On the mystery of the McCabe grand jury

All of this is the background to whatever happened yesterday, when the grand jury met after McCabe’s lawyers had been informed that an indictment would be sought—and yet no indictment emerged.

It is hard to express what an incredibly rare occurrence a grand jury refusal to return what is called a “true bill” would be, if that is indeed what took place. It may not be quite accurate that, as the saying goes, a prosecutor can get a grand jury to indict a ham sandwich, but the sentiment gets at something real. The Bureau of Justice Statistics indicates that between October 2013 and September 2014—the last year these data were publicly available—the department investigated almost 200,000 cases and declined to prosecute roughly 31,500. Of the latter category, just five of those cases were declined because a grand jury returned no true bill—a percentage so small that the Bureau of Justice Statistics declines to actually write it out. Between October 2010 and September 2011, and October 2011 and September 2012, the proportion of declined cases explained by grand juries returning no true bills is a momentous 0.1 percent.

Again, we don’t know yet if that is what happened in McCabe’s case. There are possibilities other than the grand jury balking. It’s conceivable, for example, that prosecutors for some reason simply did not ask the grand jury to return an indictment on Thursday. This would be unusual: According to the Post, the grand jury panel originally investigating McCabe was reconvened on Thursday after an absence of months. One possibility is that this detail in the Post’s reporting may be incorrect and that the grand jury convened is a new one, not the one that already heard all the evidence—and that it thus needs to be read the transcripts of the earlier grand jury testimony. That could take time, and it would mean that the new grand jury might not be ready to reach a decision right away. But we have no reason to doubt the Post’s reporting on this point and can think of no obvious reason why, if the grand jury was recalled, the question of an indictment would not have been put to it.