Criminal Justice & the Rule of Law

Thoughts on Andrew McCabe’s 60 Minutes Interview

Quinta Jurecic, Benjamin Wittes
Monday, February 18, 2019, 6:07 PM

The former acting FBI director’s account doesn’t change the fundamentals of the story, but it puts a lot of flesh on the bones.

Deputy Director Andrew McCabe addresses the audience during Director Christopher Wray’s formal installation ceremony in September 2017. (Source: Flickr/FBI)

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Andrew McCabe’s lengthy interview with CBS’s 60 Minutes this weekend should not in any profound respect change one’s understanding of L’Affaire Russe or the investigation of it. It does, however, substantially enrich that understanding, adding important texture and detail in a number of different areas and sharpening some questions prior news stories had already posed. On two major issues, in particular, McCabe’s interview refines the picture in important respects.

First off, there’s what would have been the big bombshells of the interview: that Deputy Attorney General Rod Rosenstein suggested invoking the 25th Amendment to remove President Trump from office and floated the idea of his wearing a wire into the White House to record his conversations with the president. These points were far less dramatic than they would have been had they not already been reported by the New York Times back in September of last year.

McCabe’s account in his interview is broadly consistent with the initial Times story. That is no surprise. The original story was sourced to people “briefed either on the events themselves or on memos written by F.B.I. officials, including Andrew G. McCabe,” and it described conversations between Rosenstein and McCabe, among others. In other words, while McCabe’s lawyers stated at the time that “no one associated with Andrew McCabe or his team shared, read [or] described … any part of his memos with any reporter,” the Times’s sourcing clearly indicates that the story reflects the point of view of the former deputy director. It was, after all, based ultimately on his memos.

But having a derivative account of McCabe’s contemporaneous memos is different from having him tell his story himself before a camera. And now McCabe is on the record confirming those reports and fleshing them out. And his account to 60 Minutes helps clarify the story that the Times first reported—chiefly in contradicting Rosenstein’s own account of the matter. In response to the initial Times report, Rosenstein issued a statement declaring that the story was “inaccurate and factually incorrect” and that, “Based on my personal dealings with the president, there is no basis to invoke the 25th Amendment.” The Justice Department also provided an anonymous official’s comment that Rosenstein had made the comment about wearing a wire sarcastically. Soon after the Times’s report was published, the Washington Post quoted a source who likewise characterized Rosenstein’s comments as sarcasm, along the lines of, “What do you want to do, Andy, wire the president?”

McCabe’s own account raises serious questions about Rosenstein’s comments at the time, and the suggestion, never made publicly by Rosenstein himself, that the wire-wearing offer was sarcastic. McCabe paraphrases Rosenstein as saying: “I never get searched when I go into the White House. I could easily wear a recording device. They wouldn’t know it was there.” Rosenstein, he says, “was not joking” about wearing a wire. “He was absolutely serious.”

By McCabe’s account, he did not seriously consider implementing Rosenstein’s suggestion—but he did discuss it with the FBI’s leadership team. Notably, he describes then-FBI General Counsel Jim Baker as having been the one to throw cold water on the idea: “I think the general counsel had a heart attack. And when he got up off the floor, he said, ‘I, I, that’s a bridge too far. We’re not there yet.’”

McCabe also provides more context on Rosenstein’s suggestion of invoking the 25th Amendment, which he characterizes as “something that [the deputy attorney general] kinda threw out in a very frenzied chaotic conversation.” In McCabe’s account, “he was discussing other cabinet members and whether or not people would support such an idea.” (Notably, while McCabe told Pelley that he couldn’t recall whether Rosenstein “assign[ed] specific votes to specific people,” the Times describes Rosenstein as telling McCabe that “he might be able to persuade Attorney General Jeff Sessions and [then-Secretary of Homeland Security] John F. Kelly” to turn against the president.)

The president has described McCabe and Rosenstein as “planning a very illegal act” together in plotting to invoke the amendment—but according to McCabe, the idea was all Rosenstein’s. “I didn’t have much to contribute,” he told 60 Minutes of the discussion. His lawyers have further emphasized this point, stating that “at no time did Mr. McCabe participate in any extended discussions about the use of the 25th Amendment, nor is he aware of such discussions.” In this version of events, the FBI seems to have taken the prospect of Rosenstein’s wearing a wire more seriously than his 25th Amendment suggestion.

Is McCabe’s account of these matters credible? McCabe is, to be sure, a problematic figure. He was fired after the Justice Department’s inspector general issued a report finding that he had made false statements concerning a disclosure to the press he had authorized. In the interview, his explanations for this episode are underwhelming. “Did I ever intentionally mislead the people I spoke to? I did not,” he says. “I had no reason to. And I did not.” The report’s finding that he “lacked candor” in his answers on multiple occasions, combined with this unimpressive denial, make it tempting to resolve factual disputes between him and Rosenstein in the latter’s favor.

But that’s too easy, because Rosenstein is not denying the substance of what McCabe is saying. In the Justice Department’s statement in response to McCabe’s comments, the department states that “the Deputy Attorney General again rejects Mr. McCabe’s recitation of events as inaccurate and factually incorrect.” The statement doesn’t actually contradict McCabe’s factual claims; it contradicts claims he does not make.

"The Deputy Attorney General never authorized any recording that Mr. McCabe references,” the Justice Department contends, though McCabe does not allege that Rosenstein “authorized” any recording.

