ways to fire [FBI Director James] Comey, and that these officials did not understand why Comey had not yet removed me from my position.” Id. par. 19.

These events preceded the May 9, 2017 meeting Mr. McCabe had with INSD, from which the OIG used McCabe’s statements as evidence that he lacked candor—the purported basis for his termination. Specifically, the OIG pointed to his statements that he did not know the source of the reporting in the Wall Street Journal concerning a phone call Mr. McCabe had with DOJ’s Principal Associate Deputy Attorney General (“PADAG”) in which the PADAG expressed his displeasure that the FBI was continuing to investigate the Clinton Foundation. See, e.g., OIG Report at 16. According to the article, during the conversation Mr. McCabe refused to close what he described as a validly predicated investigation. OIG Report at 11.

Mr. McCabe’s May 9, 2017 INSD Interview

The newly-disclosed documents show that Mr. McCabe met with INSD personnel on May 9 as part of their investigation into an entirely separate referral Mr. McCabe had made to the inspection division concerning the unauthorized publication of an allegation “that Mr. McCabe had made derogatory comments about former National Security Advisor General Michael Flynn and President Trump, during his private executive FBI meetings.” FBI 18-cv-01766-372. (The numbered references are to the bates-stamped numbers on the newly released documents.) This leak investigation was one of “multiple media leaks that were unfolding,” and one of the inspectors involved in interviewing Mr. McCabe described the situation as “a little bit of a blur.” Id. See also FBI 18-cv-01766-380 (“Keep in mind we have a lot of media leak investigations. We were juggling, or I should say I was juggling live balls.”) INSD arranged the May 9 meeting to go over with Mr. McCabe his draft statement concerning the Flynn leak. See FBI 18-cv-01766-374; FBI 18-cv-01766-472. Mr. McCabe did not consider this meeting to be “an interview.” McCabe Decl. par. 17.

INSD’s questioning about the unrelated and separate Wall Street Journal article occurred at the tail end of the May 9 meeting, and was described as “the secondary focus of that particular interview.” Id. In fact, one of the supervisory special agents who participated in the May 9 meeting stated during his interview with the OIG that he had recommended against bringing up the article with Mr. McCabe. He was overruled, and had “the impression that this was something coming from our front office, that they wanted some visibility on this. Or maybe it came from OIG.” FBI 18-cv-01766-473. INSD spent only about five to seven minutes on this topic with Mr. McCabe, who at that time indicated “he had no idea where it [the information in the Wall Street Journal article] came from what the source was from it.” FBI 18-cv-01766-475. Another INSD investigator testified that “[t]he Wall Street Journal article was not, my understanding was that it was not going to be a part of this investigation.” FBI 18-cv-01766-412.

As Mr. McCabe has pointed out and as DOJ has acknowledged, the subject of the Wall Street Journal article concerned a time period when Mr. McCabe “was ‘facing unprecedented and unimaginable pressure and challenges,’” (Letter from Michael R. Bromwich, counsel for Mr. McCabe, to Associate Deputy Attorney General Scott N. Schools, Mar. 16, 2018, FBI 18-cv-01766-250)  specifically investigations implicating both presidential candidates and increasing pressure from President Trump to fire him and FBI Director Comey. Within hours of meeting with INSD on May 9 Mr. McCabe learned President Trump had fired Director Comey and he was now the Acting FBI Director. FBI 18-cv-01766-474. “Abruptly assum[ing] responsibility for leadership of the entire Bureau in a tumultuous period of uncertainty and political turmoil,” id., Mr. McCabe now faced increased pressures and responsibilities.

