The front pages and chyrons are focused on the fact that FBI Deputy Director Andrew McCabe is leaving the agency. It’s newsworthy as it comes in the midst of the Russia-Trump-campaign criminal investigation, presidential tweets critical of McCabe and reports that Trump’s first meaningful meeting with McCabe involved Trump asking for whom he voted. Did I mention McCabe is a lawyer?
There’s a concept in law known as the “noisy withdrawal” — when the lawyer not only ceases representing the client but does so in a way that lets others know why he or she is doing it. As you might guess, the general rule is lawyers must remain mum or discreet about reasons for departure. For example, if your lawyer must tell a judge that the lawyer is withdrawing due to your non-payment of fees, she can only tell the court something like it is for reasons consistent with the attorney-client agreement that she wants out.
On the other hand, lawyers sometimes are permitted to say why they’re pulling out. For example, the Securities and Exchange Commission in some situations allows a lawyer for a public company to notify the commission that the lawyer is withdrawing due to concerns about fraud. Similarly, depending on the state you’re in, a lawyer may be allowed or required to notify a court if she believes her client intends to, or has, deliberately lied under oath during a trial.
The noble tradition of a career public servant leaving his job earlier than planned is to do so quietly. Kiss-and-tell books about federal careers — such as one about the Secret Service — often have been widely condemned. Which brings us back to FBI Deputy Director McCabe: Should he go quietly or noisily? Though a lawyer, he does not serve in an attorney’s role at the FBI and so he has more freedom to choose which path to take.
The answer lies in his oath of office, drawn from 5 U.S.C. § 3331. McCabe swore to “support and defend the Constitution of the United States against all enemies, foreign and domestic…” He did not promise to protect the president’s poll ratings. In any other presidency, I would suggest he lean toward going quietly and honorably. Here, honorably and quietly may not both be possible. I am not suggesting he reveal confidential information about ongoing investigations, but leaving merely “to step aside” does the country and the bureau staff he leaves behind no favors.
What I propose instead is that he hold a press conference and declare: “This is not normal. In my service for the FBI since 1996, never before did a president ask me how I voted or care how my wife voted. At least since Watergate, no president has pushed out top FBI officials at a time when some of the bureau’s agents were involved in investigating the president and/or his family. I swore to uphold the Constitution and protect it from its enemies. I am doing so now by letting you know that the president is no friend of the Constitution.”
Whatever happens from that point, Mr. McCabe and we can be sure of one thing: He upheld his oath. Silence in the face of the death of a democracy bears no honor at all.