Yes, he should have been fired with no pension

It might sound a little vindictive to celebrate the firing of a career civil servant merely days before his pension rights kick in but there’s nothing vindictive at all about celebrating the firing of Andrew McCabe from the FBI. This is of course entirely and wholly political but in a good way. For there’s a very good argument that this is exactly what should happen to those members of the permanent government, that Deep State, who defy either the law or the orders of the elected government which sits above them.

Yes, this is true even if their defiance is in a good cause. The cause being just what makes their risks taken worth it of course.

Donald Trump has expressed his delight at the sacking of former FBI Deputy Director Andrew McCabe, calling it a “great day for democracy”.

Attorney General Jeff Sessions said he sacked Mr McCabe two days before his scheduled retirement date on the recommendation of FBI disciplinary officials.

But the career FBI official said his dismissal was part of the Trump administration’s “ongoing war on the FBI” and Mueller investigation.

OK, maybe ongoing war, political infighting and so on. But what, actually, was the accusation?

Mr Sessions said in a statement that investigators “concluded that Mr. McCabe had made an unauthorised disclosure to the news media and lacked candor – including under oath – on multiple occasions.”

Lacking candour under oath? What, edging right up close to perjury? We’d like to fire a law enforcement official who does that, right? Especially if they are taking part in a political war – while supposedly neutral civil servants – as they do so.

“The FBI expects every employee to adhere to the highest standards of honesty, integrity, and accountability,” Sessions said.

“As the OPR proposal stated, ‘all FBI employees know that lacking candor under oath results in dismissal and that our integrity is our brand’”.

It’s even in their employment contract. But there’s more to this. As Craig Pirrong points out:

“Les autres” in the FBI and the rest of the US intelligence and security apparatus have to know that they are accountable. Alas, the execrable, loathsome, abominable James Clapper has escaped accountability for his clear criminal conduct. Since he has escaped, all the more reason to let McCabe swing–for encouragement to others in the security state. To let those who operate in the shadows know that they are at risk if they cross the line. This is important, because there is every indication in the conduct of many of them that they believe that they can act with impunity, at no personal risk.

And thus the very Ecksian solution of firing him just before pension rights kick in – ensuring no Federal pension. The FBI running a system whereby being fired does mean that loss.

This could be, as it will, taken to be about which political cause was being supported and all that. But it’s really about who governs? And when those who don’t decide they do then, really, perhaps they should be punished? Thus the joy with which we greet McCabe having to shop for his meat in the cat food aisle in retirement. Pour encourager les autres.

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  1. I was thinking about this loss of pension in a different context and derringer if it doesn’t fall foul of natural justice in some way?

    If someone commits the crime in the first year of employment the loss of pension is negligible but in their 30th year its massive, so the two punishments aren’t equal for the same crime. In this case he was quite senior so should have been aware of the punishment so I its probably OK, but if he’d just been another plodding bureaucrat who hadn’t risen to such exalted ranks would it be different?

    Not that I have any sympathy for him.

  2. “Lacking candor under oath” is a very curious phrase. As is “edging right up close to perjury” – it’s like tax evasion – it is or it isn’t. Especially when a lawyer and career law enforcement officer is questioned under oath by another lawyer. So careful here – this still smells like personal vindictiveness rather than a principled, impartial application of the rules.

    • I think “lacking candor” is the FBI terminology for lying. The FBI’s ethical standards demand candor – not just telling the truth, but also not misleading by omission, making statements that are technically true but give the wrong impression, or making weaselly evasions. Saying “lacking candor” doesn’t necessarily mean he didn’t tell an actual untruth, it just means the FBI rules he’s been fired under demand firing for other types of dishonesty, too.

      The career FBI investigators phrased it this way in their report and recommended firing. If it had been some low-ranking nobody, there’d have been no question. He’d have been gone.

      But then, the rules are different for the elite political operators. If it had been a low-ranking nobody who stripped off the headers from classified documents so they could email them to her unsecured private email server in a friend’s bathroom, set up specifically to evade federal rules on record keeping, and then tried to wipe it when the investigators moved in, I don’t think there’s any question what would have happened to them.

      But politics, you know?

