A Review of Various Actions by the Federal Bureau of Investigation and Department of Justice in Advance of the 2016 Election Oversight and Review Division 18-04 June 2018 CHAPTER THIRTEEN: WHETHER FORMER DEPUTY DIRECTOR ANDREW MCCABE SHOULD HAVE RECUSED FROM CERTAIN MATTERS

A Review of Various Actions by the Federal Bureau of Investigation and Department of Justice in Advance of the 2016 Election

Oversight and Review Division 18-04 June 2018

CHAPTER THIRTEEN:

WHETHER FORMER DEPUTY DIRECTOR ANDREW MCCABE

SHOULD HAVE RECUSED FROM CERTAIN MATTERS

Introduction

In this chapter we address whether former FBI Deputy Director Andrew

McCabe should have recuse himself from the Clinton email server and Clinton

Foundation investigations prior to November 1, 2016.223 We also address whether McCabe violated his recusal obligations after he recused himself from those investigations on November 1, 2016.224

Timeline of Key Events

Aug 10, 2014 Andrew McCabe becomes Assistant Director in Charge of the FBI Washington Field Office (WFO).

Feb 25, 2015 McCabe’s wife, Dr. Jill McCabe, receives a call from the Virginia

Lieutenant Governor’s office asking her to consider a state

senate run.

Mar 7, 2015 McCabe accompanies Dr. McCabe to Richmond and the two

meet with Governor McAuliffe to discuss her potential run for

state senate.

Mar 9-13, 2015 McCabe contacts Director Comey’s Chief of Staff and Deputy

Director Giuliano to discuss Dr. McCabe’s potential run.

Mar 11, 2015 McCabe obtains advice from FBI ethics official Patrick Kelley and FBI General Counsel Baker.

Mar 12, 2015 Dr. McCabe announces candidacy for state senate.

April 29, 2015 McCabe documents his recusal from all Virginia public corruption cases.

223 This chapter has been written to avoid reference to Law Enforcement Sensitive (LES)

information. Attached to this report at Appendix Two is a non-public LES appendix containing the

complete, unmodified version of Chapter Thirteen.

224 The OIG’s review focused on McCabe’s conflict of interest obligations. Other allegations

against McCabe arising from his wife’s 2015 campaign for state senate were not within the OIG’s

jurisdiction and therefore not within the scope of this review. Specifically, in a December 1, 2017,

letter to Deputy Attorney General Rosenstein, Senator Charles Grassley expressed concern that

McCabe may have violated the Hatch Act. See The Honorable Charles Grassley, letter to Rod

Rosenstein, Deputy Attorney General, U.S. Department of Justice, December 1, 2017. The Hatch Act

generally governs the political activity of federal employees to protect the federal workforce from

partisan political influence. The law’s restrictions on political activity are codified at 5 U.S.C. §§ 7321-

The U.S. Office of Special Counsel (OSC) has jurisdiction over potential Hatch Act violations.

431

July 10, 2015 FBI opens the Clinton email investigation.

Fall 2015 Dr. McCabe’s campaign committee (McCabe for Senate) receives

a combined total of ~ $675,000 from a Political Action

Committee controlled by McAuliffe ($467,500 in monetary

contributions) and from Virginia Democratic Party ($207,788 in

in-kind contributions). McCabe states he was not aware of

these contributions until October 2016.

Sep 6, 2015 McCabe leaves WFO and becomes Associate Deputy Director for

the FBI.

Nov 3, 2015 Dr. McCabe defeated in state senate election.

January 2016 FBI opens Clinton Foundation investigations.

Feb 1, 2016 McCabe becomes Deputy Director for the FBI.

Oct 23, 2016 The Wall Street Journal publishes article disclosing McAuliffe

contributions to Dr. McCabe’s campaign, triggering discussions

with Director Comey about whether McCabe should be recused

from Clinton-related investigations.

Nov 1, 2016 McCabe formally recuses himself from participating in Clintonrelated

investigations, but the decision is not announced

externally and only to a limited group internally.

III. Relevant Standards and Procedures

In this section we summarize the statutes, regulations, and FBI policies

relevant to the conflict of interest and recusal issues.

Financial Conflict of Interest Statute

18 U.S.C. § 208 is the criminal conflict of interest statute addressing financial

interest conflicts. It prohibits an executive branch employee from “participating

personally and substantially” in a particular matter in which the employee knows he

(or other persons whose interests are imputed to him, including the employee’s

spouse) have a disqualifying financial interest. The particular matter must also

have “a direct and predictable effect” on the financial interest. 5 C.F.R.

2635.402. Direct and predicable effect is defined by regulations to include “a

close causal link between any decision or action to be taken in the matter and any

expected effect of the matter on the financial interest.” 5 C.F.R. § 2635.402(b)(1).

However, a particular matter does not have a direct effect on a financial interest, “if

the chain of causation is attenuated or is contingent upon the occurrence of events

that are speculative or that are independent of, and unrelated to, the matter.” Id.

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Executive Branch Regulations Addressing Appearance Concerns

and Impartiality in Performing Official Duties

The Office of Government Ethics (OGE) promulgates the Standards of Ethical

Conduct for Employees of the Executive Branch (Standards of Ethical Conduct or

OGE regulations). See 5 C.F.R. Chapter XVI, Subchapter B., Part 2635. 5 C.F.R.

2635.101 identifies general principles applying to all executive branch employees.

One principle addresses appearance concerns and states that: “[e]mployees shall

endeavor to avoid any actions creating the appearance that they are violating the

law or the ethical standards set forth in this part.”225 5 C.F.R. § 2635.101(b)(14).

See also Executive Order 12674 (as modified by Executive Order 12731) on

Principles of Ethical Conduct for Government Officers and Employees, section

101(n).

Conflicts of interest for federal employees are addressed in the OGE

regulations at 5 C.F.R. §§ 2635.401 – 2635.403 and 2635.501 – 2635.503.

Section 502(a), relating to “Personal and business relationships,” provides:

Where an employee knows that a particular matter involving specific

parties is likely to have a direct and predictable effect on the financial

interest of a member of his household, or knows that a person with

whom he has a covered relationship is or represents a party to such

matter, and where the employee determines that the circumstances

would cause a reasonable person with knowledge of the relevant facts

to question his impartiality in the matter, the employee should not

participate in the matter unless he has informed the agency designee

of the appearance problem and received authorization from the agency

designee in accordance with paragraph (d) of this section.

5 C.F.R. § 2635.502(a).

Section 502(a) thus identifies two categories of circumstances creating

conflicts of interest that require recusal. The first is where an employee knows that

a “particular matter involving specific parties is likely to have a direct and

predicable effect on the financial interest of a member of his household.” Section

402(b)(1) defines “direct and predicable effect,” as described above in connection

with 18 U.S.C. § 208.

The second category of conflict requiring recusal occurs if the employee

knows that a person with whom the employee has a “covered relationship” is or

represents a party to the “particular matter.” Section 502(b) defines “covered

relationships” to include, among other things, persons who are members of the

employee’s household, persons who are relatives with whom the employee has a

225 5 C.F.R. § 2635.101(b)(8) is the general principle which states that “[e]mployees shall act

impartially and not give preferential treatment to any private organization or individual.” In this

chapter we address McCabe’s recusal obligations and do not discuss whether McCabe’s conduct

demonstrated that he acted with bias or partiality.

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“close personal relationship,” and persons with whom the employee has certain

financial relationships. 5 C.F.R. § 2635.502(b).

Where either of these two circumstances is present and the employee

determines that these circumstances “would cause a reasonable person with

knowledge of the relevant facts to question [the employee’s] impartiality in the

matter, the employee should not participate in the matter” unless he or she has

obtained authorization to do so from a designated agency ethics official. 5 C.F.R.

2635.502(a). Thus, the “reasonable person” test is the standard for determining

whether the circumstances could raise a fair question about an employee’s

impartiality thereby creating an appearance concern.226 Section 502 encourages

the employee to seek the assistance of his supervisor, an agency ethics official, or

the agency designee in making a recusal determination. 5 C.F.R.

2635.502(a)(1). Section 502 also empowers the employee’s supervisor to

request the agency designee to make a determination about whether recusal is

required. 5 C.F.R. § 2635.502(c). The agency designee may also make such a

determination on his or her own initiative. Id.

In addition to the specific circumstances described above, section 502(a)(2)

contains a catchall provision that addresses impartiality concerns in any “other

circumstances.” It states:

An employee who is concerned that circumstances other than those

specifically described in this section would raise a question regarding

his impartiality should use the process described in this section to

determine whether he should or should not participate in a particular

matter.

Section 502(a)(2) gives the employee the option to invoke the section 502

process (i.e., seeking a recusal determination or waiver from the agency designee)

for these “other circumstances.” See also 5 C.F.R. § 2635.501(a). For example,

where the unique circumstances of “a personal friendship, or a professional, social,

political or other association not specifically treated as a covered relationship” raise

an appearance question, the employee may elect to use the section 502 process.

Office of Government Ethics (OGE) 99 x 8, Memorandum to Designated Agency

Ethics Officials Regarding Recusal Obligation and Screening Arrangements, April 26,

1999 at 2.

The OGE has made clear that while employees are “encouraged” to

use the process provided by section 502 (a)(2), “[t]he election not to use

that process should not be characterized, however, as an ‘ethical lapse.’”

