It is not much of a surprise that the Biden Justice Department agreed to a settlement of the lawsuit brought by former FBI deputy director Andrew McCabe over the Trump Justice Department’s effort to fire him and hold him ineligible to receive his full pension. But it would be a mistake peremptorily to dismiss this outcome as nothing more than partisanship.
In addition to making no admission of wrongdoing in the settlement, the Justice Department has also left undisturbed the scathing report by Inspector General Michael Horowitz (originally appointed by President Obama and kept on by President Trump). The IG concluded that McCabe made multiple false statements to the FBI (including under oath) to cover up his role in orchestrating a leak to the press of sensitive investigative information (about a Bureau probe of the Clinton Foundation).
In February 2020 the Justice Department, under Attorney General Bill Barr, declined to prosecute McCabe on these false statements. I pointed out at the time that, in forecasting how a trial of McCabe might go before a jury in the District of Columbia, where Trump hostility runs high, prosecutors must have weighed, against strong proof of McCabe’s misconduct, the competing evidence that he was poised to exploit.
In arguing that his prosecution was the result of a political vendetta, McCabe was not just armed with unhinged tweets in which President Trump exhorted his Justice Department subordinates to take action against McCabe. (And remember that, throughout the Trump years, we repeatedly observed that Trump tweets and other running commentary on pending cases made the job of prosecutors much harder — a problem that an exasperated Barr publicly lamented.) Moreover, to repeat what I related in the above-linked column:
[N]ew Freedom of Information Act disclosures — made to meet a deadline set by District Judge Reggie Walton, which may explain the timing of the non-prosecution announcement — indicate that the Justice Department and FBI did not comply with regulations in what appears to be the rushed termination of McCabe, adding heft to the former deputy director’s claim that he was being singled out for abusive treatment, potentially including prosecution, because of vengeful politics.
It thus appears that McCabe’s case was settled because it should have been settled. McCabe had a lot to lose from further proceedings that would have returned to spotlight to the inspector general’s finding of appalling misconduct; and there is always the possibility he could have lost the case. At the same time, the Justice Department would have been embarrassed if a trial established that it had failed to comply with civil-service rules in its haste, under pressure from Trump, to remove McCabe.