Can fired deputy FBI director Andrew McCabe sue over his termination?
Andrew McCabe, via Wikimedia Commons.
Corrected: Fired deputy FBI director Andrew McCabe has a couple legal options after his termination Friday, but neither is a sure thing.
That’s the conclusion of experts who spoke with Politico after Attorney General Jeff Sessions announced in a statement that McCabe should be fired because he “had made an unauthorized disclosure to the news media and lacked candor—including under oath—on multiple occasions.” McCabe was fired two days before his retirement, and it means he is no longer eligible for a full pension.
McCabe responded to his firing in a statement that said he was authorized to share information with reporters, and he answered questions “as truthfully and accurately” as he could “amidst the chaos” surrounding him.
Experts told Politico that most federal civil service workers who believe a punishment is excessive can appeal to the Merit Systems Protection Board. After a decision is made, the worker could then take his case to court. But that civil service option isn’t available to McCabe.
Because McCabe is a law enforcement employee, he can’t appeal to the Merit Systems Protection Board, according to Washington employment lawyer John Mahoney, who spoke with Government Executive. (An exception is made for veterans.) McCabe might have a case with the Equal Employment Opportunity Commission if he could prove discrimination, Mahoney said.
If McCabe was a civil servant for 20 years, he does have due process rights to a proposed removal that include access to evidence, and a reasonable opportunity to reply before receiving a written decision.
A second option is to file a federal lawsuit that contends McCabe’s firing was so egregious that it violated his rights to due process and First Amendment freedoms. Such a lawsuit would likely argue that he was fired as a result of political pressure.
President Donald Trump has long complained that McCabe might have favored Hillary Clinton in FBI investigations because McCabe’s wife received political donations from a Democratic-linked political action committee when she ran unsuccessfully for the U.S. Senate. Previous reports also said Trump had asked McCabe how he voted in the election.
After McCabe was fired, Trump tweeted that McCabe’s firing was “a great day for democracy.” In another tweet, Trump mentioned the campaign donation. “How many hundreds of thousands of dollars was given to wife’s campaign by Crooked H friend, Terry M, who was also under investigation?” Trump tweeted.
McCabe alluded to alleged political pressure in his statement when he said the investigation of his actions “became a part of an unprecedented effort by the administration, driven by the president himself, to remove me from my position, destroy my reputation, and possibly strip me of a pension that I worked 21 years to earn.” McCabe saw the president’s comments as “part of this administration’s ongoing war on the FBI and the efforts of the special counsel investigation.”
David Colapinto, a lawyer who has represented FBI whistle-blowers, outlined for Politico the possible allegations McCabe could make in a federal lawsuit.
He could argue that the White House put political pressure on the attorney general to fire McCabe, raising an inference of retaliation in violation of McCabe’s First Amendment rights to freedom of speech and association, and to petition Congress. Trump’s comments about McCabe’s wife “could potentially infringe on McCabe’s right to freedom of association, which would be protected by the First Amendment, depending on McCabe’s career status,” Colapinto said.
Another expert, Arlington, Virginia, lawyer Kimberly Berry, told Politico that McCabe won’t lose his entire pension. He will still probably be allowed to collect a pension beginning at age 57, though it would likely be smaller and unlikely to include federal health coverage.
According to Forbes and CNN, if McCabe hadn’t been fired he would have been allowed to take the pension when he turned 50 on Sunday. He also likely lost a 1.7 percent pension multiplier, and would instead get a 1 percent multiplier. CNN says the reduced and delayed pension could amount to a loss of hundreds of thousands of dollars for McCabe.
McCabe is represented by Michael Bromwich, senior counsel at Robbins Russell Englert Orseck Untereiner & Sauber, a litigation boutique that represents Fortune 500 companies, the National Law Journal reports. Bromwich previously served as the Justice Department’s inspector general.
The Fake News is beside themselves that McCabe was caught, called out and fired. How many hundreds of thousands of dollars was given to wife’s campaign by Crooked H friend, Terry M, who was also under investigation? How many lies? How many leaks? Comey knew it all, and much more!— Donald J. Trump (@realDonaldTrump) March 17, 2018
Washington Post: “Andrew McCabe was just offered a job by a congressman so he can get his full retirement. And it just might work.”
The Hill: “More Dems offer to hire McCabe”
Updated at 12:10 p.m. to include links to additional coverage. Corrected on March 23 to report that McCabe could not take his case to the Merit Systems Protection Board.