OGE 94 x 10(1), Letter to a Departmental Acting Secretary, March 30, 1994;

see also, OGE 01 x 8 Letter to a Designated Agency Ethics Official, August

23, 2001. Further, a note in section 502 states that “[n]othing in this section

226 The “reasonable person” standard is also the test for the general appearance principle in

section 101 referenced above. 5 C.F.R. § 2635.101(b)(14) (“Whether particular circumstances create

an appearance that the law or these standards have been violated shall be determined from the

perspective of a reasonable person with knowledge of the relevant facts.”).

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shall be construed to suggest that an employee should not participate in a

matter because of his political, religious or moral views.”

A recused employee is prohibited from participating in the matter unless

authorized by the agency designee based on a determination that the Government’s

interest “in the employee’s participation outweighs the concern that a reasonable

person may question the integrity of the agency’s programs and operations.”

5 C.F.R. § 2635.502(d). The authorization could allow for partial participation by

adjusting the employee’s duties to “reduce or eliminate the likelihood that a

reasonable person would question the employee’s impartiality.” 5 C.F.R.

2635.502(d)(6).

Department of Justice Regulation Requiring Disqualification

Arising from Personal or Political Relationships

28 C.F.R. § 45.2 is a Department of Justice regulation which addresses

recusal arising from a Department employee’s personal or political relationships.227

Section 45.2(a) states that no Department employee “shall participate in a criminal

investigation or prosecution if he has a personal or political relationship with” any

person or organization that is the subject of the investigation or prosecution or with

any person or organization that the employee “knows has a specific and substantial

interest that would be directly affected by the outcome of the investigation or

prosecution.”

Section 45.2(c)(1) defines “political relationship” to mean:

[A] close identification with an elected official, a candidate (whether or

not successful) for elective, public office, a political party, or a

campaign organization, arising from service as a principal adviser

thereto or a principal official thereof.

In an April 2017 memorandum, the FBI’s then-chief ethics official, while

acknowledging that the syntax of this definition is not “crystal clear,” wrote that

section 45.2(c)(1) appears to require that in order to have a “close identification”

with an elected official or candidate, the “employee must be or have been a

‘principal adviser’ to the official or candidate.”228

Section 45(c)(2) defines “personal relationship” in part to mean “a close and

substantial connection of the type normally viewed as likely to induce partiality.” It

presumes an employee has a personal relationship with a parent, sibling, child, or

spouse, and states that whether an employee’s relationships are “‘personal’ must

227 28 C.F.R. § 45.2 implements 28 U.S.C § 528, which states that the Attorney General shall

promulgate rules and regulations which require the disqualification of Department Employees “from

participation in a particular investigation or prosecution if such participation may result in a personal,

financial, or political conflict of interests, or the appearance thereof.”

228 Patrick W. Kelley, Deputy Designated Agency Ethics Official & Assistant Director, Office of

Integrity and Compliance, FBI, memorandum for the FBI Deputy Director, Recusal, April 11, 2017.

Kelley retired from the FBI on February 28, 2018.

435

be judged on an individual basis with due regard given to the subjective opinion of

the employee.”

Unlike other ethics provisions that contain language imputing to the

employee a relative or spouse’s conflicts of interest, section 45.2 does not have

language imputing to the Department employee a relative or spouse’s political or

personal relationships.

Section 45.2(b) requires an employee “who believes that his participation

may be prohibited by paragraph (a) of this section” to report the matter to his

supervisor. If the supervisor determines that the employee has a personal or

political relationship as described in paragraph (a), “he shall relieve the employee

from participation” unless he determines that the relationship will not render the

employee’s “service less than fully impartial and professional,” and the

“participation would not create an appearance of a conflict of interest likely to affect

the public perception of the integrity of the investigation or prosecution.”

What Constitutes “Participation” Under the Regulations

18 U.S.C. § 208 prohibits an employee from participating “personally and

substantially” in a matter in which he has a disqualifying financial interest. See also

18 U.S.C § 207(a)(1). The OGE regulations define “personal and substantial” and

states in part: “[t]o participate substantially means that the employee’s

involvement is of significance to the matter…it requires more than official

responsibility, knowledge, perfunctory involvement, or involvement on an

administrative or peripheral issue.” 5 C.F.R. § 2635.402(b)(4).

In contrast, 5 C.F.R. § 2635.502 and 28 C.F.R. § 45.2 both use the term

“participate” without qualification and neither the OGE nor DOJ regulations contain

definitions describing the type of “participation” to be avoided by recused

employees. Section 502(e) states that “[d]isqualification is accomplished by not

participating in the matter.” The OGE has provided general guidance on the scope

of an employee’s recusal obligations and stated that a proper recusal requires “that

an employee avoid any official involvement in a covered matter.” OGE 99 x 8 at 2.

The OGE has offered the following advice to ethics officials to share with employees

who “may not fully appreciate the meaning of the term ‘recuse’”:

An employee should refrain, abstain, refuse, relinquish, forebear,

forgo, hold off, keep away, give up, decline, desist, discontinue, end,

cancel, close, quit, terminate, stop, halt, cease, drop, stay away, shun,

avoid participation in the matter before him or her. In other words,

just don’t do it.

Id. at n.2.

FBI Procedures and Ethics Officials

The Department’s ethics program is administered by the Designated Agency

Ethics Official (DAEO), the Assistant Attorney General for Administration, and the

Departmental Ethics Office. See DOJ Order 1200.1, part 11, chapter 11-1, B.1, 4.

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The Deputy Designated Agency Ethics Official (Deputy DAEO) is the person to

whom the DAEO delegates the responsibility and authority for the management of

the ethics program within each Department component. Id. at B.3. Patrick W.

Kelley was the FBI’s Deputy DAEO and Assistant Director for the FBI’s Office of

Integrity and Compliance during the time period of our review.

The FBI Director’s authority as the FBI’s Agency Designee has been

delegated to the FBI’s Deputy DAEO. See James B. Comey, Director, Federal

Bureau of Investigation, memorandum for Lee J. Lofthus, Assistant Attorney

General for Administration, Department of Justice, November 12, 2013 at 2.

Consequently, for FBI employees—including the Deputy Director of the FBI—the

FBI’s Deputy DAEO may make ethics determinations on his own, without approval

or consultation with the Department’s DAEO, the Departmental Ethics Office, or the

FBI Director.229

Within the FBI, all Chief Division Counsel (CDC) and other employees

designated by the Deputy DAEO may act as “ethics counselors.” FBI Ethics and

Integrity Program Policy Guide, 2.2.3(a). Ethics counselors’ duties include

providing advice regarding the standards of ethical conduct to employees in their

offices, channeling questions requiring formal ethics determinations to the Deputy

DAEO and forwarding any written advice to the Deputy DAEO. Id at 2.2.3(b).

Employees with ethics questions are directed to contact the ethics counselors

designated in their respective offices. Id. at 2.3(b). FBI policy states that

disciplinary action is generally not taken against an employee who engaged in

conduct relying in good faith on the advice of an ethics counselor. Id. at 2.3(c)

Factual Findings
Background Facts
Andrew McCabe

McCabe began his career with the FBI in 1996 as a Special Agent in the New

York Field Office. McCabe served in a variety of leadership positions in the FBI

during his career, including as Assistant Director for the Counterterrorism Division

and Executive Assistant Director for the National Security Branch. He served as

Assistant Director in Charge (ADIC) of the FBI’s Washington Field Office (WFO) from

August 2014 until September 2015. On September 6, 2015, McCabe became

Associate Deputy Director of the FBI, responsible for the FBI’s non-operational

divisions. On February 1, 2016, McCabe became Deputy Director of the FBI,

overseeing all FBI domestic and international investigative and intelligence

activities. McCabe became Acting Director of the FBI on May 9, 2017, when FBI

Director James Comey was fired. McCabe served as Acting Director until August 2,

2017, when Christopher Wray became the new FBI Director. At that time, McCabe

229 Ethics determinations for the Director are made by the Deputy Attorney General. See DOJ

Order 1200.1 at part 11, chapter 11-1, C2.1.

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resumed his duties as Deputy Director, a position he held until January 29, 2018, at

which point he went on annual leave but remained an FBI employee. In February

2018, the OIG issued a misconduct report regarding McCabe to the FBI.230 On

March 16, 2018, Attorney General Sessions terminated McCabe’s employment with

the FBI.

FBI Clinton Investigations

The FBI opened the Clinton server email investigation when McCabe was the

ADIC of WFO and opened the Clinton Foundation investigations after McCabe

became FBI Associate Director.

Dr. McCabe Meets Governor McAuliffe in February 2014

In February 2014, then-Governor Terry McAuliffe visited the hospital where

Dr. Jill McCabe practiced to advocate for expansion of Medicaid coverage in Virginia.

McCabe told us that, by coincidence, his wife, Dr. McCabe, was working at the

hospital that day and was present at the time of Governor McAuliffe’s visit. McCabe

told the OIG that Dr. McCabe had not previously met Governor McAuliffe until his

visit to her hospital that day.

Recruitment to Run for Virginia State Senate in February

2015

A year later, on February 25, 2015, Dr. McCabe received a phone call from

an aide to then-Virginia Lieutenant Governor Ralph Northam. That day, Dr. McCabe

emailed her husband and said the aide had asked if she would consider running for

Virginia State Senate against the incumbent in District 13. McCabe told us that Dr.

McCabe had not previously met Lieutenant Governor Northam.

McCabe said that Dr. McCabe was subsequently invited to, and agreed to

attend, a Democratic caucus meeting in Richmond on March 7, 2015, which would

provide an opportunity for her to discuss a potential run with other elected officials.

