Prosecutors Face Increased Pressure to Make Decision in McCabe Case

WASHINGTON — The Justice Department has come under increasing pressure in its investigation of the former deputy F.B.I. director Andrew G. McCabe, as a federal judge threatened to release internal department records unless prosecutors decide whether to move forward with or abandon the politically charged case.

Judge Reggie B. Walton of Federal District Court for the District of Columbia, who is presiding over a lawsuit over F.B.I. documents related to Mr. McCabe’s firing last year, said at a hearing on Monday that he would soon begin releasing them. The Justice Department has argued that the materials should stay confidential while prosecutors investigate Mr. McCabe over whether he lied to internal investigators about dealings with the news media.

“You all have got to cut and make your decision,” Mr. Walton said, according to a transcript. “It’s not a hard decision, and I think it needs to be made. If it’s not made, I’m going to start ordering the release of information because I think our society, our public, does have a right to know what’s going on.”

Mr. McCabe, long a target of President Trump’s, was the subject of a scathing report by the Justice Department inspector general’s office that faulted him for violating media policy and repeatedly misleading its investigators. They were asking about an October 2016 Wall Street Journal article about an investigation into the Clinton Foundation. Mr. McCabe, working through the F.B.I. press office, had authorized a spokesman and a bureau lawyer to speak to a reporter to rebut allegations that he had slowed the inquiry.

Mr. McCabe was fired in March 2018, hours before retirement benefits would have kicked in, and the inspector general referred his findings to federal prosecutors in Washington a month later.

Judge Walton’s stern warning came as prosecutors grappled with whether to bring charges in what is a seemingly straightforward case with a limited set of facts and witnesses that has been under investigation for 19 months.

“This matter is a high-profile matter,” Judge Walton said. He added that as long as prosecutors hold off on deciding how to proceed, they “undermine the credibility not only of the Justice Department because it’s not making these hard decisions, but also the court.”

Mr. McCabe’s lawyers have argued that the case is weak and that he is being singled out because of the president’s disdain for him. Mr. Trump has relentlessly attacked Mr. McCabe, potentially complicating any prosecution. Mr. McCabe has said the president targeted him to undermine his standing as a witness to whether he obstructed justice in the Russia inquiry.

In August, Mr. McCabe’s lawyers met with Jeffrey A. Rosen, the deputy attorney general, to make a last-ditch appeal for prosecutors to drop the case. Their pleas were rebuffed, and an indictment appeared imminent. But the grand jury hearing the case reconvened last month after weeks without meeting but did not indict Mr. McCabe, raising questions about whether prosecutors delayed a vote by jurors to avoid a rare and embarrassing setback of their declining to hand up an indictment.

Other setbacks have emerged for the government. One prosecutor on the case left the Justice Department and has said it lacked merit while another left on what seemed like the eve of a possible indictment.

A key witness in the case — Lisa Page, the former F.B.I. lawyer whom Mr. McCabe authorized to speak to the Wall Street Journal reporter — also told the grand jury that he was not motivated to lie about the episode because he was authorized to speak with reporters and thus did not violate media policy. Her sympathetic testimony to Mr. McCabe would most likely be a problem for prosecutors.

Another important witness who testified before the grand jury, Michael Kortan, the spokesman involved in the episode, could not immediately remember how the leak unfolded.

Citizens for Responsibility and Ethics in Washington, a government watchdog group, sued in July 2018 for the records related to Mr. McCabe’s dismissal. The organization is seeking access to investigators’ notes taken during Mr. Kortan’s interview, which could be exculpatory to Mr. McCabe, the group’s lawyer, Anne Weismann, argued during the hearing.

“We’re in dark times,” she told the judge, saying that growing evidence showed that Mr. Trump was abusing his powers to go after perceived enemies in the intelligence and law enforcement communities. Mr. McCabe, she said, was “swept up in that.”

The judge seemed to acknowledge her point, noting that Mr. Trump was “going after the courts, too.” He later added, “I totally appreciate what you just said and share many of the same concerns that you have expressed.”


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