The curious case of Andrew McCabe’s legal defense fund

The Justice Department recently indicted four “fraudsters” in New York who raised more than $125,000 through a bogus “wounded warrior” charity to benefit themselves rather than to help veterans. It is a recurring problem for people who watch those constant commercials showing trembling dogs in wire cages or heartbreaking kids with cleft lips. Most charities fund legitimate, desperately needed programs but often are harmed by an unscrupulous few.

One recent campaign has attracted huge donations based on dubious claims – and it comes from within the Justice Department itself. The cause is Andrew McCabe, and both the timing and the pitch are strikingly premature. Former FBI Deputy Director McCabe’s GoFundMe page for a “legal defense fund” appeared after he was fired by Attorney General Jeff Sessions. Originally asking for only $150,000, the campaign continued to adjust its goal upward and, in a matter of a few days, surpassed half a million dollars. That is equivalent to more than a decade of McCabe’s expected pension.

{mosads}McCabe issued a statement today, saying that the legal fund “will cease accepting donations on GoFundMe” and acknowledging that the “donations have more than tripled the original goal.” McCabe said in part that the campaign “began organically, with generous people spontaneously giving to accounts that others had set up. I never imagined that I would need to rely on this type of assistance.” Yet, with reports of various investigations “and misleading information about the circumstances of my firing,” he said, “the need for substantial resources for a legal team has become clear.”

Before leaving the Justice Department, McCabe seemed eager to portray himself as the putative victim. It is not easy to transform oneself from a once-powerful public official terminated for cause to the equivalent of a late-night, mud-splattered stray seeking shelter. However, McCabe had the media, which portrayed him as a noble civil servant viciously and unfairly targeted by Trump operatives.

The key to this narrative was the insistence that McCabe was fired hours from his retirement to deny him the pension that he took decades to accumulate. People were outraged, and MSNBC host Andrea Mitchell tweeted that a McCabe supporter said that “if a friendly member of Congress hired him for a week he could possibly qualify for pension benefits.” Rep. Mark Pocan (D-Wis.) thanked Mitchell on air for promoting ways to save McCabe, as he and other members of Congress offered McCabe jobs.

The problem is that the original narrative in the media bordered on the fraudulent. McCabe was never at risk of “losing his pension.” Federal Employees Retirement System benefits are vested after five years and, thus, were not “lost.” McCabe is entitled to recover at the standard period between 57 and age 62. What McCabe wanted to do is receive his roughly $60,000 annual pension early at age 50 under a special law enforcement program. His dismissal only means that he will receive the pension when he reaches the federal retirement age, like the vast majority of other federal employees. He will likely receive a pension of roughly $2 million.

But career Justice Department officials in the office of professional responsibility made the unprecedented finding that the former acting FBI director not only lied to investigators but deserved to be fired. That recommendation was reportedly embraced by the career officials in the inspector general’s office. When apolitical FBI Director Christopher Wray read the summary, he asked McCabe to take a terminal leave and not return to the bureau. Attorney General Jeff Sessions then followed the advice of those career Justice Department officials and fired McCabe.

It was curious to many that McCabe would so quickly embrace a GoFundMe site before he was “referred” for criminal investigation, let alone charged with any crime. (The inspector general could refer his case for possible criminal charges but, historically, Justice Department officials have avoided such referrals.) However, McCabe clearly did not want to wait for the release of the inspector general report on his conduct before soliciting donations.

In fact, a member of Congress has indicated that McCabe was accused of lying not once but four times about leaking information to the media on the Clinton investigation: lying to FBI Director James Comey, lying to the office of professional responsibility, and lying twice under oath to the inspector general. That is hardly the stuff for a late-night pitch for just a $19.95 monthly donation to support a self-wounded FBI man.

What also is striking is that McCabe has used the same defense as Michael Flynn, who took a plea for a single false statement to investigators. Flynn, however, was given the choice between a plea and prison. There was no pension involved. Comey’s investigators reportedly did not believe Flynn was intentionally lying in not recalling the discussion of sanctions with Russian diplomats during the presidential transition. There was nothing unlawful about the meeting, yet Flynn was charged by special counsel Robert Mueller with a false or misleading statement under 18 U.S.C. 1001.

McCabe now insists he “may well have been confused and distracted” four times, and twice under oath. Flynn reportedly took the plea after being drained of his savings, selling his house and facing the possible prosecution of his son, who served as his chief of staff. There was no GoFundMe movement for Flynn, who could still face jail.

In the end, it is not the creation of the GoFundMe page for McCabe that is concerning but its timing. Leading charity watchdogs demand full transparency and information so that “consumers or donors” are not “snookered.” If the public learns that McCabe’s wound was self-inflicted, or even criminal in character, do they get their money back? Not likely.

In the bogus “wounded warrior” case in New York, the FBI and Justice Department denounced efforts that “erode the trust and good will of those who want to contribute to legitimate” causes. McCabe might still prove to be a legitimate cause or he might not be. That is why a GoFundMe effort should follow, not precede, the report on his conduct.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.