Mr. McCabe’s August 18, 2017 INSD Interview

According to the OIG Report, INSD interviewed Ms. Page on August 7, 2017. OIG Report at 20. During the interview she identified herself as the source for the Wall Street Journal article. Id. Following this interview, INSD met with Mr. McCabe on August 18, 2017. At that interview, INSD asked him if he had authorized “someone to go on background with” the Wall Street Journal reporter, to which he responded “yes, I recall that now.” FBI 18-cv-01766-415 (emphasis added). The other INSD investigator present at this interview recalled telling Mr. McCabe that they had “put a lot of work into” identifying the source of what they believed was a leak based on Mr. McCabe’s prior statements, spending “long nights and and weekends working on this trying to find out who amongst your ranks of trusted people would, would do something like that,” to which Mr. McCabe responded, “yeah, I’m sorry.” FBI 18-cv-07166-480. Mr. McCabe also explained “something to the effect that well there was a lot going on then.” Id. Contrary to the public reporting on this apology, INSD interpreted the apology not as applying to Mr. McCabe’s prior lack of recall, but “for my [INSD inspector] comment of saying, hey, we threw a lot of work into this.” FBI 18-cv-01766-483.

But while Mr. McCabe now recalled authorizing Ms. Page to work with Michael Kortan, then Deputy Director of the FBI’s Office of Public Affairs (OPA), and to speak on background to the Wall Street Journal, he did not recall when he “gave authorization to go on background.” FBI 18-cv-01766-416. Nor did Mr. McCabe recall specifically telling Ms. Page or Mr. Kortan to mention his call with the PADAG, “[b]ut he assumed when he read the article and it was in the article, that they were the ones who told the reporter about the call.” FBI 18-cv-01766-418. The INSD investigator interviewed by the OIG about the August 18 interview explained his understanding of what Mr. McCabe knew and did as follows:

I think he generally knew that they were going to have an on-background discussion where they were going to clear up inaccuracies in the October 24th article. But I don’t think it got that specific.

FBI 18-cv-01766-420. Even though Mr. McCabe did not recall specifically authorizing Ms. Page to tell the Wall Street Journal about his telephone call with the PADAG, “he took responsibility, or he took ownership of it.” FBI 18-cv-01766-482. This is consistent with an observation of an INSD investigator that Mr. McCabe “stands by his people. He is a good man.” FBI 18-cv-01766-499. This same investigator speculated that the discrepancies in Mr. McCabe’s statements may be due to him “try[ing] to protect someone. I don’t know. That’s, that’s a possibility.” Id.

INSD did not explore this issue further, including the differences between Mr. McCabe’s May 9 statements and those he made on August 18, because they also learned that the OIG was investigating these same events. FBI 18-cv-01766-417. As a result, INDS considered its investigation to be incomplete and INSD was unable to resolve “where the truth lies.” FBI 18-cv-01766-389. But Mr. McCabe made it clear to INSD at the August 18 meeting that his statement had to be changed, particularly about the Wall Street Journal article. FBI 18-cv-01766-420.

Ms. Page’s INSD Interviews

The newly disclosed documents do not include the transcript of INSD’s August 7 interview with Ms. Page, but they do include partial transcripts for INSD’s interviews of Ms. Page on September 7 and October 26, 2017. During the September 7 interview, INSD showed her a copy of the Wall Street Journal article. FBI 18-cv-01766-567. She freely acknowledged being the “source on background” for the article at the direction of Mr. McCabe and an individual whose name is redacted but who clearly was Mr. Kortan. As Ms. Page explained, the purpose of her providing information to the Wall Street Journal was “to correct the inaccurate sort of representations” in a prior October 24, 2016 Wall Street Journal article. FBI 18-cv-01766-568. Toward that end, she and Mr. Kortan intended “to paint a fully accurate picture.” FBI 18-cv-01766-576. When pressed on what specifically Mr. McCabe had asked her to clarify, she testified:

I don’t, I don’t think it’s quite that, quite that direct. I mean, part of it is I knew the facts myself. Right? And so, I knew and I don’t remember, like, when you have a particular conversation about it . . . And so, I’m certain after getting the article, Andy and I sat down as we would and said, like, well that’s totally not true, because remember blah, blah, blah happened . . . And so, my recollection is it would have happened–what I don’t recall happening is, okay [redaction] so, we’re going to need to say . . . I mean, that’s just sort of how we worked. And so it would have just been, my speculation, although I don’t have a precise memory.

FBI 18-cv-01766-579-580 (emphasis added).