    • Remember it wasn’t Trump that sacked him; it was the Attorney General, under the recommendation of the, fiercely independent, Office of Professional Responsibility. The OPR thought that McCabe’s conduct had met the threshold to be dismissed without pension rights, and so he was dismissed. Not to do so would have been political; sacking him is upholding the independence of the OPR.

      However, you won’t hear about that in the anti-Trump mainstream media.

  3. General Flynn was sacked from the administration and eventually pled guilty to perjury for lying to the FBI. He’s just sold his house to pay his legal fees.

    The circumstances of his offense and the way it was prosecuted are pretty murky and appear to involve our old friend Strzok, his girlfriend and the judge who accepted his guilty plea, (and who also granted the FISA warrant to spy on the WH), getting together for a dinner party to discuss the case. Strzok is the agent who turned up to a meeting with Flynn without telling him it was a formal interview and the lie that Flynn pled guilty to is based on Strzok’s record of their conversation. The FBI never record interviews, they write them down afterwards., which is one of the reasons why the Feds have a 97% conviction rate. (Amongst the other reasons is their willingness to throw the book at you in order to get you to plea bargain down to a single lesser charge and to threaten to go after your family, as is reported to have happened with Flynn.)

    Oh, and by the way, it is being reported that McCabe only loses part of his pension, (which will easily be replaced by the book deal and his fees as a permanent presence on CNN and the rest in his role as Trump basher extraordinaire.)

    McCabe and the rest of the coup plotters need to face jail time or the descent of America into banana republic status will accelerate.

  4. ‘And thus the very Ecksian solution of firing him just before pension rights kick in – ensuring no Federal pension. The FBI running a system whereby being fired does mean that loss.’

    Do we know that for a fact? Everywhere I worked you became vested at a certain age, but you were always partially vested. Had I been fired 2 days before becoming fully vested, I would have received 99% of my pension, anyway.

    I assume this is the American way. Yes, the FBI could be different, but it would be different.

  5. “If someone commits the crime in the first year of employment the loss of pension is negligible but in their 30th year its massive, so the two punishments aren’t equal for the same crime”

    But isn’t this rather how one would want it to work? The higher up the ladder one gets the more the stake one has in sticking to the rules. Skin in the game.
    It’s one of the problems the UK bureaucracy has. The further up the ladder the greater the immunity.

  6. Yes, someone who perjures himself before Congress in his 30th year of service (most but not all in the FBI) has a greater penalty for not knowing better.

    In this posturing, namby-pamby government, where everyone is against funding for Planned Parenthood, Public Broadcasting, the ethanol boondoggle, and the Export-Import Bank of Boeing, but they all live on, I am delighted to learn that someone, especially Jeff “Nice Guy” Sessions, has made a decision that will actually cost someone serious money.

    McCabe may have been the ringleader of the FBI gang that conspired to deceive a judge at the Peru-style secret anonymous anti-terrorism court to issue a warrant to spy on foreigners they knew would be talking to Trump campaign and transition personnel, then unmask the names of the Americans and share them between agencies (per curious Obama eleventh-hour Executive Order).

    We need to go after the rest of the gang. But the biggest obstacle here is Sessions’ decision that he is too biased to supervise the investigation so it must be left to an Obama holdover who is biased in the other direction. And speaking of ineffective Nice Guys, Mitt Romney now wants back into government.

  7. PS – I was listening to the Pension Death Watch on conservative talk radio in Boston and New York, where the hosts and callers decided long ago that Sessions is a go-along-to-get-along Good Ole Boy. The decision came down at the same time WABC turned to its usual Friday evening fare, pre-recorded interviews with authors of history books. Again, a pleasant surprise this morning.

    • Unfortunately that may be true. He can appeal his dismissal to the Merit Systems Protection Board. The record of this Board is that it usually finds for the fired civil servant; staffed as it is by career civil servants.

      So we will end up with the big news that he was fired. A couple of years from now there will be a small announcement that McCabe was wrongly dismissed and he will get back pay with interest from the time of the firing until the date of the Board decision.

  8. Flynn was charged and ruined for a possibly inadvertent lie to the FBI. Scooter Libby was jailed for no real lie at all.

    I want to see McCabe charged. I want to see him prosecuted. I want to see him sell his house to pay for his lawyers. And I dare say I would not be unhappy if he was put in Gen Seg with a bunch of gang banging Homies.

    He fought the President illegally and the President won. Jail time beckons.