And the department states that: “As the Deputy Attorney General previously has stated, based on his personal dealings with the President, there is no basis to invoke the 25th Amendment, nor was the DAG in a position to consider invoking the 25th Amendment.” But McCabe never says that Rosenstein concluded that the amendment should be invoked—merely that he raised the idea and seemed to be counting votes on the subject. That the department’s statement does not deny.

In short, notwithstanding McCabe’s credibility issue—which is real—he is not the one coming off as cagey here. If Rosenstein and the Justice Department do not want people to believe McCabe’s account, they will need to start by denying it clearly. Evidently doing so presents a problem for them.

Second, McCabe also puts on the record for the first time both confirmation of and details behind a more recent New York Times story—this one about the opening of the counterintelligence and criminal investigations against Trump after James Comey’s firing. McCabe’s account is, once again, highly consistent with the Times’s reporting. It’s also consistent with the analysis one of us published on Lawfare in conjunction with the publication of that Times report—an analysis that argued that the obstruction and collusion components of the investigation were “far more integrated with one another than [was] previously understood.”

Specifically, McCabe says that the bureau opened the counterintelligence investigation—in addition to a criminal obstruction probe—because,

if the president committed obstruction of justice, fired the director of the of the FBI to negatively impact or to shut down our investigation of Russia’s malign activity and possibly in support of his campaign, as a counterintelligence investigator you have to ask yourself, “Why would a president of the United States do that?” So all those same sorts of facts cause us to wonder is there an inappropriate relationship, a connection between this president and our most fearsome enemy, the government of Russia?

What aspects of the president’s conduct concerned the bureau to such an extent that it opened the criminal investigation? McCabe walks through the FBI’s thinking in detail:

There were a number of things that caused us to believe that we had adequate predication or adequate reason and facts, to open the investigation. The president had been speaking in a derogatory way about our investigative efforts for weeks, describing it as a witch hunt … publicly undermining the effort of the investigation. The president had gone to Jim Comey and specifically asked him to discontinue the investigation of Mike Flynn which was a part of our Russia case. The president, then, fired the director. In the firing of the director, the president specifically asked Rod Rosenstein to write the memo justifying the firing and told Rod to include Russia in the memo. Rod, of course, did not do that. That was on the president's mind. Then, the president made those public comments that you've referenced both on NBC and to the Russians which was captured in the Oval Office. Put together, these circumstances were articulable facts that indicated that a crime may have been committed. The president may have been engaged in obstruction of justice in the firing of Jim Comey.

McCabe’s description of “articulable facts” is a reference to the standard for opening a full FBI investigation as set out in the Attorney General’s Guidelines, which require “an articulable factual basis ... that reasonably indicates” that an “activity constituting a federal crime or a threat to the national security has or may have occurred, is or may be occurring, or will or may occur,” and that the investigation “may obtain information relating to the activity or the involvement or role of an individual, group, or organization in such activity.”

McCabe’s account of the bureau’s thinking is consistent with the Times’s description of the bureau’s reasoning, which points  to both Trump’s focus on Russia being included in Rosenstein’s memo and the president’s NBC interview as major factors in opening the investigation. According to the Times, however, Trump’s Oval Office meeting with the Russian ambassador and foreign minister—in which the president bragged that he had “taken off” the pressure of the Russia investigation by firing Comey—took place after the counterintelligence investigation had been opened. It’s not clear what to make of this discrepancy.

Notably, McCabe makes clear that Rosenstein was specifically involved in the decision to open the counterintelligence and criminal investigations and was supportive of it. “When you decided to launch these two investigations,” he is asked, “was the deputy attorney general, Rod Rosenstein, onboard with that.” Responds McCabe, “Absolutely.”

There’s a lot of other weird stuff in the interview. There’s McCabe’s righteous incredulity at the president’s solicitude for Vladimir Putin’s judgment over that of his own intelligence community. There’s McCabe’s own account of his interactions with the president over McCabe’s wife, whom Trump called a “loser” to her husband. And there’s McCabe’s very peculiar claim (which the New York Times also reported in the original 25th Amendment story) that Rosenstein, having played a key role in Comey’s firing, nonetheless wanted to consult with him concerning whether he should appoint a special counsel:

ANDREW MCCABE: He mentioned to me how highly he thought of Jim Comey. And he mentioned that he would like to speak to Jim Comey about it.

SCOTT PELLEY: After Comey was fired?

ANDREW MCCABE: That's correct.

SCOTT PELLEY: Rosenstein had been the one who wrote the memo that got Comey fired. And now, he wants to reach out and ask him for advice?

ANDREW MCCABE: He did. He did. He raised the issue with me twice.

Should any of this change one’s fundamental understanding of any of the individuals or events in question? Probably not. But as the picture comes into tighter focus, the image that emerges is of a chaotic period, one in which everyone was under intense stress and Rosenstein in particular was handling the stress badly and making erratic judgments. McCabe’s account doesn’t change the fundamentals of the story, but it puts a lot of flesh on the bones. And it makes clear that at least one former senior official will put his name behind a series of stories that until now had been sourced anonymously in the New York Times.

Quinta Jurecic is a fellow in Governance Studies at the Brookings Institution and a senior editor at Lawfare. She previously served as Lawfare's managing editor and as an editorial writer for the Washington Post.
Benjamin Wittes is editor in chief of Lawfare and a Senior Fellow in Governance Studies at the Brookings Institution. He is the author of several books.

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