According to McCabe, a Virginia State Senator told Dr. McCabe that Governor

McAuliffe was scheduled to speak at the meeting and they might have an

opportunity to speak to him as well, although it was “not a guarantee” that they

would talk with the Governor.

The McCabes’ Meeting with Governor McAuliffe in March

2015

McCabe accompanied Dr. McCabe on her trip to Richmond on March 7.

230 See U.S. Department of Justice (DOJ) Office of the Inspector General (OIG), A Report of

Investigation of Certain Allegations Relating to Former FBI Deputy Director Andrew McCabe, Oversight

and Review Division (February 2018).

438

Conversation with Richmond Special Agent in

Charge (SAC) on March 6

McCabe said the day before the March 7 trip he spoke to the Special Agent in

Charge of the FBI’s Richmond Field Division (Richmond-SAC), to let him know he

would be in Richmond with Dr. McCabe because she was considering a state senate

run and they were going to a meeting “to talk with more people about this

prospect.” McCabe also said he talked to Richmond-SAC to get his impressions on

Richmond and the state legislature and that Richmond-SAC “was very positive

about it.” McCabe told the OIG that Richmond-SAC was the first FBI employee with

whom he discussed the March 7 trip.

Richmond-SAC told us that McCabe called to tell him he would be coming to

Richmond with his wife to meet with the Governor as she was considering a run for

office. Richmond-SAC said McCabe asked if he would “get in the way of anything”

by going to meet with state legislators. Richmond-SAC said he did not have any

investigative concerns with him meeting the Governor or state legislators, although

he warned McCabe that if McCabe met with Governor McAuliffe, he would “be

tethered to the Clintons” forever, and this could impact McCabe’s future in

government.

The McCabes’ Meeting with McAuliffe on March 7

McCabe told us that on March 7 he and Dr. McCabe drove to Richmond for

the Democratic caucus meeting where they met with a Virginia State Senator.

According to McCabe, the State Senator told them “there’s been a change of plans”

and that Governor McAuliffe wanted to speak to Dr. McCabe at the Governor’s

mansion. The three then drove to the mansion in the McCabes’ car.

McCabe said they met with Governor McAuliffe at the mansion for 30 to 45

minutes. He said the Governor made it very clear that his number one priority was

expanding Medicaid, and that “they” (from the context, apparently referring to the

Virginia Democratic Party and himself) planned to target a few state senate seats.

McCabe said the Governor explained why they thought Dr. McCabe would be a good

candidate and that he said she could expect to spend a lot of time fundraising.

According to McCabe, Governor McAuliffe said that he and the Democratic Party

would support Dr. McCabe’s candidacy. However, McCabe told us to the best of his

recollection they did not discuss financial support nor did they say they would

support Dr. McCabe “in the form of financial backing.” McCabe also said there was

no mention of the Governor’s Political Action Committee (PAC), the Clintons, or

Clintons’ associates providing financial assistance. McCabe said that Dr. McCabe

asked McAuliffe questions about the nature, demands, and logistics of the

legislative session and the amount of time she would have to spend in Richmond

because she “had no intention ever of leaving her medical profession.” McCabe

said the Governor asked him about his occupation and McCabe told him he worked

for the FBI but that they did not discuss McCabe’s work or any FBI business.

According to McCabe, after the meeting at the Governor’s mansion, he and

Dr. McCabe rode with the Governor to a hotel, where the Governor delivered his

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speech. McCabe said they were at the hotel for 20 to 25 minutes, standing in the

audience listening to the speech and returned with the Governor to the mansion

where the McCabes had left their car. McCabe said they stayed for another 20 to

30 minutes at the mansion for an unrelated event before returning home in their

car.231 McCabe told us the March 7 meeting was the first and only time he had ever

met McAuliffe.

Follow-up Conversation with Richmond SAC on

March 8

Richmond-SAC told us that McCabe called him probably the following day

(March 8) and described the meeting with Governor McAuliffe. According to

Richmond-SAC, McCabe said it was a “surreal meeting” with the Governor at the

mansion. Richmond-SAC said McCabe told him that from the mansion they were

whisked away to a function at a hotel and that the Governor, without Dr. McCabe

having committed to a run, introduced her as someone that they believed could

unseat the incumbent senator in District 13. Richmond-SAC said McCabe told him

that he would address any ethics issues.

Dr. McCabe’s Campaign

Dr. McCabe announced her run for the Virginia State Senate on March 12,

In FBI responses to Congressional inquiries in December 2016, the FBI

stated that, to the best of McCabe’s recollection, his role in Dr. McCabe’s campaign

“included providing transportation to his spouse in their personal vehicle on two

occasions to public events; attending one public debate as a spectator; and

appearing in a family photo which was used in a campaign mailer.”232

Dr. McCabe’s campaign committee, McCabe for Senate, received substantial

monetary contributions in 2015 from Common Good VA, a PAC controlled by then-

Governor McAuliffe, as well as in-kind contributions from the Virginia Democratic

Party. According to state campaign finance records, Common Good VA donated a

total of $467,500 to McCabe for Senate, the vast majority of which was contributed

in October 2015. The Virginia Democratic Party provided a total of $207,788 in the

form of campaign mail production in September and October 2015. The combined

total of $675,288 from the Governor’s PAC and the party represents approximately

40 percent of the total contributions raised by Dr. McCabe for her state senate

campaign during the 2015 election cycle, according to the records.

On June 26, 2015, Hillary Clinton was the featured speaker at a fundraiser in

Fairfax, Virginia hosted by the Virginia Democratic Party and attended by Governor

McAuliffe. News accounts at the time indicated that the party raised more than

231 McCabe said he did not remember what the unrelated event was about.

232 The FBI also stated in the letter that McCabe’s campaign activities were permissible under

the Hatch Act. We discuss the FBI’s Congressional responses in further detail below.

440

$1,000,000 at the fundraiser.233 McCabe told us he was not aware of the June

2015 fundraiser until the October 2016 news accounts and that neither he nor his

wife attended the event.234

McCabe told us that during his wife’s campaign he was generally unaware of

the nature and source of donations to her campaign, including the contributions

from Governor McAuliffe’s PAC and the Virginia Democratic Party. According to

McCabe, he learned of these details for the first time from the October 23, 2016,

Wall Street Journal article, discussed below. He told us he was not aware of the

Clintons or anyone on their behalf ever contributing to Dr. McCabe’s campaign.

McCabe Discusses Wife’s Candidacy with FBI Officials, Seeks

Ethics Advice, and Recuses from Various FBI Investigations

Meeting with Comey’s Chief of Staff; Extent of Director

Comey’s Knowledge or Approval

McCabe said that the week following the March 7 meeting with Governor

McAuliffe, he spoke to Chuck Rosenberg, Director Comey’s then-Chief of Staff. He

said he told Rosenberg that his wife was considering a state senate run and that

they had traveled to Richmond and met with Governor McAuliffe. McCabe said they

had a “fulsome discussion about everything that was involved,” and that he

described the information they had gathered, although he could not recall whether

he flagged for Rosenberg the fact that his wife’s campaign could receive financial

support from the Democratic Party or other sources influenced by McAuliffe.

McCabe said he told Rosenberg that his wife would not run if the Director had “any

concerns about it reflecting negatively” on the FBI or McCabe. McCabe said that

Rosenberg called him back a few hours later and said he had spoken to the Director

“and he’s totally comfortable with it.” McCabe told us the ethics issues were

foremost on his mind and that he believed he talked to Rosenberg about the efforts

he (McCabe) would take with the FBI’s chief ethics official, Patrick Kelley, to

address conflict of interest and recusal issues. McCabe said he believed that the

Director’s approval would have been with the understanding that McCabe would

address all conflict and recusal issues as required.

Rosenberg told us that he recollected one brief in-person conversation in his

office with McCabe at the time his wife was considering a run for the state senate.

Rosenberg said that McCabe told him that his wife was considering a run and asked

whether Rosenberg thought that would be problematic. Rosenberg said he told

233 See Jim Nolan, Clinton Rouses Virginia Democrats at Party Fundraiser at GMU, RICHMOND

TIMES-DISPATCH, Jun. 27, 2015, 2015 WLNR 19664828; Patrick Wilson, Clinton Makes Her First

Campaign Appearance in Virginia, THE VIRGINIAN-PILOT, Jun. 27, 2015, 2015 WLNR 18860380; Rachel

Weiner, At George Mason Arena, Clinton Goes on the Attack, WASH. POST, Jun. 28, 2015, 2015 WLNR

18937709.

234 Clinton also appeared with Governor McAuliffe at a campaign rally in Alexandria, Virginia

on October 23, 2015. Laura Vozzella, Clinton Stirs Up Crowd in Alexandria, Va., at Afternoon Rally,

WASH. POST, Oct. 23, 2015, https://www.washingtonpost.com/news/postpolitics/

wp/2015/10/23/clinton-stirs-up-crowd-in-alexandria-va-at-afternoon-rally (accessed March

27, 2018). McCabe also told us that neither he nor his wife attended this event.

441

McCabe he did not believe there would be any issues with it, but that McCabe

should talk to Kelley. He told us he probably also said to McCabe that he would

think about it further and let McCabe know if something ended up concerning him

about the situation. Rosenberg said he told McCabe that his wife was a private

citizen and so long as her campaign does not interfere with his FBI work, he did not

see why there would be an issue. Rosenberg said he did not recall a subsequent

conversation with Director Comey about this issue, but he believed McCabe’s

recollection that Rosenberg called McCabe back and said the Director had no issue

with it was correct because that sounded like what he would have done.

