Published by The Lawfare Institute
in Cooperation With
Did a federal grand jury refuse to hand up an indictment of former FBI Deputy Director Andrew McCabe?
No media organization has reported that this is what happened Thursday, but something clearly happened when the grand jury met—and that something wasn’t the McCabe indictment that everyone was expecting.
McCabe’s indictment had been expected on charges related to alleged lies to internal Justice Department investigators about his contacts with the media in 2016. On Thursday, Sept. 12, the New York Times and the Washington Post reported that the deputy attorney general had rejected McCabe’s final appeal within the department to avoid prosecution. According to the Post, McCabe received a communication from the Justice Department informing him that “[t]he Department rejected your appeal of the United States Attorney’s Office’s decision in this matter …. Any further inquiries should be directed to the United States Attorney’s Office.” The Times writes that the decision was made by Deputy Attorney General Jeffrey Rosen, and that Rosen’s top aide, Ed O’Callaghan, reached out to McCabe’s team on the matter.
There is a great deal of uncertainty around what happened next, almost certainly because 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. This may make the McCabe story a particularly hard nut for reporters to crack. But here’s what we know.
Normally, when the Justice Department informs a criminal target that it is moving ahead with charges, particularly when the target is a high-profile one, the indictment follows immediately. Yet in this case, no indictment materialized. And that wasn’t because the grand jury didn’t meet.
According to the Post, rather, the grand jury was reconvened on Thursday—but no public charges against McCabe were filed. Now, McCabe’s lawyer, Michael Bromwich, has written to U.S. Attorney Jessie Liu, whose office is handling McCabe’s case, stating that the defense team has heard “rumors from reporters … that the grand jury considering charges against Mr. McCabe had declined to vote an indictment”—though the defense has “no independent knowledge of whether the reporting is accurate.” Bromwich added that “based on our discussion with” government lawyers, “it is clear that no indictment has been returned.”
The possibility of a criminal case against McCabe has smelled bad for a while. As one of us has spelled out in detail, this is not the kind of case that normally ends up as a criminal matter. While the Justice Department inspector general report that led to McCabe’s dismissal from the bureau is sharply critical of his conduct, indictments for false statements in internal Justice Department investigations, without some exacerbating factor, are exceedingly rare. This sort of misconduct is normally handled in internal disciplinary proceedings—and McCabe was already fired. Indeed, there’s nothing about the inspector general’s findings about McCabe that seem to make his case a likely candidate for a criminal disposition. What makes McCabe’s situation distinctive, rather, is the public campaign against him by the president of the United States, who has tweeted and spoken repeatedly about McCabe and publicly called for his prosecution.
Without saying a word in defense of McCabe’s conduct—which, if accurately described by the inspector general, is condemnable—there are good reasons to be anxious about a case that both seems far from the sort normally prosecuted and involves someone the president has singled out for persecution. There have also long been reasons to doubt the strength of the case, not the least of which is that two of the prosecutors who supervised it have dropped off the matter.
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.
The other possibility is that the grand jury did return an indictment but did so under seal. This would explain why McCabe’s defense team is not aware of any charges. But this possibility seems unlikely for a different reason: It’s far from clear why the government would want to keep the indictment off the public record, or why the court would permit it. Law enforcement typically may keep an indictment sealed only if it has a legitimate prosecutorial interest in doing so. It’s hard to imagine what legitimate prosecutorial interest could justify sealing an indictment of McCabe once major news organizations have already reported that charges against him are on the way and the Justice Department has informed his counsel that it is proceeding against him. McCabe is hardly likely to skip town.
Then there is a third possibility: that the grand jury actually declined to indict McCabe, instead returning no true bill.
This would be a very big deal—a huge rebuke to the Justice Department’s conduct of this case. Grand juries do not need to be unanimous. They need to have a quorum of their 23 members, and they require only a majority of at least 12—that is, a majority of the full grand jury, no matter how many grand jurors are present—to return an indictment. They also don’t proceed by proof beyond a reasonable doubt, the standard at trial. Instead, an indictment issues on the lower standard of probable cause. In other words, if this is really what happened, it would mean that the Justice Department couldn’t even persuade a majority of people who have heard from all of the witnesses that there is even probable cause to proceed against McCabe.
If this turns out to be true, such a rebuke would raise another question: Will the Justice Department try again? There’s nothing that actually prevents this. The Justice Manual (formerly known as the U.S. Attorneys’ Manual) states that after a grand jury returns no true bill, prosecutors may resubmit the matter to another grand jury—as long as they do so with the approval of the relevant U.S. attorney. In 1920, the Supreme Court held in United States v. Thompson that a court may not require a U.S. attorney to seek permission from a judge before making a resubmission, ruling instead that “the power of the grand jury is continuous, so that unfavorable action does not exhaust the authority of that or of another grand jury to examine.” Prosecutors may not even need to alert the second grand jury that the first grand jury returned no true bill: The Justice Department’s Federal Grand Jury Practice Manual states that it “may be appropriate” to inform the new grand jury of such (emphasis added). Suffice to say that the Justice Department has an enormous amount of leeway in deciding whether or not to resubmit a case after a grand jury returns no true bill.
But whether or not the department could try again to seek an indictment of McCabe—if trying again is indeed necessary—is a very different question from whether it would be wise or appropriate or decent to do so. One would hope, of course, that a rebuke of this type—so rare as to be particularly biting—would put an end to the McCabe matter. The department already engineered McCabe’s firing mere days before his retirement. It already conducted a lengthy criminal investigation, endeavored to prosecute him and put the matter in front of a grand jury. If the first grand jury has balked, would it really try for a do-over? One hopes cooler heads would prevail.
Again, we don’t know what happened before the grand jury this week—and it would, of course, be very inappropriate, illegal actually, for the department to give the public the explanation the situation demands. But at the Justice Department, people do know what happened. They know whether at least 12 of 23 grand jurors just told them to stand down.