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Federal Judge Hands Fired FBI Deputy Director Andrew McCabe a Big Procedural Win Against Bill Barr


Fired FBI Deputy Director-turned-CNN contributor Andrew McCabe got some good news on Thursday from the federal judge presiding over his lawsuit against the DOJ: Attorney General Bill Barr’s motion to dismiss was denied.

U.S. District Judge Randolph Moss, a Barack Obama appointee, said that he would set a schedule for discovery and further proceedings in McCabe’s lawsuit against DOJ, which alleges that McCabe was “unlawfully demoted” and fired for political reasons in violation of his constitutional rights.

McCabe, the judge noted, argued he was demoted as Deputy Director of the FBI in Jan. 2018 and then “fired from his career civil service position in March 2018—on the night of his planned retirement.” McCabe maintained that this decision was “based on his perceived political affiliation, decision not to vote for then-candidate Trump in the 2016 presidential election, and unwillingness to pledge his personal loyalty to President Trump”—a violation of his First Amendment and Fifth Amendment rights.

The DOJ argued, among other things, that McCabe was not fired for political reasons, but because he lied under oath when he said he didn’t authorize and didn’t know who authorized the disclosure of the Clinton Foundation investigation to the press.

Here’s how the court summarized the DOJ’s claims:

In Defendants’ view, the Court lacks jurisdiction over Plaintiffs’ statutory and regulatory claims, while his constitutional claims fail on both the law and the facts. Most significantly, Defendants contend that Plaintiff was not fired because of his perceived political affiliation, vote in the 2016 presidential election, or refusal to pledge personal loyalty to the President but because he lacked candor (including under oath) in an investigation conducted by the FBI’s Inspection Division and the DOJ’s Office of Inspector General. Dkt. 23 at 13–18.

Judge Moss said that there were a couple of reasons why Barr’s motion to dismiss should be denied. He said DOJ’s arguments were “premised on a misunderstanding of the claims that Plaintiff asserts (and does not assert)” and that the “remainder of the motion turns on disputed questions of fact that the Court cannot resolve at this stage of the proceeding.”

“In short, it is too early in the case to determine which, if either, of the parties’ competing versions of the relevant facts is correct,” the judge said, allowing the case to move forward to discovery.

McCabe focused heavily in the lawsuit on President Donald Trump’s negative tweets about him. The judge decided discovery was needed in order to determine whether then-Attorney General Jeff Sessions was motivated by political pressure—applied by the president—to punish McCabe:

Without providing some opportunity for discovery, however, the Court cannot 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.

“Defendants might ultimately show that the Attorney General was not swayed by the President’s tweets and comments, but Plaintiff is entitled to test his claim of improper influence through discovery and the usual rules of civil litigation,” the judge ruled.

Read the opinion and order below:

Andrew McCabe survives motion to dismiss by Law&Crime on Scribd

[Image via Pete-Marovich and Getty Images]

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Matt Naham is the Senior A.M. Editor of Law&Crime.