Rosenberg said the conversation with McCabe was at “a fairly abstract level”

and he assumed that that the ethics questions would be addressed with Kelley.

Rosenberg said he told McCabe as long as “he was careful about recusals” and

talked to Kelley it seemed okay to him.

Comey told us he did not recall Rosenberg having asked him whether he had

any concerns with a potential run for office by ADIC McCabe’s wife at the time she

was considering a run. Comey said he believes he learned for the first time that Dr.

McCabe had run for office in a causal conversation with her at an event in July 2016

(about 8 months after she lost the election), and that he recalled being surprised

about that fact. Comey told us that assuming McCabe’s recollection was accurate,

then it is likely that Rosenberg described the issue in passing to him and said he

had “checked it out and it’s all good” and Comey said “ok, no sweat.”

Conversation with Deputy Director Giuliano

McCabe told us he also spoke about his wife’s potential run with his direct

supervisor, then-Deputy Director Mark Giuliano, on March 9, the Monday after their

visit to Richmond. McCabe said he described the “whole situation” to Giuliano in a

“robust conversation” in which he described why his wife was interested in a

possible run and the “sensitivities” of her run relative to his position, and that he

identified WFO’s public corruption program. He said Giuliano responded by

directing him to talk to Kelley to identify a “clear path forward” that avoided any

Hatch Act or recusal problems. McCabe said Giuliano did not express any

reservations and that Giuliano said “…good for her…she’s getting involved and

trying to do the right thing.”

By contrast, Giuliano told us that he advised McCabe, when McCabe told him

that his wife was planning to run, that it was a “bad idea.” According to Giuliano,

McCabe responded by saying, “she’s supported me for all these years; I need to

support her; what do I need to do?” Giuliano said he told McCabe to consult Kelley

and FBI attorneys, and that he believes McCabe ultimately “dotted every ‘I’ and

crossed every ‘T’ that he needed to” on the issue. Giuliano also told us that he

ensured that McCabe was recused from appropriate WFO investigations.

Meeting with Acting Chief Division Counsel on March 10

McCabe and WFO’s Acting Chief Division Counsel (A-CDC), met on March 10,

2015, the day before a meeting McCabe scheduled with Kelley. McCabe said he

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had an in-depth conversation with A-CDC when they met and that he asked her to

attend the meeting with Kelley.

A-CDC confirmed that she and McCabe had a conversation on March 10 in

which McCabe described to her many details, including that he and his wife had met

that weekend with McAuliffe at the governor’s mansion. A-CDC told us, and her

contemporaneous notes corroborate, that McCabe identified public corruption

investigations and other areas of potential conflicts. She said that he wanted her to

identify the conflict parameters he would work under if his wife decided to run. She

responded by suggesting a “taint team” review process to identify potential conflict

cases. A-CDC said that McCabe was also very concerned with telling WFO

employees about his wife’s run for fear that they would feel pressured to vote for

her. A-CDC said that McCabe told her that he had already notified the Director and

the Deputy Director.

Meeting with Kelley and Baker on March 11

McCabe met with Kelley at his office at FBI Headquarters on March 11, 2015.

The meeting was also attended by A-CDC and FBI General Counsel James Baker,

who joined halfway through the meeting. According to McCabe, Kelley addressed

two areas in their discussions: the Hatch Act restrictions on McCabe’s activities

during the campaign, and conflict of interest and other issues to consider in the

event Dr. McCabe won her race. They did not discuss how to address donations to

Dr. McCabe’s campaign or the possibility that they could create an appearance of a

conflict of interest if made by individuals who may be under investigation by the

FBI, or closely affiliated with individuals under investigation by the FBI. McCabe

said that they also discussed a process in which ongoing and future cases would be

identified for potential recusal, with A-CDC serving as a “filter” of cases and the

WFO’s Special Agents in Charge (SACs) tasked with bringing potential conflict cases

to A-CDC for a recusal decision. McCabe said that in the meeting they “hammered

out the details of how they would do this collaboratively” and that Kelley was

satisfied that such a process was “an abundantly cautious way to approach the

issue.” McCabe said that they had minimal discussion regarding considerations in

the event Dr. McCabe won, but that Kelley said a win by her might trigger other

recusal issues and that they would “cross that bridge” when they got to it.

According to McCabe, the filtering arrangement they discussed was to take

effect immediately. McCabe told us that in the March 11 meeting it was his “strong

belief” that his wife would run because the “all-clear report” from Rosenberg was

the “last hurdle” prior to her decision to run. Dr. McCabe announced her run for the

state senate the next day, March 12, 2015.

According to A-CDC, during the March 11 meeting Kelley and Baker were

concerned with potential Hatch Act violations and said they did not think there

would be case conflict of interest issues unless Dr. McCabe won her election. ACDC

told us that McCabe said they should nonetheless proceed as if there are

conflicts of interest.

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Kelley told us that Hatch Act considerations were the focus of most of the

March 11 meeting. Kelley said that once the Hatch Act questions were resolved

they discussed what to do with WFO investigations and that McCabe, A-CDC, or

both said they had put measures in place to screen investigations for conflicts.

Kelley’s notes of the March 11 meeting are contained in an Ethics Advice Tracker,

an OIC electronic form used to memorialize advice provided. The Tracker stated

that in the meeting they “reviewed disqualification/recusal requirements” and that

McCabe had “already put in place filtering arrangements within his office.” A-CDC

said that they did not memorialize a filter process or issue written instructions

immediately, but that they put in place a “stopgap measure” of funneling all public

corruption matters through the Criminal Division SAC, Acting SAC, or someone from

the CDC’s office to assess potential conflicts until they had implemented a formal

process.

McCabe told us that after the March 11 meeting, he expected A-CDC to

document the recusal, speak to the Acting SAC about the filtering process, and

work with the Acting SAC to list any cases from which he would be recused.

McCabe said that he did not necessarily expect to hear about the specific cases that

he had been recused from. McCabe told us that at a regularly scheduled meeting of

the WFO SACs, the same week as the March 11 meeting, he informed the SACs of

his wife’s decision to run for state senate and of the filtering arrangement that they

had put in place for identifying potential conflict cases.

McCabe Recusal EC Issued on April 29

The A-CDC documented McCabe’s recusals in an Electronic Communication

(EC) dated April 29, 2015, which was approved by McCabe.235 The EC was sent to

all of the WFO’s SACs and began by referencing Dr. McCabe’s run for state senate

and stating that prior to her announcement, McCabe had consulted FBI officials “to

identify limitations on his participation in her campaign and to identify areas where

Dr. McCabe’s campaign may present potential conflicts of interest.” It then

referenced the March 11 meeting and stated that they had “also addressed with AD

Kelley and GC Baker the potential for conflicts of interest.” The EC stated that ACDC

and the Acting SAC of the Criminal Division (A-SAC), in which the public

corruption squads were located, had “identified several areas” where McCabe’s

“dissociation would be appropriate,” including:

[A]ll public corruption investigations arising out of or otherwise

connected to the Commonwealth of Virginia present potential conflicts,

as Dr. McCabe is running for state office and is supported by the

235 A-CDC told us she drafted the EC on her own and did not coordinate the writing of the EC

with Kelley or any others in OIC or OGC. A-CDC said McCabe was the approving official on the EC

because he was her direct supervisor. When we asked Kelley whether McCabe’s supervisor or some

other official should have approved the EC given that its subject matter was about his recusal, he said

he believed it was “fine” for McCabe to approve it and make a record of the recusal in the system.

Kelley provided two reasons. First, he said the EC work flow process requires a supervisor to approve

its creation and McCabe is A-CDC’s supervisor. Second, he said that substantively the EC does not so

much reflect on the decision to recuse as it describes the administrative measures that would be taken to implement the recusal protocols.

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Governor of Virginia. Therefore, out of an abundance of caution, the

ADIC will be excluded from any involvement in all such cases.

The April 29 EC then stated that supervising case agents in the WFO’s Criminal

Division had conducted “an initial review” of pending investigations to identify cases

that present a potential conflict of interest, that these cases were identified to ACDC

and would be included in the matters in which McCabe “may take no part,

either by being briefed or in the decision-making process.”

The EC next identified a screening protocol for future or other ongoing cases

requiring the CDC to review any investigations that may present “an actual or

perceived conflict of interest” and make the recusal determination. The EC

concluded by stating: “This protocol will be reassessed and adjusted as necessary

and at the conclusion of Dr. McCabe’s campaign in November, 2015.”

A-CDC told us she did not recall why she did not document the recusal until

April 29 and that it was “always the plan” to memorialize the recusal in an EC.

No Reassessment of Conflict/Recusal when McCabe becomes

ADD or after Dr. McCabe Loses Election

McCabe left the WFO and became the FBI’s Associate Deputy Director (ADD)

in September 2015, while his wife’s campaign was ongoing. The ADD primarily has

administrative responsibilities rather than operational ones.

When we asked McCabe if he had any conversations with anyone about

whether the April 29 EC and its provisions traveled with him to his new position as

ADD, he said he did not recall having any such conversations.

Dr. McCabe lost her race for the state senate on November 3, 2015. As

noted above, the April 29 EC stated that the recusal protocol would “be reassessed

and adjusted … at the conclusion of Dr. McCabe’s campaign in November 2015.”

When we asked McCabe about the language related to reassessment, he told us no

one approached him at the end of his wife’s campaign to discuss the issue with him.

