Labor & Employment Law Daily Former FBI Deputy Director McCabe’s constitutional claims against FBI and DOJ proceed
Thursday, October 1, 2020

Former FBI Deputy Director McCabe’s constitutional claims against FBI and DOJ proceed

By Brandi O. Brown, J.D.

The long-time FBI employee who was fired on the night of his planned retirement alleged that his discharge stemmed from his unwillingness to pledge personal loyalty to President Trump and that the rush to judgment violated his due process rights.

A federal district court in the District of Columbia declined to dismiss claims brought by the former Deputy Director of the FBI, Andrew McCabe, based on his 2018 demotion and discharge. According to the deputy director, he was fired because of his unwillingness to pledge personal loyalty to President Trump, for whom he had not voted. He also alleged that the FBI and DOJ’s actions violated his due process rights with “sham and accelerated proceedings” leading to his discharge. Based on both the agencies’ “misunderstanding” of the claims asserted by McCabe, as well as disputed questions of fact, the court denied the motion to dismiss (McCabe v. Barr, September 24, 2020, Moss, R.).

Alleged Clinton connection. According to the lawsuit brought by former FBI Deputy Director McCabe, he was unlawfully demoted and fired by the FBI, where he had worked for over 20 years. He held the Deputy Director position from 2016 to 2018, and he was also briefly Acting Director. His wife had campaigned for Virginia state senate as a Democrat and in 2015, her campaign received a $467,500 contribution from a PAC affiliated with Governor Terence McAuliffe, who allegedly had a close relationship with the Clintons.

That Clinton connection led to attacks by then-candidate Trump on McCabe and his spouse. He began commenting on “the wife of the top FBI official” who was involved in investigation of the Clinton email matter, stating that “now at least we have a pretty good idea” of how she “got away with” it. In contrast, McCabe alleged that he was not involved in the email investigation prior to his 2016 promotion.

Questions about how he voted. As described in McCabe’s complaint, after taking over the White House, the president remained disgruntled by McCabe’s alleged connection to Clinton. This appeared to lead him to question McCabe’s “loyalty” to him. Twice in May 2017, the president and McCabe spoke in person, and President Trump asked McCabe how he had voted in the presidential election. McCabe finally told him that he had not voted but that he had always voted for the Republican candidate in the past.

Not long afterwards, while he was still the Acting Director (a role he took after the president fired FBI Director James Comey), McCabe learned that he was being investigated regarding a leak to the press regarding his role (or lack thereof) in another politically sensitive investigation. After a new FBI Director (Wray) was sworn in, President Trump tweeted, “Wray needs to clean house. Now we know the politicization [is] even worse than McCabe’s ties to McAuliffe/Clinton.”

Termination on cusp of retirement. By the end of 2017, news sources were reporting McCabe’s intent to retire and, according to his allegations, the investigation into him was ramped up as a result. He was demoted and announced his intention to take leave until he was eligible to retire. He announced that his retirement would begin on March 17, which meant that March 16 would be his last day of work.

On February 28, the report of the investigation into the employee went to the FBI Office of Professional Responsibility, which recommended termination. The matter went to the Associate Deputy Attorney General who informed the employee that a final decision would be made in accordance with DOJ Order 1202. His hearing was to be held on March 15 and the record, with over 1,000 pages of written materials, was made available only four days before; McCabe’s counsel ask that the hearing and deadlines be postponed, but the request was denied.

At noon on March 16, McCabe provided his written submission regarding the prior day’s hearing; at 5 p.m., McCabe alleged, he “fulfilled his final week of service with the FBI and retired from the agency.” That night, at around 10 pm, Attorney General Sessions issued a statement to the media announcing that McCabe had been fired, which was not sent to McCabe. The agencies have identified March 16 as the effective date of his termination, one day earlier than his notice of retirement and application for retirement benefits identified.

He filed suit, asserting five claims based on alleged violations of the First Amendment and the due process clause of the Fifth Amendment. The defendants moved to dismiss or, in the alternative, for summary judgment. It was denied. Out of the gate, the court ruled against the employer on its argument that the court lacked jurisdiction under the Civil Service Reform Act, noting that the CSRA posed “no hurdle to constitutional claims” and that the employee had clarified that such claims were all he intended to pursue.

First Amendment claims. Although the bulk of the court’s analysis was caught up with the substantive and procedural due process claims made by the employee, it first dealt with McCabe’s First Amendment claims. He recounted a series of statements made by the president that either suggested or directly called for McCabe’s discharge and that “invoked the President’s perception that Plaintiff supported his political rivals.”

On that basis, McCabe alleged that the employer’s given reason for his termination—”lack of candor”—was pretext and that, in fact, his discharge was motivated by the agencies’ perception of his political affiliation, his refusal to pledge personal loyalty to President Trump, and/or by pressure from Trump based on his perception of the employee’s political allegiances.

Trump’s tweets and pressure on Sessions. The agencies moved for summary judgment on this claim—before they had answered the complaint—and employee’s counsel offered a declaration under Rule 56(d) identifying the discovery he would seek with regards to pretext, including information relating to DOJ and FBI officials’ awareness and perception of several of Trump’s tweets. In one of those tweets Trump stated, “FBI Deputy Director Andrew McCabe is racing the clock to retire with full benefits. 90 days to go?!!!”

The court found that the declaration was sufficient to preclude entry of summary judgment. It explained that without some opportunity for discovery, it could not “foreclose the possibility that Attorney General Sessions felt overwhelming pressure from President Trump to take punitive action against Plaintiff (based on the President’s belief regarding Plaintiff’s political affiliation and personal loyalty) and that, to avoid angering or disappointing the President, he fired Plaintiff late on a Friday night before Plaintiff could voluntarily retire and receive all of his accrued benefits.”

Due process. As for the due process claims, McCabe alleged that his termination was a legal nullity or was ultra vires in such a way that it deprived him of his employment-related rights in violation of the due process clause. He also alleged that he was fired pursuant to “sham and accelerated proceedings” that failed to comply with policies and procedures in violation of his right to procedural due process. The court pointed out that it “need not resolve each and every dispute between the parties but, instead, must determine whether one or both of Plaintiff’s due process claims—his claim that his termination was, in fact, a nullity, and his claim that, even if he was removed, the process was both a “sham” and illegally rushed—should be dismissed.”

The court then found McCabe sufficiently alleged protected property rights (as a member of the FBI senior executive service, he could only be removed for cause; he also argued that his termination came too late on March 16 to deprive him of his retirement benefits) and a liberty interest in his reputation—but just barely.

His theory was that the president’s personal attacks on him, including that tweet referencing “90 days” had “infected the process and left senior DOJ management with only one palatable option: to remove Plaintiff before the ninety days expired.” He also plausibly alleged that he was not allowed sufficient time to review the relevant materials and to present his defense and the question of whether he was afforded the process due turned on the facts. Finally, the court concluded that the employee sufficiently alleged a substantive due process claim, at least at this early stage of the proceedings, to withstand a motion to dismiss.

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