The face of FBI politics: Bureau boss McCabe under Hatch Act investigation

By John Solomon and Sara A. Carter

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June 27, 2017 05:46 PM EDT

WATCH | Acting FBI Director Andrew McCabe is being investigated by the Office of U.S. Special Counsel for violating The Hatch Act that prohibits FBI agents from campaigning in partisan races.

The Office of U.S. Special Counsel, the government’s main whistleblower agency, is investigating whether FBI Deputy Director Andrew McCabe’s activities supporting his wife Jill’s Democratic campaign for Virginia state senate in 2015 violated the Hatch Act’s prohibition against FBI agents campaigning in partisan races.

The agency’s probe was prompted by a complaint in April from a former FBI agent who forwarded social media photos showing McCabe wearing a T-shirt supporting his wife’s campaign during a public event and then posting a photo on social media urging voters to join him in voting for his wife.

“I am voting for Jill because she is the best wife ever,” McCabe put on a sign that he photographed himself holding. The photo was posted on her social media page a few days before the election, in response to Dr. Jill McCabe's plea to “help me win” by posting photos expressing reasons why voters should vote for her, according to the complaint.

Other social media photos in the complaint showed McCabe's minor daughter campaigning with her mother, wearing an FBI shirt, and McCabe voting with his wife at a polling station.

Look at the social media photos included in the Hatch Act complaint.

The Hatch Act prohibits FBI employees from engaging "in political activity in concert with a political party, a candidate for partisan political office, or a partisan political group."

It defines prohibited political activity as "any activity directed at the success or failure of a partisan group or candidate in a partisan election."

An ethics expert told Circa the photos raised legitimate questions about McCabe's compliance with the law.

OSC declined comment except to confirm the Hatch Act complaint was still active and under review. FBI officials and McCabe, through the FBI press office, declined comment.

The FBI has said previously McCabe consulted ethics experts to ensure he didn't do anything improper with his wife's campaign and that the agent didn't believe he had ever campaigned or helped his wife's election. That claim, however, is now being challenged by the former FBI agent's complaint.

Meanwhile, Virginia Gov. Terry McAuliffe’s office released to Circa under the Freedom of Information Act documents showing McCabe attended a meeting with his wife and the governor on a Saturday in March 2015 specifically to discuss having Jill McCabe run for state Senate in Virginia as a Democrat.

"This is a candidate recruitment meeting. McCabe is seriously considering running against State Senator Dick Black. You have been asked to close the deal," the briefing memo for McAuliffe read.

Included in the governor's briefing package was a copy of McCabe's FBI biography. The biography made clear that Andrew McCabe was a senior executive who at the time oversaw the FBI’s Washington field office that among many tasks supervised investigations in northern Virginia.

At the time of the meeting, published reports indicate agents in the Washington field office were involved in both a probe of McAuliffe and of the governor’s close friend, Hillary Clinton’s and her private email account.

The Hatch Act poster hanging inside FBI offices to urge compliance clearly states that an FBI employee "may not knowingly solicit or discourage the political activity of any person with business before the agency."

FBI sources, who spoke only on condition of anonymity, said agents were specifically concerned that McCabe's meeting with McAuliffe about supporting Jill McCabe's campaign constituted a solicitation of a person with business before the bureau.

Check out the Hatch Act poster advising FBI employees how to comply with the law.

McAuliffe’s office said Tuesday it could not immediately determine how it came it to possions of the McCabe FBI bio that was included in McAuliffe’s briefing book.

The meeting led to McAuliffe supporting Jill McCabe’s candidacy and ultimately sending her $700,000 in support, McAuliffe aides said.

The issue of whether McCabe took the necessary ethics precautions to avoid a conflict of interest is already being investigated by the Justice Department inspector general at the request of the Senate Judiciary Committee Chairman Charles Grassley (R-IA).

“While Mr. McCabe recused himself from public corruption cases in Virginia -- presumably including the reportedly ongoing investigation of Mr. McAuliffe regarding illegal campaign contributions -- he failed to recuse himself from the Clinton email investigation, despite the appearance of conflict created by his wife’s campaign accepting $700,000 from a close Clinton associate during the investigation,” Grassley wrote in seeking the IG probe.

Jill McCabe, a physician, lost a close race for a state Senate seat in northern Virginia in November 2015.

When questions first arose about the money Jill McCabe's campaign got from McAuliffe, the FBI insisted that Andrew McCabe never used his FBI role to aid her campaign and “did not participate in fundraising or support of any kind” for his wife’s political run.

Former Supervisory Special Agent Robyn Gritz, who is suing the FBI and McCabe alleging sexual discrimination during her 16-year career, filed the complaint alleging the social media photos are evidence of possible Hatch Act violations.

The Hatch Act prohibits all federal employees from engaging in election activities during work hours. Most government workers are free, however, to campaign during their own private time.

But the law imposes a tough standard for FBI employees, prohibiting partisan campaigning at any time. FBI employees “may not campaign for or against candidates or otherwise engage in political activity in concert with a political party, a candidate for partisan political office, or a partisan political group,” the law states.

Gritz argued in her complaint to the OSC that the photos suggest McCabe violated that standard.

“As a former FBI agent, it is my understanding that we were held to a higher level with regard to the Hatch Act,” Gritz wrote in her OSC complaint. “While I’m filing this complaint, I am doing it due to the large number of current, former and retired FBI agents who know if they were acting such as McCabe we’d be already on leave without pay, under investigation and assured of being in violation. We are all under the impression that these are, in fact, violations.”

Richard Painter, the former chief ethics lawyer for the White House, said that the social media photos and the McAuliffe meeting documents raise serious questions because FBI and intelligence community officials must adhere to more stringent rules under the Hatch Act.

“What is not acceptable would be using the official position, in the government, particularly the official position in the FBI in order to further a political campaign, the political campaign of a spouse or anybody else,” Painter told Circa.

Painter said the “question is why are you sending your bio from the FBI? Are you trying to do that to influence the campaign or is this something somebody wants for informational purposes? But if you’re trying to use your position to get somebody to give money to a political campaign that is crossing the line.”