The Justice Department hinted in a court filing Wednesday that it likely won’t prosecute Andrew McCabe, saying it will no longer shield documents about the former FBI deputy director from public release.
In the filing, the Justice Department said it is withdrawing its argument that releasing public records related to Mr. McCabe would interfere with an ongoing enforcement proceeding. The government typically invokes that exemption, known as 7(A), when there is an ongoing probe or prosecution.
“Defendant hereby informs the court that it is withdrawing its invocation of Exemption 7(A) over information related to the proceeding,” Justice Department lawyers wrote.
Attorneys for Mr. McCabe declined to comment on the filing. A Justice Department spokeswoman did not immediately respond to a request for comment.
The filing came as the Justice Department approached a deadline set by a federal judge to disclose whether it would file criminal charges against Mr. McCabe.
Citizens for Responsibility and Ethics in Washington (CREW) filed a Freedom of Information Act lawsuit against the Justice Department seeking records related to Mr. McCabe’s firing.
Mr. McCabe is not a party to the lawsuit.
Last month, U.S. District Judge Reggie Walton set a Nov. 15 deadline for the Justice Department to say whether or not it will induct the former FBI official. If the government, failed to disclose their decision, Judge Walton, said, he would start releasing documents related to Mr. McCabe’s case.
“So the government will have to make the call. If it doesn’t, I’m going to start ordering the release of information,” Judge Walton said. “I think our society, our public does have a right to know what’s going on.”
The left-leaning CREW filed the suit to find out if Mr. McCabe’s firing was politically motivated since President Trump had been demanding his termination.
Mr. McCabe was fired in March 2018 by then-Attorney General Jeff Sessions after a Justice Department watchdog concluded he lied about unauthorized disclosures to the media. He was referred to the Justice Department for criminal prosecution but it is not known where the case stands at the moment.
Justice Department lawyers argued that documents about Mr. McCabe should not be made public because he still might be criminally charged.
The status of a potential McCabe prosecution has remained a mystery, including to his lawyers.
In September, Mr. McCabe’s lawyers requested the Justice Department reveal whether or not a Washington, D.C., grand jury rejected an indictment. They said at the time they had no knowledge of grand jury proceedings against their client, but had heard “rumors from reporters.”
That same month, the lawyers accused the Justice Department of withholding information about the investigation. The U.S. Attorney’s Office in Washington was a target of their ire, saying it ignored requests to learn more about whether Mr. McCabe’s case went before a grand jury.
“We have directed numerous inquiries to the U.S. Attorney’s Office over the past week about the status of the investigation to our client, Andrew McCabe,” the attorneys said at the time. “We have been provided with no information in response to those requests. What little information we have has come from the news media.”
Mr. McCabe is currently suing the FBI and Justice Department over the circumstances of his firing.