President Trump: Don’t Replace Andrew McCabe

Yesterday, James’ Comey’s former deputy, now Acting Director of the FBI, Andrew McCabe, demonstrated that he, too, is willing to speak his mind (read: will not be bullied into quiet submission).

In sharp contrast to the claims of White House spokesperson Sarah Huckabee Sanders, who claimed on Wednesday that rank-and-file FBI employees had lost confidence in their former Director, he told the Senate Intelligence Committee that Comey “enjoyed broad support within the FBI and still does to this day.”

McCabe further rejected the assertion, also made by Sanders, that the Russian investigation was one of the “smallest things on [the FBI’s] plate,” calling it instead a “highly significant investigation.”

Given the risks that Trump fired Comey in an effort to tamp down the investigation of his campaign’s ties to Russia – and embroiled even his new Deputy Attorney General in these efforts – such independence is a reassuring breach of fresh air.  And critically important. It is important to the continuity of the Russian investigation, to the integrity and credibility of the FBI, and as a means of insulating the rank and file investigators from the not-so-subtle political pressures from the top.

Yet reports suggest that the White House is now looking for an alternative interim director to replace McCabe, rather than keeping him in place until a new Director is named and confirmed. This would be a grave mistake, for the converse of all reasons that McCabe’s current placement as interim director is so important. It would create the perception that the nation’s lead law enforcement agency is no longer to act with independence, raise even more questions about the future of the Trump-Russia probe, and send exactly the wrong message to the FBI’s rank and file.

And just in case none of this is good enough reason already, it would be a stupid move politically. Trump is already under a cloud of suspicion. I am, after all, hardly the only one to raise the possibility of obstruction of justice charges. (See, e.g.,  Dick Durbin here.) Removing not just the #1, but the #1 and #2 in charge of the Trump-Russian probe, would not be wise. The cries of “Nixonian” will become even louder.

If I were Trump’s lawyer, I would tell him to keep McCabe. For no other reason than to protect from further risk of  legal liability. . . or impeachment. . . . or both.

Image: Alex Wong/Getty 

About the Author(s)

Jennifer Daskal

Associate Professor at American University Washington College of Law Follow her on Twitter (@jendaskal).