Andrew McCabe’s settlement with the Department of Justice is a signal to John Durham

Former FBI Deputy Director Andrew McCabe was un-fired when the Department of Justice (DOJ) — now firmly under a Democratic administration — agreed to settle with McCabe by fully restoring his FBI pension and removing all records from his FBI personnel file that indicate he was fired for cause.  

It wasn’t really a settlement. McCabe sued the government, and the DOJ said, “Okay, we’ll give you what you want.” The agreement does not change the findings of DOJ Inspector General Michael Horowitz that McCabe lied under oath to investigators on three occasions; it simply eliminates all consequences for doing so. Oh, and it also forks over half a million dollars of taxpayer money to cover McCabe’s attorney’s fees. That’ll teach him a lesson for lying after raising his right hand three times and swearing not to.

DOJ’s magnanimity comes as special prosecutor John Durham has begun noose-tightening indictments in his probe of individuals involved in creating and furthering the discredited “Crossfire Hurricane” investigation.  

The DOJ cannot prevent Durham from pursuing indictments of any former FBI executives, including McCabe, should the evidence lead to that. However, if he does, McCabe’s stunning absolution by a DOJ now controlled by the Democrats strongly indicates that a presidential pardon is likely in play for anyone who so vigorously investigated Republicans without an adequate basis to do so.  

In other words, it looks like these former FBI executives now have an “insurance policy” — to borrow an infamous phrase from former FBI special agent Peter Strzok.

McCabe’s re-polishing also has the secondary salutary effect of perpetuating the longstanding Washington tradition of pushing blame as far down the hierarchy stack as possible, in order to leave unsullied the elite command staff who set the tone and lead the charge.

A few indictments of some lower-level actors? Fine, no problem. Holding higher-ups responsible, however, threatens to narrow the accountability deficit that exists across government right now, where blame for spectacular failures never seems to land on anyone in leadership.  

The details of McCabe’s misdeeds that led to his firing are well known. He claims he was a victim of a vindictive President Trump, but he lied under oath to inspector general investigators, according to Horowitz, and that sealed his fate. Lying — or “lack of candor,” as it is referred to in the bureau — is a fireable offense since it makes an FBI agent an impeachable witness and obliterates his or her ability to testify under oath in court. In effect, the capacity of an agent to function is lost. All agents know well the risk that lying has on their career. It’s no secret.

McCabe was hurriedly fired on the one-yard line just short of retirement eligibility, which affected his access to a full FBI pension. His beef with that action has some merit as inordinately punitive. Restoration of his retirement benefits is not something that most FBI agents are going to begrudge him, given his otherwise long career in the FBI.  

However, the inspector general’s public report states that McCabe lied to investigators on four occasions, three of them while under oath. His firing followed the standards consistently applied to all other FBI agents.

By agreeing to rescind all references to his firing from his personnel record, the DOJ has established a double standard, one for regular agents and one for protected agents. Since McCabe’s firing was easily defensible, this inexplicable settlement by Merrick Garland’s DOJ takes on the odor of a reward for misusing the authorities of the FBI against a political enemy of the Democratic Party.  

While Andrew McCabe is being made whole, the FBI continues to struggle with the aftermath of the destruction left behind by initiatives that apparently opened an investigation into a presidential campaign without articulating any legal basis for doing so, abused the Foreign Intelligence Surveillance Act (FISA) court, and purposefully leaked official documents to the press to create an expensive special counsel investigation into their own manufactured nothingness. The trust of many Americans in the FBI dissipated in their wake. 

And, despite all of that, the DOJ has loudly signaled that no one involved in this illicit investigation will be held accountable — except, of course, perhaps a few more lower-level functionaries. Former FBI Director James Comey, McCabe and Strzok are probably less concerned today with the efforts of Durham’s team than they were before. The insurance policy is starting to pay out.

It is disheartening to have to state the obvious, but an FBI agent should never lie. If an agent breaks bad and does lie under oath, the privilege of being an FBI agent should be taken away. That has always been the standard — at least until now. The current DOJ has decided that lies by certain people deserve no consequences. Their ill-advised settlement sets a sad precedent that will handicap the FBI’s ability to remove future liars. That’s bad for all of us.    

Kevin R. Brock, former assistant director of intelligence for the FBI, was an FBI special agent for 24 years and principal deputy director of the National Counterterrorism Center (NCTC). He independently consults with private companies and public-safety agencies on strategic mission technologies.