A change to the Justice Department’s legal stance in a suit related to former FBI deputy director Andrew McCabe is prompting fresh speculation about the mysterious state of the Justice Department’s effort to prosecute McCabe over alleged misstatements to investigators about his interactions with colleagues during the 2016 election.

In a brief court filing Wednesday, Justice Department attorneys said they were no longer arguing that public release of records about McCabe would interfere with an ongoing enforcement action. That claim is typically used to withhold records about ongoing investigations or prosecutions.


The move could signal that prosecutors have given up on their quest to charge McCabe, or it could simply be an effort to forestall attempts by a judge to get prosecutors to publicly reveal whether they are still trying to indict the former FBI official.

Spokespeople for the Justice Department and for McCabe declined to comment to POLITICO on the development.

McCabe, a 22-year veteran of the FBI who became the agency’s No. 2 official in 2016 and took over as acting director after President Donald Trump fired James Comey in May 2017, was fired in March 2018 for “lack of candor” with investigators examining FBI contacts with the media in 2016 about an investigation into the Clinton Foundation.

McCabe, who was two days short of eligibility for full retirement benefits when he was fired, has denied any intentional misstatements. However, prosecutors opened a criminal investigation and called witnesses before a grand jury in Washington.


In mid-September, prosecutors indicated to McCabe’s attorneys that the government planned to seek an indictment against the former senior FBI official in connection with the findings by Justice Department and FBI watchdogs that he misled them.

Defense attorneys are typically told of an expected indictment a day or two ahead of time. However, in McCabe’s case, no indictment was announced.

Press reports said jurors who sit on the Washington-based grand jury who heard testimony were in the courthouse that week, but there was no indication any indictment was returned. The silence led to speculation that the grand jury might have produced a rare “no bill,” where jurors decline to vote an indictment recommended by prosecutors.

On September 30, a federal judge overseeing a Freedom of Information Act lawsuit filed by the watchdog group Citizens for Responsibility and Ethics in Washington met privately with Justice Department attorneys and said officials needed to make a decision about how to proceed with potential charges against McCabe.


“I do think it's been a long time and this is just dragging too long,” said U.S. District Court Judge Reggie Walton. “And those who have to make these hard decisions need to do it. And if they don't, I'm going to start ordering the release of information. That's just the reality….I will not condone further delay.”

Prosecutors have the option to present more evidence against McCabe to the same grand jury or submit all the evidence to another one.

While McCabe is not a party to the FOIA suit, at the September hearing, Walton also said McCabe was entitled to some resolution.

“Mr. McCabe and his lawyers have publicly and with the Department of Justice pleaded to know the status. This is like the sword of

Damocles over his head,” said the judge, an appointee of President George W. Bush.

Walton set another hearing on the suit for this Friday and indicated he wanted an answer on McCabe’s status by then.

Another possible explanation for the Justice Department’s move is that some of the information sought by CREW was released earlier this month as government lawyers sought to dismiss a civil suit McCabe filed over his dismissal, claiming that it violated longstanding policies and was tainted by political pressure from President Donald Trump.

However, it seems unlikely the records released in McCabe’s suit encompass all the files CREW sought.

The Justice Department could continue to fight disclosure of the records on other grounds, such as invasion of privacy or disclosure of confidential law enforcement techniques.


In their court filing Wednesday, government lawyers asked the judge to withdraw his order that a prosecutor from the U.S. Attorney’s office be present at the Friday hearing to provide an update on the McCabe prosecution.

“Defendant understands that the Court expected Assistant U.S. Attorney J.P. Cooney, or another official from the U.S. Attorney’s Office, to appear and be prepared to discuss the enforcement proceeding, to facilitate the Court’s assessment of the continuing validity of Defendant’s withholding of information under Exemption 7(A),” Justice Department attorney Justin Sandberg wrote. “But, as Defendant has withdrawn its invocation of Exemption 7(A), it respectfully requests that the Court eliminate the obligation for a representative of the U.S. Attorney’s Office to appear at the hearing.”

Lawyers for CREW offered their own submission Wednesday, urging Walton to stand by his order requiring a prosecutor familiar with the McCabe case to be present at the Friday hearing.

“The government’s conduct and its months-long insistence that disclosing documents from the long-closed IG investigation would harm an ongoing investigation raise serious questions about the government’s conduct and the extent to which it may have abused court processes to advance its own interests over those of the public,” CREW lawyers Anne Weismann and Adam Rappaport wrote. “In light of these questions, the Court, the plaintiff, and the public are entitled to an explanation for DOJ’s sudden and unexplained reversal.”

Walton issued a brief order Wednesday afternoon denying, without explanation, the government’s motion to get out of having a McCabe prosecutor on hand at the upcoming hearing. He also moved that session up to Thursday afternoon.

The court submission from the government Wednesday in the politically charged McCabe issue came exactly one hour before historic hearings considering the impeachment of Trump launched on Capitol Hill.