Yesterday we learned that Andrew McCabe’s final appeal to avoid a possible indictment had been rejected by the Department of Justice. That suggested that an announcement of charges against him could be imminent, but yesterday evening the Washington Post reported that a grand jury considering McCabe’s case had, so far as we know, done nothing:
The notification was notable in its own right but particularly suggestive that charges were imminent, because a federal grand jury investigating McCabe was suddenly recalled this week after a months-long hiatus. But the panel was released Thursday with no immediate signs of an indictment. That could be a sign they balked, though it is also possible they have filed a determination under seal or could be asked to return later.
To bring an indictment, prosecutors would have to persuade 12 of the 23 grand jurors to sign onto the decision. If grand jurors turn them down, it is possible for prosecutors to call in a new group, though they would then have to restart the process.
A Justice Department spokesman declined to comment. Spokeswomen for McCabe, the U.S. attorney’s office and the D.C. federal courthouse also declined to comment.
But despite the official silence, there were apparently rumors floating around that the grand jury may have refused to indict. Today, the NY Times reported that McCabe’s lawyers are busy chasing those rumors:
Lawyers for the former F.B.I. deputy director Andrew G. McCabe, a frequent target of President Trump, have asked federal prosecutors whether a secret grand jury refused to indict him, which would be a sign that the government is struggling to make a case against him.
In a letter sent late on Thursday, defense lawyers asked whether a grand jury had considered charges against Mr. McCabe, who is being investigated over whether he lied to internal investigators about interactions with news media. The letter came shortly after the Justice Department told Mr. McCabe’s lawyers that it had rejected their pitch to the deputy attorney general to drop the case.
In fact, the letter from McCabe’s attorneys, which the Times published here, included another pitch to let their client off the hook:
We have no independent knowledge of whether the reporting is accurate but for present purposes we assume that the grand jury may have voted a no true bill. If that is true ,we want to
bring a couple of important points to your attention…
We believe that for the reasons we have presented to you and the deputy AttorneyGeneral in person and in writing, you not resubmit this case. This is not a case where the evidence was presented in a hurry, or that some important piece of evidence was inadvertently not submitted to the grand jury, which would make it the rare case where resubmission of a case to the grand jury might be warranted. Thatis not this case.
In other words, if the grand jury didn’t indict, you should a) tell us and b) drop this now.
Prosecutors aren’t obligated to drop this. They could choose to try again with the same grand jury or a new one. The leak of the attorney’s letter to the Times might be part of a cagey strategy by attorneys to apply public pressure against this possibility. Or, as the Post notes above, there could already be an indictment filed under seal. Maybe the rumors the grand jury balked are just rumors. It appears we’ll have to wait a bit longer to see if Andrew McCabe gets a pass on lying repeatedly to the FBI under oath.