In a subsequent interview with the OIG on October 26, 2017, Ms. Page reiterated that Mr. McCabe had authorized her to talk to the Wall Street Journal reporter on background, but again she was hazy on details of any specific conversation with Mr. McCabe beyond the fact that he had “authorize[d] me to sort of help clarify those facts [referring to Clinton Foundation].” FBI 18-cv-01766-586. She couldn’t recall specifically how she came to assist Mr. Kortan in speaking to the reporter, and when pressed about the scope of any authorization she was given, Ms. Page testified that

it’s less formalistic . . . I think he [McCabe] just says talk to [Kortan] and, you know, there’s this reporter who has questions about the McCabe and Clinton Foundation. And again, it’s, it’s pretty general, is my recollection.

FBI 18-cv-01766-587. When pressed about the specifics of any conversation she had with Mr. McCabe on this, Ms. Page testified it probably lasted “a minute-and-a-half. I really, I don’t remember it being deeply substantive beyond sort of the, the broad topics.” FBI 18-cv-01766-588 (emphasis added). Following her initial conversation with the Wall Street Journal reporter, Ms. Page recalled a follow-up conversation with Mr. McCabe during which he

probably reminds me of the, that engagement [his conversation with the PADAG], which is directly contrary to an order to essentially stand down the investigation . . . I don’t think that he directs me to say it. He just sort of reminds me of, of that salient fact.

FBI 28-cv-02766-588-589 (emphasis added). See also FBI 18-cv-01766-593 (“I don’t think he [McCabe] explicitly said go tell this to Barrett [Wall Street Journal reporter], right? But in my back-and-forth describing, again, this is, I don’t have a precise recollection of this, so this is a little bit of me filling in the gaps here”); FBI 18-cv-01766-599 (“I don’t remember having a deeply substantive conversation with him [McCabe] about what I would and wouldn’t say I think he just sort of knew I had a general knowledge of the facts. So, I don’t recall a substantive back-and-forth with him about it.”)

Critically, Ms. Page described the FBI’s OPA and Mr. Kortan as involved at all times with her interactions with the Wall Street Journal, including her specific conversations with the reporter. FBI 18-cv-01766-595. She stated, and the questioner agreed, that it was OPA’s job to determine the rules of the engagement, including scope of authorization and whether the conversation would be off the record. FBI 18-cv-01766-587. An INSD investigator confirmed this was “an authorized disclosure of information that was overseen by the Office of Public Affairs.” FBI 18-cv-01766-411 (emphasis added).

Mr. Kortan’s Role

The newly released documents do not include any transcripts of interviews with Mr. Kortan, but both Ms. Page and INSD investigators testified as to his role in Ms. Page’s conversations with the Wall Street Journal. Mr. McCabe initially directed Ms. Page to “talk with [Kortan] and work with this [Wall Street Journal] reporter” on the issue of the FBI’s investigation into the Clinton Foundation. FBI 18-cv-01766-587. Mr. Kortan was present for each of her conversations with the reporter. FBI 18-cv-01766-595. When asked about these conversations, however, Mr. Kortan initially had no recollection of the conversations with the Wall Street Journal and, when shown the article, “said, ‘oh, I would call this a leak.’” FBI 18-cv-01766-431. See also FBI 18-cv-01766-434. Subsequently, after reviewing emails, Mr. Kortan recalled that the conversations were done on background. FBI 18-cv-01766-431. Indeed, he felt embarrassed that he hadn’t remembered the authorized conversations in his initial interview. FBI 18-cv-01766-436, FBI 18-cv-01766-439 (describing Kortan as “slightly embarrassed about not recalling it and mentioning I’m old and maybe I should start taking notes now”). Mr. Kortan’s recollections and role are consistent with the fact, noted by an INSD investigator, that “nobody from OPA or the seventh floor reported that to us as misconduct, as, as a leak.” FBI 18-cv-01766-495.

With each production, the OIG has added critical and revealing facts to the larger story of why DOJ terminated Mr. McCabe. The full story has yet to emerge, but CREW anticipates the OIG’s next production at the end of January will continue to raise as many questions as it answers.

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