Participation in Clinton Email and Clinton Foundation

Investigations

McCabe Not Recused as ADIC, ADD, or DD

As described in this report, until he recused himself from the Clinton email

and Clinton Foundation investigations on November 1, 2016, McCabe had an active

role in the supervision of the Clinton email investigation after he became the

Deputy Director in February 2016. He also had oversight of the Clinton Foundation

investigations when he became Deputy Director. When McCabe served as ADD, he

did not have supervision over the Clinton email investigation, but he was

occasionally present at meetings where the matter was discussed, according to

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McCabe and an FBI response to Congressional inquiries.236 In July 2015, when the

Clinton email investigation was opened, McCabe was serving as the ADIC in the

WFO. He told us he had no recollection of participating in any discussions about the

opening of the case and only learned after the fact that the WFO had provided

personnel to the Clinton email investigation team.

Recusal Concerns Related to Clintons Raised in May 2015

when McCabe is ADIC

McCabe said that he never heard of any concerns that his wife’s run for office

presented a conflict for him in Clinton matters until October 2016, as detailed

below. He also told us that until that time, he did not consider addressing a

potential Clinton conflict because neither he nor his wife had any connection to

Hillary Clinton, his wife’s campaign received no support from her, and whatever

relationship Hillary Clinton had to Governor McAuliffe did not appear to McCabe to

be grounds for a conflict. We found one instance prior to October 2016 in which

concerns were raised about a potential conflict for McCabe in Clinton-related

matters, although we found no evidence that these concerns were brought to

McCabe’s attention. As described below, these concerns were raised by WFO

personnel in May 2015, shortly after the April 29 EC was issued.

Complaint Regarding Clinton

On May 4, 2015, a private attorney emailed Director Comey to request that

the FBI open a public corruption investigation into Hillary Clinton, citing public

allegations related to the Clinton Foundation and her use of a private email server

while she was Secretary of State. Comey forwarded the complaint to Deputy

Director Giuliano, who in turn forwarded it the next day to McCabe, stating:

“[p]rovided to WFO for whatever action you deem appropriate.”

On May 5, 2015, McCabe, who was out of the country on vacation, forwarded

the email to A-SAC and directed her to have the complaint reviewed and to contact

the private attorney and “conduct a standard assessment of these allegations.”

McCabe copied Giuliano on this email. A few hours later, McCabe sent a follow up

email to A-SAC stating, “To be clear, we are info gathering at this point. Please do

not open a case or assessment until we have the chance to discuss further.” A-SAC

responded by stating she understood and added that they had “already discussed

the issue in coordination with [the Department’s Public Integrity Section] and [FBI

Headquarters] as this is not the first complaint on this matter. We are following

established protocol and guidelines for these types of complaints.” McCabe

responded to A-SAC, “Great. Thanks.” He also forwarded to Chuck Rosenberg the

236 McCabe told us that when he was ADD and Deputy Director Giuliano was absent, McCabe

filled in for him at meetings, although McCabe said he did not recollect doing so at any meetings

related to the Clinton email investigation. Giuliano also told us that for a period of about two weeks

before he departed the FBI and McCabe became the Deputy Director, McCabe shadowed Giuliano an

he coached McCabe as he took over his new position

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first email he sent to A-SAC and described to Rosenberg his subsequent instructions

to A-SAC to hold off on opening a case or assessment.

Rosenberg told us he vaguely recalled the email thread but he did not recall

McCabe’s email to him or his response to McCabe, which was “[u]nderstood…

[e]njoy your vacation”. He said he does not recall the email thread prompting any

concerns at headquarters about McCabe working on Clinton matters and that he

would not have made a connection with a Clinton matter and Dr. McCabe and

Governor McAuliffe.

Supervising Case Agent and A-SAC Raise Concerns

About McCabe Participating in Decisions Related to

Clinton

A-SAC forwarded the email thread to a supervising case agent in the Criminal

Division the same day who replied “ADIC should recuse himself from this matter in

my opinion.” The supervising case agent told us he was concerned because, among

other things, he knew “the Clintons and McAuliffe are hard to separate,” and that

McAuliffe ran her 2008 campaign for President. He also described his concerns as

being protective of McCabe’s interests by anticipating how any participation by him

on a Clinton matter would play out in the press since “the ADIC’s wife has benefited

from her relationship to McAuliffe.”

A-SAC told us that her concern on the nature of a potential Clinton conflict

“was overall [public corruption], and Clinton specifically because of just the broader

relationship between McAuliffe and Clinton.” A-SAC said she spoke to A-CDC who

reached out to Kelley. A-SAC said she also addressed her concerns with another

SAC in WFO and the then-Chief of the Public Corruption Section of CID (PCS-Chief).

PCS-Chief told us he recalls speaking to A-SAC about concerns she had although he

did not recall the specifics of those concerns or the identity of the matter. PCSChief

told us he passed along A-SAC’s concerns to one of his superiors. A-SAC said

she did not know whether PCS-Chief or anyone else prompted McCabe in the May 5

time period about a potential Clinton conflict.

A-CDC and Kelley’s Communications and Nonrecusal

Decision

On May 5, A-CDC emailed Kelley and stated:

I have an issue I would like to run by you regarding ADIC McCabe’s

potential conflicts of interest and his wife’s campaign. Should be fairly

quick, but I would appreciate your opinion on how we are handling a

particular matter.

A-CDC’s email to Kelley did not identify the subject of the potential conflict of

interest. Kelley and A-CDC spoke by phone the following morning, May 6, which

Kelley documented in an Ethics Advice Tracker dated May 7, 2015. In the Tracker,

Kelley summarized the advice he provided to A-CDC as follows:

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Q re necessity of recusal of her ADIC. Relates to ADIC’s spouse

running for partisan office which we have discussed and worked out

recusal arrangements, etc. This matter concerns a separate

investigation where there may be a relationship between certain

persons. Advised that relationship in the investigations was not

enough to warrant recusal. Details too sensitive to be included here.

A-CDC told us she did not remember why she reached out to Kelley and did not

recall discussing with anyone a potential McCabe conflict with Clinton-related

matters. Likewise, Kelley told us that he did not recall his conversation with A-CDC

or whether the advice memorialized in the Tracker related to a potential conflict

regarding Clinton. (The Tracker did not reference Clinton or otherwise identify the

subject of the potential conflict of interest.)

Kelley said that the first time he remembers hearing about a recusal question

regarding Clinton-matters was in October 2016, as discussed below. Kelley also

told us that in the May 2015 time frame he would have said there is no need for

McCabe to recuse from Clinton-matters on the basis of the relationship between

Governor McAuliffe and Clinton because their relationship is tangential: “[T]he

question is, are McAuliffe’s relationships to Clinton imputed to Ms. McCabe. And

frankly, I think that’s a bridge too far. I can’t see that we should impute all of

McAuliffe’s relationships to McCabe.”

We found no evidence that McCabe was ever made aware of the concerns

raised by A-CDC, A-SAC, or the supervising case agent. We also found no evidence

that Kelley consulted with or questioned McCabe, who was out of the country on

vacation, regarding A-CDC’s concerns before reaching his conclusions and providing

the advice to A-CDC on May 7.

Clinton Email and Clinton Foundation Investigations Recusals
October 23, 2016 Wall Street Journal Article

On October 23, 2016, the Wall Street Journal (WSJ) published online an

article stating that a political-action committee (PAC) run by Virginia Governor

McAuliffe and the Virginia Democratic Party (over which the article reported

McAuliffe “exerts considerable control”) collectively donated nearly $675,000 to the

2015 unsuccessful state senate campaign of the wife of Andrew McCabe.237 The

article described McAuliffe as “an influential Democrat with long-standing ties to Bill

and Hillary Clinton” and noted that McCabe was an FBI official “who later helped

oversee the investigation into Mrs. Clinton’s email use.” The article contained an

official FBI statement that McCabe “played no role” in his wife’s 2015 state senate

campaign and was promoted to FBI Deputy Director months after his wife’s defeat

237 See Devlin Barrett, Clinton Ally Aided Campaign of FBI Official’s Wife, WALL ST. J, Oct. 23,

2016, https://www.wsj.com/articles/clinton-ally-aids-campaign-of-fbi-officials-wife-1477266114

(accessed June 11, 2018). A print version of the article was published in the WSJ on Monday, October 24, 2016.

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“where,…he assumed for the first time, an oversight role in the investigation into

Secretary Clinton’s emails.”238 According to the article, FBI officials stated that

McCabe’s supervision of the Clinton email investigation in 2016 did not present a

conflict or ethics issues because his wife’s campaign was over by then. The article

went on to note that when the Clinton email investigation was launched in July

2015, Mr. McCabe was “running the FBI’s Washington, D.C., field office, which

provided personnel and resources to the Clinton email probe.”

Among other things, the article stated that McAuliffe could recall having met

only once with McCabe, on March 7, 2015, when he and other state Democrats met

with the couple to urge Dr. McCabe to run. It stated that after the March 7

meeting, McCabe sought ethics advice from the FBI “and followed it, avoiding

involvement with public corruption cases in Virginia, and avoiding any campaign

activities or events.”

Internal Deliberations and Recusals from Clinton Email

and Clinton Foundation Investigations

Immediately following online publication of the October 23 WSJ article, there

was substantial public discussion as to whether McCabe’s oversight of the Clinton

email investigation had been appropriate in light of the information in the article.

In the week that followed the article, discussions ensued within the FBI over

whether McCabe should recuse from Clinton-related matters. These discussions

took on additional significance on October 27, when Comey was briefed by the FBI

Clinton email investigation team regarding the Weiner laptop issue.

