June 5, 2018
The Honorable Christopher A. Wray
Director
Federal Bureau of Investigation
935 Pennsylvania Ave NW
Washington, D.C. 20535
Dear Director Wray:
On May 30, 2018, the Senate Judiciary Co
mmittee invited former FBI Deputy Director
Andrew McCabe to testify at an upcoming co
mmittee hearing. The hearing will examine a
report compiled by the Department’s Inspector General, and likely will explore topics that Mr.
McCabe is uniquely qualified to address, such
as his work on the Clinton e-mail investigation
and his recent termination from federal service. The Committee requested that Mr. McCabe
provide documents in advance of the hearing that
his attorney has claimed support his client’s
allegations that his termination was improper.
On June 4, 2018, Mr. McCabe’s attorney informed the Committee that Mr. McCabe signed a nondisclosure agreement (NDA) with
the FBI that prevents him from providing the
requested document to the Committee. He further sought immunity in exchange for his
testimony and asserted his intention to invoke
his Fifth Amendment right against self-
incrimination without it. The Committee requested, and Mr. McCabe’s attorney provided, a
copy of the NDA.
I have written to various Executive Branch
agencies, including the FBI, over the years
about their use of non-disclosure agreements.
1
As I have pointed out repeatedly, no appropriated funds may be used to enforce an NDA that does not specifically allow for lawful, protected disclosures using specific language required by the law in each Congressional appropriations bill signed by the President.
2
The NDA Mr. McCabe signed does not include the legally required language to recognize FBI employees’ rights to disclose any matter to Congress which theybelieve constitutes a violation of law, rule, or regulation, or gross mismanagement, a gross waste of funds, or a substantial danger to public health and safety.
3
Accordingly, please:
1.
Notify Mr. McCabe’s attorney that, in accordance with federal law, the NDA cannot restrict disclosures to Congress.
2.
Explain why the FBI continues to use federal funds in violation of the appropriations restrictions for the drafting, execution, and enforcement of
nondisclosure agreements that do not comply with the law.
3.
Describe what steps you plan to take to ensure that the FBI’s General Counsel’s Office, the Office of Professional Responsibility, and all other divisions comply with these important legal requirements going forward? If none, please explain.
4.
Describe what steps you plan to take to hold officials accountable for violating these funding restrictions by drafting non-compliant agreements in an effort to muzzle FBI employees? If none, please explain.
Thank you for your attention to this important
matter. Please contact DeLisa Lay of my
staff with any questions at (202) 224-5225.
Sincerely,
Charles E. Grassley
Chairman
Committee on the Judiciary
https://www.judiciary.senate.gov/imo/media/doc/2018-06-05%20CEG%20to%20FBI%20(McCabe%20and%20NDA).pdf