Judicial Watch Fights Uphill Battle for McCabe Texts

FBI has refused to hand over FOIA-requested documents

Andrew McCabe / Getty Images
March 20, 2018

Even though FBI Deputy Director Andrew McCabe was fired last Friday, it is an open question as to whether the FBI will release text messages he exchanged on government-issued or personal phones or try to shield them from public scrutiny.

Judicial Watch, a conservative watchdog organization, has spent months pursuing a Freedom of Information Act lawsuit demanding the release of texts McCabe exchanged with colleagues.

The FBI has so far refused to comply with a court order to produce the texts, handing over emails and other information to Judicial Watch but legally demurring on whether it even has access to the electronic messages, Judicial Watch president Tom Fitton said in an interview.

"We do not believe that any reasonable search [of McCabe's records] would have left uncovered the text issues," Fitton told the Washington Free Beacon Monday. "This is just gamesmanship by the FBI. We've been asking questions about it, but we have been told to go jump in a lake, figuratively."

"We know when an agency is being cooperative versus showing their arrogance and stonewalling, and the FBI is operating with complete arrogance," he said.

The FBI did not respond to a request for comment.

Judicial Watch filed a lawsuit on behalf of retired FBI senior special agent Jeff Danik, who spent more than 28 years with the bureau as a supervisor in the counter-terrorism division and other senior-level roles.

Danik first filed a Freedom of Information Act (FOIA) request asking for the McCabe's texts and other electronic messages, in October 2016. When the FBI denied his request several times, he and Judicial Watch teamed up to sue for the documents.

The FBI has until mid-May to provide to the court its latest legal reasoning for failing to produce the texts and other documents requested. The issue may be moot by then because Justice Department Inspector General Michael Horowitz is expected to produce a report by the end of March assessing the bureau's handling of the Clinton investigation.

The report is expected to implicate McCabe, not only for repeated "lack of candor" to OIG investigators and his colleagues in the Office of Professional Responsibility, but also for playing a role in trying to curtail at least part of the FBI's investigation into Clinton's email server.

Attorney General Jeff Sessions fired McCabe late Friday, just days before his retirement benefits would have set in, for alleged misconduct uncovered by both the OIG and the Office of Professional Responsibility.

The text messages are of particular interest to Republicans investigating former FBI director James Comey's tenure at the Bureau and Comey's and McCabe's handling of the Bureau's probe into former secretary of state Hillary Clinton's personal email server as well as the launch of the FBI's investigation of the Trump campaign and its ties to Russia.

The Justice Department's Inspector General unearthed text messages between two FBI officials who worked on Special Counsel Robert Mueller's Russia investigation before being removed that criticized Trump in harsh terms and mentioned the prospects of an "insurance policy" against a Trump presidency.

The electronic messages between FBI counterintelligence official Peter Strzok and Lisa Page, an FBI lawyer, that mention an "insurance policy" also refer to the potential of Strzok working for "Andy"—a reference to McCabe.

"I want to believe the path you threw out for consideration in Andy's office—that there's no way [Trump] gets elected—but I'm afraid we can't take that risk," Strzok wrote to Page in a text released by the Justice Department dated Aug. 15.

"It's like an insurance policy in the unlikely event you die before you're 40," Strzok wrote in the text.

Several Congressional Committees have also sought texts from McCabe to no avail.

Sen. Chuck Grassley (R., Iowa), who chairs the Judiciary Committee, asked for copies of the text messages the pair exchanged and any communications they had with McCabe.

Grassley also demanded to know when Deputy Attorney General Rod Rosenstein first learned about the texts.

McCabe first came under scrutiny for playing a key role in the Clinton email investigation even though his wife received $700,000 from Virginia Democrats when she was running for statewide office. That sum includes nearly $500,000 from a political committee affiliated with Virginia governor Terry McAuliffe, a close friend of the Clintons who served on the board of the Clinton Global Initiative.

Emails Judicial Watch received as part of its FOIA lawsuits showed that McCabe failed to recuse himself from the Clinton email probe until one week before the presidential election.