Comey and Baker Responses to Article

Comey told us he was “frustrated” that he had not known about the facts

raised in the October 23 WSJ article earlier and that he had a conversation with

McCabe about this. Had he known them earlier, Comey said he believed it “highly

likely as a prudential matter” that he would have had someone else take on

McCabe’s role in the Clinton email investigation, even if presented with an opinion

from Kelley finding no requirement for recusal under the ethics rules. Comey said

although he did not believe there was an actual conflict, “because of the nature of

the [Clinton email] matter” he would not have permitted McCabe to participate as it

would have been “used to undercut the credibility of the institution.” He said, “I

don’t buy this. I think it’s crap, but it brings a vector of attack to this institution

238 The “played no role” reference in the FBI statement was derived from information provided

by McCabe and was approved in advance by McCabe. Soon after publication of the October 23 WSJ

article, the “played no role” statement came under public criticism. Subsequently, in its December 14

letter to Senator Grassley (described below) relating to alleged conflict of interest issues involving

McCabe, the FBI removed the “played no role” language from a draft of the letter and instead stated

in its final letter: “To the best of his recollection, Mr. McCabe’s only activities related in any way to the

campaign included providing transportation to his spouse in their personal vehicle on two occasions to

public events; attending one public debate as a spectator; and appearing in a family photo which was

used in a campaign mailer, all of which are permissible under the Hatch Act.”

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and why would I open a vector of attack to this institution, its credibility is its

bedrock, when I don’t need to.”

Comey said that while as a lawyer he could see the alleged conflict was a

“triple bank shot,” a few days after the October 23 WSJ article the necessity of

seeking a search warrant on the Weiner laptop was a “mushroom cloud” making

“much more significant” the question of whether to notify Congress. He said that

given these elevated stakes he did not need the “baggage” of an alleged conflict for

McCabe brought into the decisions that would be “heavily scrutinized” and he did

not have time to “get a legal opinion” or even for “thoughtful analysis” on whether

McCabe should participate in the decisions. He said there was enough in the news

articles to counsel against McCabe’s involvement. He said that while initially he

viewed the conflict allegations as “a PR thing” that needed to be managed, “it

became hugely significant to me once [the Clinton email investigation] awoke from

the dead.” Comey said he told McCabe, “I don’t need you on this because I don’t

see it as that close a call.”239

Baker told us that in the wake of the October 23 WSJ article, he and Comey

had one-on-one conversations in which they discussed the issues it raised. Baker

said that he believes he and Comey first learned from the October 23 WSJ article

that Dr. McCabe’s campaign received large contributions attributed to McAuliffe. He

said he and Comey concluded that McCabe should recuse himself from the Clinton

email investigation “out of an abundance of caution.” Baker said that they agreed

that it would be best if McCabe recused himself rather than being recused by

Comey and that Comey instructed Baker to attempt to persuade McCabe to do so.

McCabe Excluded from Weiner Laptop Meeting on

October 27

As described above in Chapter Nine, on October 27 at 10:00 a.m., Comey

held a meeting with the Clinton email investigation team to discuss obtaining a

search warrant for a set of Clinton-related emails the FBI had discovered on a

laptop belonging to Anthony Weiner, and taking additional steps in the Clinton

email investigation. Lisa Page, McCabe’s special counsel, attended the meeting.

McCabe was out of town, but joined the meeting via conference call. After the

meeting began, Baker suggested, and Comey agreed, that McCabe should leave the

call. Comey told us that he asked McCabe to drop off the call, and McCabe was

“very unhappy about it.”

Accounts differ about the reason stated on the October 27 call for excluding

McCabe. McCabe told the OIG that the reason stated on the call for dropping him

related to the potential for discussion about classified information. However,

Comey, Baker, and Page all told us that Comey asked McCabe to leave the call out

of an abundance of caution because of appearance issues following revelations in

239 Comey told us he did not recall his weighing in on whether McCabe should recuse from the

Clinton Foundation investigation and said he did not remember knowing that McCabe ultimately

recused from the Clinton Foundation investigation at the same time he recused from the Clinton email

investigation.

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the October 23 WSJ article about the campaign donations to Dr. McCabe from

McAuliffe-associated PACs.

McCabe discussed the issue of his participation in the Clinton email matter

further with Comey and Baker by telephone later that day. After these

conversations, McCabe sent a text message to Page stating, “I spoke to both. Both

understand that no decision on recusal will be made until I return and weigh in.”

Baker and Kelley Meet on October 27

Baker and Kelley met on October 27 to discuss the allegation of a conflict of

interest raised by the October 23 WSJ article. Kelley said that he concluded, along

with Baker, that although the facts did not require McCabe to recuse, it was

“desirable” to recuse because of appearance concerns, so he recommended it.

Baker told us that Kelley concluded that while McCabe was not legally required to

recuse from Clinton matters he recommended recusal because of appearance

concerns and out of an abundance of caution.

An Ethics Advice Tracker from the October 27 meeting memorializing the

discussion and advice Kelley rendered states:

Cited to and discussed DOJ rule at 28 C.F.R. 45.2, conflict of interest

statute at 18 USC 208, SOC rules on impartiality at 5 CFR 2635.502,

and appearance standard at 5 CFR 2635.101(b)(14). Based on facts,

advised that I saw no legal requirement for disqualification but, on

balance, there was an appearance issue and would recommend

recusal.

Kelley’s Rationale for Recusal

Although Kelley did not issue a formal opinion in October 2016, he told us

that if he had put his advice in writing he was “confident” he would have said

recusal of McCabe in the Clinton-related matters was not required. He said his

recommendation that it was nonetheless desirable for McCabe to recuse was based

on the allegations in the press and potential adverse publicity for the FBI were

McCabe not to recuse, the fact that the FBI could “avoid a fight” while “preserving

its equities” in having another senior leader take on McCabe’s role, and, on a

personal level, making “life easier for the people who are under attack or under

scrutiny.” While Kelley said McCabe’s recusals were desirable, he also told us that

the question of whether a recusal is required under the standards of conduct is

based on the reasonable person standard, see 5 C.F.R. § 2635.101(b)(14), and not

on the “Washington Post test,” i.e., the likelihood that certain facts may become

the subject of a news article. He said that while the likelihood of adverse publicity

could factor into the reasonable person standard and that “we all have in the back

of our mind how is this going to read in the Post…we have to make the decision

based not on what’s in the Washington Post but on what a reasonable person would

take away if that person knew the relevant facts, and sometimes that’s very

nuanced.” In a memorandum Kelley wrote in April 2017, Kelley described McCabe’s

Clinton-related investigation recusals as “not required by law or regulation” and

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done by McCabe “out of an abundance of caution, and to avoid further speculation

in some quarters about the propriety of [his] continued participation.”

Kelley told us he did not believe that a reasonable person would question

McCabe’s impartiality because Dr. McCabe had no relationship to Clinton, and while

the relationship between the Governor and Clinton is close, he did not believe that

meant “we can impute that relationship or should impute that relationship to Ms.

McCabe and then turn around and impute that imputed relationship to Mr.

McCabe…it’s too tangential to say recusal is required.”

Baker and McCabe Conversation on October 31

McCabe and Baker spoke about recusal by phone while McCabe was out of

town on October 27, but no decision was made. McCabe told us he had

conversations with Baker after returning to the office on October 31 and that Baker

said to him that Kelley’s view was that he should recuse.240 Baker told us that he

had a series of conversations with McCabe culminating in a “very intense”

conversation in which Baker told McCabe that he believed he needed to recuse

himself and that it was better that he do it “than have the boss order him to do it.”

He said McCabe “was not happy about it” and “had lots of questions” and they had

a “good argument back and forth.”

McCabe said that he had numerous discussions with Baker and Page during

this time in which he expressed his view that he should not recuse out of

abundance of caution as it “would unfairly create a negative inference over the

work that the [Clinton email investigation] team had done with [his] participation

over the previous” months. McCabe said Baker presented him with his argument

that there existed connections among Hillary Clinton and McAuliffe and his wife, but

it seemed to McCabe to be too “attenuated” to call for recusal.

McCabe said that the size of the contributions that came to light in the

October 23 WSJ article was a relevant new fact for Baker in creating an appearance

concern. McCabe said he countered by arguing that the size of the contributions

should not determine whether a conflict is present, that you have a conflict at $1 as

you do at $200,000, and while Baker agreed with his analysis that there was no

legal conflict, Baker was focused on the “external impression of my involvement in

the case.”

McCabe said Baker’s response to his concerns was to acknowledge that while

he may be right on the law and facts that he was not required to recuse, Baker

believed he should recuse in light of the news article, in an abundance of caution,

for the sake of perception, and given Kelley’s view. McCabe said he believed there

was “a very clear inevitable negative impact to being overly cautious.” McCabe said

that in his discussions with Baker he asked whether he would be ordered to recuse

240 McCabe and Page both told us that neither of them spoke directly to Kelley about Clinton

matter recusals in October 2016, but wished they had because they would learn in 2017 that Kelley’s

view was the same as theirs — that there was no basis in fact or law that required McCabe to recuse

from the Clinton matters.

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and Baker told him “if the Director thinks you should, then it’s better to recuse

yourself than to be…directed; [b]etter to recuse voluntarily, than involuntarily.”

