Anne Weismann Anne Weismann of Citizens for Responsibility and Ethics in Washington. Photo by Diego M. Radzinschi / ALM

A federal judge on Tuesday was pressed to publicly reveal secret communications between the U.S. Justice Department and the court that could shed light on the Trump administration's controversial move to fire and criminally investigate former FBI acting director Andrew McCabe.

The watchdog group Citizens for Responsibility and Ethics in Washington asked U.S. District Judge Reggie Walton to unseal three sets of transcripts in which government lawyers spoke alone with Walton outside the presence of other lawyers. Those transcripts could shed light on the status of the probe, along with any problems prosecutors faced, in a drawn-out investigation Walton has criticized for leaving McCabe in "limbo."

Walton is presiding over a public records request that confronts the firing and criminal investigation of McCabe, an embattled career FBI official who assumed the leadership of the bureau after Trump fired James Comey in 2017.

McCabe has for months faced a criminal investigation concerning whether he lied to federal agents examining the FBI's dealings with the news media. In a report last year, released a month before McCabe's firing, the Justice Department's inspector general said the former deputy FBI director lacked candor during an internal probe into the disclosure of information to a Wall Street Journal reporter for an October 2016 article on an investigation into the Clinton Foundation.

McCabe was fired in March 2018, just days before he was set to retire with full benefits. He has since sued the Justice Department over his termination, alleging that it was part of a scheme by the Trump administration to discredit and remove law enforcement officials who would not pledge loyalty to the president. McCabe has disputed the report's findings.

Newly unsealed documents in a Freedom of Information Act case, filed Citizens for Responsibility and Ethics, or CREW, confirmed the Justice Department had opened a criminal investigation. But the status of the investigation is unclear. McCabe had earlier previously acknowledged the criminal investigation.

In September, McCabe's defense lawyers—including David Schertler of Washington's Schertler & Onorato and Michael Bromwich of Steptoe & Johnson LLP—asked federal prosecutors in Washington whether a grand jury had declined to indict the former FBI leader. The inquiry came in response to news reports that a grand jury had met to consider charges against McCabe without issuing an indictment.

The Justice Department this month backed off its claims that records in the FOIA lawsuit could not be turned over to CREW because they related to an ongoing law enforcement investigation. For months, the Justice Department had argued certain records should be withheld on those grounds, and its sudden reversal prompted Walton to question whether he had been "manipulated" into stalling the release of information to the public.

Walton ordered the unsealing of a declaration made by Stephen Lyons, a special agent in the Justice Department inspector general's office, which the government provided earlier this year to justify the continued withholding of records. Lyons said in his declaration that the release of particular records, without redactions, would potentially interfere with the ongoing investigation and risk jeopardizing any criminal proceedings that could arise out of the probe.

Anne Weismann, chief public records counsel at CREW, argued Tuesday that Walton should unseal the transcripts of closed-door communications in which government lawyers explained why the release of records would interfere with an ongoing law enforcement proceeding. The government intends to oppose the request, at least in part, that the court release three now-sealed transcripts.

"[T]here is virtually no likelihood that any legitimate interest of the government will be harmed by disclosing the contents of the ex parte discussions, which pertain to the contents of the Lyons declaration," Weismann wrote in Tuesday's filing. "Quite simply there is no government interest in secrecy to weigh against the significant public interest in disclosure."

Walton has voiced frustration with prosecutors through the public records case. At a recent hearing, Walton suggested prosecutors should not have a hard time weighing any criminal case against McCabe.

"Maybe politically, but not factually or legally," he said.

 

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