On Thursday, we heard the bombshell news that the DOJ had rejected fired FBI Deputy Director Andrew McCabe’s appeal of the decision to recommend charges against him.
On Thursday night, McCabe’s lawyers sent an inquiry to US Attorney Jesse Liu and several other DOJ prosecutors. They cited a Washington Post report from the morning that said a grand jury had already met and had declined to indict McCabe.
The Washington Post report they refer to said “a grand jury was recently summoned back after a months-long hiatus to consider the case” but “came and went with no public charges being filed.” A second article appeared in the New York Times which had cited the Washington Post report as their source.
The email, sent by McCabe lawyer Michael Bromwich, said they had heard “rumors from reporters starting this morning that the grand jury considering charges against Mr. McCabe had declined to vote an indictment.”
According to the Washington Post, Bromwich “noted he had no independent knowledge of whether the reporting is accurate but suggested that if it was, prosecutors should abandon their effort. He also wrote that, based on a Thursday discussion with federal prosecutors, it is clear that no indictment has been returned.”
If this is the case, the only fair and just result is for you to accept the grand jury’s decision and end these proceedings.
In substance, the decision whether to resubmit a case, following a no true bill, to the same grand jury — or submit the case to a new grand jury — is entrusted to your discretion. We believe that for the reasons we have presented to you and the Deputy Attorney General in person and in writing, you should not resubmit this case.
(Note: A “no true bill” case refers to a situation when grand jurors are asked to bring an indictment and decline to do so.)
Bromwich sent a second email which said, “Please confirm that, if this in fact occurred, you would advise us promptly.”
Fox News points out that “it is rare for a grand jury not to indict when presented evidence by prosecutors.” They also note that grand juries are known for their secrecy, so this was highly unusual.
According to The Lawfare blog, Rule 6(e) of the Federal Rules of Criminal Procedure forbids the government, court officials or grand jurors from disclosing matters before the grand jury.
If the grand jury did convene as rumored on Thursday, Lawfare said there are two possibilities.
The first is that the jury failed to obtain the necessary votes to indict McCabe. And they stress that this almost never happens. Lawfare reports there is “an old saying that a prosecutor can get a grand jury to indict a ham sandwich.”
The other outcome is that the grand jury voted to indict, but the record remains under seal.
I will provide an update when one becomes available.