McCabe and Comey Meeting on November 1

On November 1, McCabe and Comey spoke in the Director’s office. McCabe

told us he said to Comey that he did not believe he should recuse from the Clinton

email investigation and presented the arguments he made to Baker in their earlier

conversations. McCabe said that Comey responded by saying he made a good

argument but told him that in light of the external perception from the negative

media attention he should recuse. McCabe told us that when he argued that his

recusal at this late stage may call into question his earlier participation, Comey

acknowledged that recusal could have such a negative impact, but said that given

the media attention he should nonetheless recuse. McCabe said that although

Comey did not explicitly order him to recuse, given what Baker said about a request

from the Director to recuse, he told Comey that he would recuse.

Comey told us that in his conversation with McCabe, McCabe said that the

allegations of conflict as to the Clinton email investigation were akin to a “triple

cushion bank shot” and that therefore it was unreasonable for him to seek an

opinion from Kelley on the alleged Clinton conflict. Comey said McCabe also told

him that, although he did not believe there was a legal basis for recusal, he thought

it was “prudent” for him to step aside.

Comey also said that in a conversation with McCabe he “made clear to him

[his] disappointment” that these facts were not brought to his attention earlier.

November 1 Recusal Emails

On November 1, soon after his meeting with Comey, McCabe sent emails to

FBI executives and officials overseeing the Clinton Foundation investigation and the

Clinton email investigation informing them that he was recusing himself from those

investigations. The emails stated:

As of today I am voluntarily recusing myself for the ongoing [Clinton

email investigation / Clinton Foundation investigation]. I will continue

to respond to congressional requests for historical information as

necessary.

McCabe told us that the timing of the recusals from the Clinton Foundation and

Clinton email investigations were not on different tracks and he believed that a

recusal rationale based on a perceived Clinton-related conflict as to the Clinton

email investigation logically extended to the Clinton Foundation investigation.

The FBI did not publicize McCabe’s recusals from these Clinton investigations

despite the rationale that the recusals were at least in part intended to address the

public perception of a potential conflict. In fact, even within the FBI, McCabe’s

recusal decision was only shared with a limited audience, primarily those copied on

the email and those aware of the recusal discussions. McCabe told us that he

453

thought the decision to recuse was a mistake, so to be “very public” and publicize it

“would just compound the mistake.”

Participation in Clinton Foundation Investigation after

November 1

In this section we summarize three instances in which McCabe took actions

related to the Clinton Foundation investigation after his November 1 recusal.

Call to NY ADIC Following November 3 Wall Street

Journal Article

On November 3, 2016, the WSJ published another story on the Clinton

Foundation investigation.241 That evening, McCabe emailed the ADIC of the FBI

New York Office, William Sweeney, and stated, “This is the latest WSJ article. Call

me tomorrow.” According to Sweeney’s calendar notes on November 4 and

testimony to the OIG, McCabe and Sweeney spoke for approximately 10 minutes

around 7 a.m., regarding “leaks and WSJ article” and that McCabe was “angry.”

Sweeney’s calendar notes also reflect that McCabe expressed to him: “will be

consequence[s] and get to bottom of it post elect[ion]. Need leaks to stop.

Damaging to org.”242

McCabe told the OIG that he did not recall the details of the conversation on

November 4, but it was “probably about leaks” to the media. McCabe said he

would not have viewed his conversation with Sweeney as participating in the

Clinton Foundation investigation but rather as a “logical follow-up to an ongoing

conversation” he had been having with Sweeney for several weeks over the general

issue of leaks coming out of the New York office. He said he was not transacting on

the case, making decisions, or asking about the case, but rather telling Sweeney

that he needed to address unauthorized media disclosures by getting his “people

under control.” Additionally, McCabe told us he did not believe his recusal from the

Clinton Foundation investigation encompassed his general responsibilities to

address the issue of FBI leaks.

Email to Kortan on November 3 Wall Street Journal

Article

Also on the evening of November 3, McCabe emailed the latest WSJ article to

Kortan and stated: “I am curious as to why I keep stumbling across these things

with no notice whatsoever from my OPA machine?… I would like to discuss

solutions tomorrow.” Kortan told us he did not recall the email from McCabe or any

subsequent conversation with McCabe. McCabe said his email to Kortan was

241 See Devlin Barrett and Christopher Matthews, Secret Recordings Fueled FBI Feud in

Clinton Probe, WALL ST. J., Nov. 3, 2016, https://www.wsj.com/articles/secret-recordings-fueled-fbifeud-

in-clinton-probe-1478135518 (accessed June 11, 2018).

242 As detailed in a separate OIG misconduct report, McCabe had himself authorized the

disclosure of sensitive information about the Clinton Foundation investigation to the Wall Street

Journal, which was included in an article published on October 30 as well as in the November 3 article

he discussed with Sweeney.

454

intended to address a “persistent frustration” he had over not receiving timely

notice by OPA of news articles of interest. McCabe told us he did not know if he

had a subsequent conversation with Kortan in which Kortan provided an explanation

for why OPA did not send him the article. However, McCabe said that Kortan may

not have brought the November 3 WSJ article to his attention in the first place

because McCabe had recused himself from the Clinton Foundation investigation.

When we asked McCabe whether in retrospect he should have asked Kortan to be

briefed or kept up to speed on matters he was recused from, he said, “no, no” and

reiterated that may have been why Kortan did not bring the article to his attention.

Decision Not to Disclose McCabe’s Recusals to Congress

Soon after the publication of the October 23 WSJ article, the FBI received

three Congressional requests for information regarding the facts and allegations in

the article. One was a letter from Senator Charles E. Grassley to Director Comey

dated October 28, 2016, requesting answers to 12 questions, including one which

stated: “What steps are you taking to mitigate the appearance of a conflict of

interest in the Clinton email investigation and to reassure Congress and the

American people that the investigation was not subject to political bias?”

On December 14, 2016, the FBI sent its response to Senator Grassley’s

letter, signed by the then-Acting Assistant Director (AAD) for the FBI’s Office of

Congressional Affairs (OCA). The December 14 letter did not explicitly address

Senator Grassley’s question concerning mitigation steps taken or otherwise disclose

McCabe’s November 1 recusal from the Clinton email investigation. Instead, the

last two sentences of the corresponding paragraph in the final December 14 letter

stated:

Dr. McCabe lost the election for state senate on November 3, 2015,

months before Mr. McCabe, as DD, assumed responsibility for the

Clinton email investigation. Based on these facts, it did not appear that

there was a conflict of interest – actual or apparent – that required

recusal or waiver.

We attempted to determine who made the decision not to disclose the

November 1 recusal of McCabe from the Clinton email investigation in the

December 14 response to Senator Grassley, and for what reason.

Beginning in early December 2016, the OCA AAD and another OCA staff

member circulated several drafts of the response to Senator Grassley. One draft

included the sentence: “On October [?], 2016, out of an abundance of caution, Mr.

McCabe recused himself from further participation in the [Clinton email]

investigation.” Lisa Page responded in an email that stated, “No way on [that]

sentence. During our conversation with Jim [Baker] last week, both of us

express[ed] our overwhelming interest in protecting that fact as long as possible.”

Page told us she believed the “both of us” reference was to herself and McCabe, but

was not sure. Page told us she believed that McCabe’s recusal, if revealed, would

have been misused for political purposes and further inflamed the claims that

Comey and McCabe were biased in favor of Clinton. Page also said she was not

455

sure who made the ultimate decision on whether to disclose McCabe’s recusal. She

said that she did not know whether McCabe weighed in on this decision.

McCabe told us he did not have a recollection of any discussion, including

with Comey, regarding whether to reveal his recusal from the Clinton email

investigation in the December 14 letter. He said Page’s “protect the fact” comment

in her email reflected their thinking at the time that to reveal that information

would create a “potentially damaging misimpression of the case” and that although

he did not recall specifically discussing this issue with Comey, he believed Comey

was also of that view.

Comey said he had “some recollection” that his Chief of Staff, James Rybicki,

presented him with two options being considered, one sentence urged by McCabe

and his staff would respond narrowly, the other would volunteer the fact of

McCabe’s recusal. Comey told us he did not recall the details of his participation in

the decision on how to answer, but he said he recalled seeing the proposed

language and hearing about an internal conflict that McCabe did not want the FBI to

volunteer that he had recused from the Clinton email investigation. Comey told us

that although he does not recall how he responded to the issue as it was presented

to him, he assumes he would have agreed to the final language so long as it was

“technically accurate I’m okay with answering it narrowly.” Rybicki told us he had a

vague recollection of the Grassley letter, but could not recall any discussions

regarding whether to disclose McCabe’s November 1 recusal to Congress or whether

the issue was presented to Comey.

The OCA AAD told us he did not specifically recall who made the decision not

to disclose McCabe’s recusal, but that he believes McCabe likely made the decision.

However, the OCA AAD said he did not remember having a conversation with

McCabe about disclosing his recusal in the December 14 letter or providing him a

draft with the proffered recusal language in it.

OIG Analysis
Recusal Issues

In this section we analyze whether McCabe should have been recused from

the Clinton investigations prior to November 1, 2016 and whether he adhered to

the terms of his recusal once he was recused.

Summary of Findings

We found that McCabe was not required to recuse from the Clinton-related

investigations under section 502(a) or any of the other relevant authorities. We

also determined that, at the time McCabe became Deputy Director and thus had

authority over Clinton-related investigations, no one in the FBI considered the

question of whether Dr. McCabe’s campaign raised recusal concerns as to Clintonrelated

investigation. This issue was not considered until after publication of the

October 23 WSJ article and led to McCabe recusing himself from Clinton-related

investigations on November 1, 2016. We found that McCabe did not fully comply

456

with his November 1 recusal in a few instances related to the Clinton Foundation

investigation as detailed below.

