By Frank Bowman
Attorney General Jeff Sessions fired Former Deputy Director of the FBI Andrew McCabe late last night, barely a day before his pension would have vested. This event tells us more about Mr. Sessions than Mr. McCabe. And to me, whatever McCabe’s transgressions, the man who is leaving the Justice Department looks rather better than the man who, for now, continues to head it.
Let’s begin with a few obvious points:
- The official reason for McCabe’s firing was a conclusion by the Justice Department’s Inspector General that McCabe had been less than candid about the circumstances under which he authorized the release of information to reporters from the Wall Street Journal about aspects of the Clinton investigation. I am obviously not privy to the particulars of that IG report; however, I have some acquaintance with Michael Horowitz, DOJ’s Inspector General. I know him as an excellent lawyer, an honest man, and a nonpartisan straight arrow. He is an Obama appointee and certainly no Trump flunky. Hence, it seems very likely that McCabe did cross some professional line.
- That said, the decision about what penalty to impose for McCabe’s transgression did not rest with Michael Horowitz. It has been reported that the FBI’s Office of Professional Responsibility recommended that McCabe be fired. If true, that lends further credence to the notion that McCabe’s transgression was fairly serious, or at least that reasonable professionals could view it as being so.
- Nonetheless, the timing of the firing, after the business day on a Friday, and mere hours before McCabe qualified for a pension earned for more than 20 years of FBI service — which excepting whatever lapse of judgment got him fired, was by all accounts exemplary — can only be seen as small, vindictive, and mean spirited. Which is to say that one would see Mr. Trump’s signature in the affair even if that master of pettiness and bile had not publicly complained that McCabe might be allowed to retire with his pension.
- Jeff Sessions made this call. He could have followed the advice of the FBI’s professional responsibility office and separated McCabe from government service, but a person of any class would either have allowed McCabe to retire or at worst ordered his termination sometime in the coming weeks. Instead, he cravenly chose to do the bidding of his dark master and snatch pension benefits from a career public servant.
The result is that Sessions looks far worse than McCabe. He is exposed as a hypocrite, a weakling, and a fool.
Hypocrite: The idea that Donald Trump and Jeff Sessions combined to fire a career FBI agent for “lack of candor” reeks to heaven of hypocrisy. Mr. Trump’s incorrigible dishonesty is by now so universally recognized that it no longer elicits much more than weary groans. He lies to everyone, including foreign heads of state, and then brags about the lies. But Sessions’ slate is hardly clean. This is a man who has made repeated misstatements to the Senate about his Russian contacts. When called to account by former colleagues, he feigned outrage at the challenge to his honor, but the display rendered his strategic misrememberings no less incredible. That this precious pair of dissemblers have the gall to discipline anyone else for lack of candor is very hard to stomach.
Weakling: The decision to fire McCabe when and how he was fired was a transparent bow to the wishes of Mr. Trump. While the manner and timing of McCabe’s release may not have violated DOJ personnel rules (although that is a contestable point which McCabe may raise in court), it was, so far as I know, unprecedented. I know of no case where a president publicly campaigned for the firing, humiliation, and financial punishment of a third-tier career public servant. Still less am I aware of any case where a cabinet officer was so spineless as to acquiesce in such executive bullying. To give him his due, Jeff Sessions has occasionally shown signs of independence and a desire to protect the institutional integrity of the Justice Department, most recently his staged public dinner with Deputy AG Rod Rosenstein and Solicitor General Noel Francisco. But the McCabe firing demonstrates, at least to my mind, Sessions’ essential hollowness. Trump is a bully. Sessions, who for all his well-documented flaws has led a life of far greater accomplishment than our erstwhile president, nonetheless lacks the moral core that moves persons of decency to stand up to bullies.
Fool: Perhaps the most remarkable thing about Sessions’ toadying to Trump by humiliating McCabe is not the meanness or the cowardice, but that, even as part of a selfish calculus of self-preservation, it surely will do Sessions no good. Trump wants him out because, so long as Sessions is both AG and recused from overseeing Robert Mueller’s investigation, Trump can’t stop or cripple the investigation. Therefore, Sessions is a dead man walking. The only questions are when the axe will fall and how Sessions will be remembered once he’s gone. Sessions is mad to think that the mad king will be sufficiently mollified by the manner of McCabe’s departure to preserve Sessions in office even a single day longer than would be the case had Sessions exhibited some magnanimity and grace. And by yielding to the vicious whims of the plutocrat in the White House to gratuitously strike at the retirement security of a middle class career FBI agent, Sessions will earn the deserved contempt of all those who have ever been in federal service.
There is, or at least I hope there will prove to be, a sad moral in the tale of Jeff Sessions. He hitched his wagon to the rising star of a man manifestly unfit for the high office of the presidency. And he was rewarded beyond any reasonable expectation with his dream job — Attorney General, head of an agency that I think Sessions genuinely reveres. But what Sessions is likely to find in the end is that his betrayal of principle in the pursuit of ambition will yield only ashes. His lies to congress in the service of an unworthy boss have cost him the respect of many of his former senatorial colleagues. His truckling to Trump, including the cruelty to McCabe, will cost him the respect he craves from the professionals of the Justice Department.
Jeff Sessions’ story is not yet ended. He may yet redeem himself by some act of unexpected political courage. But at the moment, he risks relegation to the small, sad club of ignominiously failed Attorneys General. And his name will be spoken, when it is remembered at all, in company with Alberto Gonzales and John Mitchell, men too warped and small for the great office they ultimately sullied.
Trump has no class. Sessions has covered himself with ignominy by doing his bidding.
Tim Es said:
Although character’s important, when the investigation structure has the investigated (Trump) as head authority over investigators (Mueller’s boss, FBI, DOJ, Intel, US Attnys) the setup’s prone to corruption.
We let Watergate’s fix, Independent Csel lapse—but current events indicate this was unwise. Do you agree Prof Bowman? And do you agree that moving Mueller into an Independent Csel role with Judicial oversight would be now desirable, if votes could be obtained?
Candidly, I’m unsure. Post-Watergate independent counsel investigations raised lots of questions about the wisdom of having a prosecutor effectively outside of executive branch control. The Clinton mess was a direct result of a misuse of the power of the independent counsel. And a number of IC investigations of lesser executive branch officials were also extremely troublesome. That said, the choice to let the IC law lapse resulted from the intersection of two lines of thinking – first, the post-Watergate IC statute was problematic, and second, nobody anticipated a situation where politics became as tribal as they now are and centuries-old behavioral norms would fail to constrain presidential behavior.
Bottom line — I wouldn’t be opposed to some statutory strengthening of the independence of the special counsel position. But I’d have to see the particulars.
If you call that a wishy-washy answer, I won’t disagree. But i think the devil would be in the details. And I’d want to know the details.
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