We found that FBI ethics officials and attorneys did not fully appreciate the

potential significant implications to McCabe and the FBI from campaign donations to

Dr. McCabe’s campaign. The FBI did not implement any review of campaign

donations to assess potential conflicts or appearance issues that could arise from

the donations. On this issue, we believe McCabe did what he was supposed to do

by notifying those responsible in the FBI for ethics issues and seeking their

guidance. Had the FBI put in place a system for reviewing campaign donations to

Dr. McCabe, which were public under Virginia law, the sizable donations from

McAuliffe’s PAC and the Virginia Democratic Party may have triggered prior

consideration of the very appearance concerns raised in the October 23 WSJ article.

Recusal from Clinton-Related Investigations

We agree with FBI chief ethics officer Kelley and found that the relevant

authorities did not require McCabe to recuse himself from Clinton-related

investigations. With regard to the financial conflicts provisions in Sections 208 and

502(a), there is no evidence of any financial or business ties between the McCabes

and the Clintons or their Foundation. Further, there is no evidence that Hillary

Clinton provided political or financial support to Dr. McCabe’s 2015 senate

campaign. The fact that McAuliffe supported Dr. McCabe’s campaign, and was a

known associate of Hillary Clinton, did not create any connection between the

Clinton email investigation and Dr. McCabe’s financial interests. Indeed, by the

time McCabe became Deputy Director and assumed supervisory responsibilities for

any Clinton-related matters, Dr. McCabe had already lost her election, and no

developments in the Clinton-related matters could have any plausible impact on Dr.

McCabe’s financial interests, let alone a direct and predictable one as required

under Sections 208 or 502(a).

In addition, because neither McCabe nor Dr. McCabe had a political or

personal relationship with Clinton, McCabe was not obligated to recuse under 28

C.F.R. § 45.2. As discussed above, “political relationship” under section 45.2 is

defined to mean “a close identification with an elected official, a candidate (whether

or not successful) for elective, public office, a political party, or a campaign

organization, arising from service as a principal adviser thereto or a principal official

thereof.” “Personal relationship” is defined as a “close and substantial connection

of the type normally viewed as likely to induce partiality.” Neither McCabe nor Dr.

McCabe, who had never even met Clinton, served as a “principal adviser” to Clinton

or had a “close and substantial connection” to Clinton sufficient to meet the

definitions of political and personal relationships in section 45.2.

Although McCabe was not required by law or regulation to recuse from the

Clinton-related investigations, he recused from these investigations on November 1,

2016, at the urging of Director Comey, who told us that he did not learn about

McAuliffe’s financial support of Dr. McCabe’s candidacy until it was revealed in the

October 23 WSJ article. Voluntary recusal is always permissible with the approval

457

of a supervisor or ethics official, even where the elements in section 502(a) are not

present.

We did not find fault with McCabe for not considering, prior to the October 23

WSJ article, whether to recuse himself under the “other circumstances” provision of

section 502(a)(2) or the “appearance” provision of section 101(b)(14) of the

Standards of Ethical Conduct.243 However, we were troubled by the fact that the

FBI ethics officials and attorneys did not fully appreciate the potential significant

implications to McCabe and the FBI from campaign contributions to Dr. McCabe’s

campaign and did not implement any review of those campaign donations. Thus,

while the same factual circumstances that led to McCabe’s recusal on November 1,

2016 were present at the time McCabe became Deputy Director on February 1,

2016, the FBI ethics officials, McCabe, and Comey only learned of them as a result

of the October 23 WSJ article. Had the FBI put in place a mechanism to review the

campaign’s donation information, it would have been in a position to consider these

issues earlier.

We believe McCabe did what he was supposed to do by notifying those

responsible in the FBI for ethics issues and seeking their guidance. Thereafter, he

was entitled to rely on those ethics officials to identify any ethics issues that were

implicated by Dr. McCabe’s candidacy.

Campaign donations to a spouse’s campaign present complicated questions

under section 502(a), as well as under the financial conflict of interest statute.

They also may present significant appearance issues under section 502(a)(2). The

fact that the FBI did not apparently recognize the issues, and the potential

importance of them, became evident when the October 23 WSJ article was

published. Under Virginia law, the identity of contributors and their donation

amounts was available to the public. Had the FBI reviewed the campaign donations

to Dr. McCabe, they would have observed the $675,288 from McAuliffe’s PAC and

the Virginia Democratic Party, which may have resulted in earlier consideration of

the very appearance concerns raised in the October 23 WSJ article. The predictable

result of the WSJ article triggered the October 2016 controversy, which led to

Comey’s decision to ask McCabe to recuse himself from Clinton-related

investigations.

We further determined that the FBI’s decision to keep McCabe’s recusal from

Clinton matters a secret made no sense. The apparent purpose of that recusal was

to address allegations concerning the propriety of McCabe’s continued participation

in the Clinton-related investigations, which would be used to undercut the FBI’s

credibility. This purpose is generally accomplished by informing the public that

McCabe was recused. However, the FBI did not publicize McCabe’s recusal. As a

related matter, we do not believe that the FBI acted wisely in deciding not to reveal

McCabe’s recusal to Senator Grassley in response to a question to which this fact

243 As noted above, McCabe told us that neither he nor his wife attended the June 2015

fundraiser in Virginia and that he was unaware that the Clintons or anyone on their behalf ever

contributed to Dr. McCabe’s campaign. He said neither he nor his wife have ever met the Clintons.

458

was reasonably responsive. Again, the recusal decision served no function in

protecting the FBI’s reputation if it was kept secret.

We considered whether McCabe violated his voluntary recusal from Clintonrelated

matters after November 1. Recusal “is accomplished by not participating in

the matter.” 5 C.F.R. § 2635.502(e). Exposure to case related information by a

recused employee when attending a meeting or briefing, including receiving

information about news articles related to the recused matter, is a form of

participation that must be avoided. We found no evidence that McCabe continued

to supervise investigative decisions in the Clinton-related matters after that day.

We did find that McCabe, prompted by a follow-up WSJ article of November 3,

2016, made inquiries about the steps the FBI was taking to address media leaks

relating to the Clinton Foundation and exhorting managers to stop the leaking.

McCabe’s conduct in inquiring about media leaks appears to have been consistent

with instructions that Comey told us he gave McCabe about taking action on media

leaks in the Clinton Foundation investigation. However, McCabe’s conduct was not

fully consistent with his recusal, as the discussion of the Clinton Foundation

investigation in the November 3 WSJ article was the very basis for his call and

admonitions to Sweeney, the NY ADIC. McCabe told us he did not believe his

recusal from the Clinton Foundation investigation encompassed his general

responsibilities to address FBI leaks. But McCabe’s November 1 recusal email

contained one exception, which allowed him to continue to respond to

Congressional requests for information, and it did not carve out an exception

allowing him to continue addressing the leaks about the Clinton Foundation

investigation.

Similarly, McCabe encroached on his recusal obligations when he forwarded

the November 3 WSJ article to OPA chief Kortan and asked why he (McCabe) kept

seeing such articles without prior notice from OPA. While McCabe told us that his

email to Kortan was intended to express a generalized frustration with lack of prior

notice by OPA, McCabe acknowledged that he should not have asked Kortan to keep

him up to speed on matters he was recused from. McCabe also said that may have

been the very reason Kortan did not bring the November 3 WSJ article to his

attention.244

244 In March 2017, news accounts reported allegations that McCabe failed to disclose in his

Public Financial Disclosure Report (OGE Form 278e) for 2016, the amount of salary his wife received

from her employer and the campaign donations she received in 2015. However, such disclosures are

not required by OGE Form 278e. First, the OGE regulation addressing the financial disclosure report

expressly states that the report does not need to disclose the amount of the spouse’s income. See 5

C.F.R. § 2634.309(1). Second, according to the OGE regulations, while campaign funds need not be

included in the financial disclosure report “if the individual has authority to exercise control over the

fund’s assets for personal use rather than campaign or political purposes, that portion of the fund over

which such authority exists must be reported.” 5 C.F.R. § 2634.311(a). However, the OGE

regulations do not require reporting gifts that are received by a spouse “totally independent” of the

spouse’s relationship to the filer. 5 C.F.R. § 2634.309(a)(2). While we did not investigate individual

donations to Dr. McCabe’s campaign committee, during our review we did not find evidence

suggesting that Dr. McCabe received campaign donations because of McCabe

459

Conclusion

We agreed with Kelley, the FBI’s chief ethics official, that McCabe was not at

any time required to recuse from the Clinton-related investigations under the

relevant authorities. However, following the October 23 WSJ article and discussions

with Comey, McCabe recused from the Clinton-related investigations on November

1, 2016. Once McCabe recused himself, he was required to cease participation in

those matters. Voluntary recusal is always permissible with the approval of a

supervisor or ethics official, even where the elements in section 502(a) are not

present. We found that McCabe did not fully comply with his recusal in a few

instances related to the Clinton Foundation investigation.

We also found that the FBI ethics officials and attorneys did not fully

appreciate the potential significant implications to McCabe and the FBI from

campaign contributions to Dr. McCabe’s campaign and did not implement any

review of those campaign donations. We therefore recommend that ethics officials

consider implementing a review of campaign donations when Department

employees or their spouses run for public office.

460

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A Review of Various Actions by the Federal Bureau of Investigation and Department of Justice in Advance of the 2016 Election Oversight and Review Division 18-04 June 2018 CHAPTER THIRTEEN: WHETHER FORMER DEPUTY DIRECTOR ANDREW MCCABE SHOULD HAVE RECUSED FROM CERTAIN MATTERS

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