NRPLUS MEMBER ARTICLE I n coverage of the Andrew McCabe investigation, there seems to be a lot of adding two plus two and coming up with five.
The New York Times and Washington Post have reported that a grand jury met on Thursday in connection with a probe involving McCabe, the FBI’s former deputy director. As I write this column on Friday evening, no indictment has been returned against McCabe. From this, and what seems to be some hopeful speculation about “hints of the case’s weakness” that could possibly have caused grand jurors to “balk,” the Times and the Post suggest that maybe the grand jury has voted against an indictment.
This supposition has prompted a letter to the Justice Department from McCabe’s attorney, Michael Bromwich — a former colleague of mine who, besides being a skilled and shrewd attorney, is a Democrat and was last seen representing Christine Blasey Ford, Justice Brett Kavanaugh’s accuser. Bromwich says he is hearing “rumors from reporters” about the filing of a “no true bill” — i.e., a grand-jury vote rejecting a proposed indictment of McCabe.
While conceding that he “do[es] not know the specific basis for the rumors,” Bromwich intuits that they must be reliable because the newspapers ran with the story. Mind you, neither the Times nor the Post claims to have been told by any grand jurors that they declined to indict McCabe; nor do they report hearing from any knowledgeable government official that a no true bill was voted. Nevertheless, McCabe’s legal team is demanding that the Justice Department disclose whether an indictment was declined and refrain from seeking an indictment in the future.
This gambit, of course, floats the narrative that the case against McCabe must be crumbling — the media reports spur the Bromwich letter, which spur more media reports, rinse and repeat. But even allowing for the erosion of standards, this is thin gruel for both news reporting and legal claims.
I’ll add more detail presently. To cut to the chase, though, there is no reason at this point to infer that the grand jury has voted against indicting McCabe.
Now, let’s back up.
As I reiterated in a column on Thursday, the criminal probe of McCabe stems, at least in part, from an investigation by Justice Department inspector general Michael Horowitz. That inquest centered on McCabe’s orchestration of a leak to the Wall Street Journal of investigative information — specifically, of the fact that the FBI was investigating the Clinton Foundation. McCabe is alleged to have lied in several interviews by FBI agents. It is a crime to make false statements to investigators. IG Horowitz outlined the false-statements allegations against McCabe in a meticulous 35-page report, filed in February 2018.
As is required when the IG turns up evidence of potential criminal conduct, the matter was referred to the Justice Department for consideration of whether charges should be filed. Because the IG probe and the alleged false statements occurred in Washington, the matter ended up in the United States attorney’s office for the District of Columbia.
There, the U.S. attorney, Jesse Liu, has reportedly decided that there is enough evidence to charge felonies. Bromwich, however, was permitted to appeal Liu’s decision to the Justice Department — specifically, to Jeffrey Rosen, the deputy attorney general. According to media reports, DAG Rosen was unpersuaded; the Justice Department thus advised the McCabe defense team in an email that their appeal has been rejected, and that any further questions should be taken up with U.S. Attorney Liu’s office.
It was assumed when this news broke on Thursday that the Justice Department’s rejection was the last hurdle standing in the way of charges, and therefore that an indictment must be imminent. It has now been reported that, although the grand jury met on Thursday, no indictment was filed.
That, however, is no reason to conclude that an indictment was sought, much less that the grand jury declined to vote one.
Let me begin with the basics. No competent federal prosecutor should ever get a no true bill from a grand jury. In nearly 20 years as a prosecutor, it not only never happened to me; I could count on one hand the number of times I heard of it happening to any other prosecutor in the office, and still have fingers to spare.
This is not because of the old saw that the deck is so stacked against a suspect in grand-jury proceedings that a prosecutor could indict a ham sandwich. To be sure, grand-jury proceedings are very one-sided. Still, there are many cases that grand juries do not like and would not charge. Nevertheless, these cases do not result in no true bills. Instead, there is steady dialogue between the prosecutors and the grand jurors over each case. The latter ask questions and, when they are troubled, convey that fact to the former. Before submitting a proposed indictment, it is customary for the prosecutor to ask whether the grand jurors believe they have heard enough evidence, whether they would like to hear from other witnesses, whether they have other concerns, or whether they would like to consider an indictment. The prosecutor is well aware if the grand jury has doubts about the case; if there are indications that the grand jury is not inclined to vote for charges, the prosecutor simply refrains from presenting an indictment.
Bear in mind, moreover, that a grand jury, unlike a trial jury, is not being asked to find proof beyond a reasonable doubt. Its modest task is to determine whether a significantly lower proof hurdle — probable cause — has been met. Also unlike a trial jury, the grand jury need not be unanimous; federal grand juries have up to 23 members, and only 12 need assent for an indictment to be approved. The grand jurors know they are not being asked to convict anyone; just to determine that there is enough evidence to warrant having a trial, at which the defendant will be given all the due-process protections the Constitution ensures. And double-jeopardy principles are not in play at the grand-jury stage as they are at trial: On the rare occasion that a federal grand jury votes a no true bill, prosecutors are free to re-present the case to the same or another grand jury.
Assuming that the false statements capably outlined in the Horowitz report are the only potential crimes under consideration, it is hard to believe any grand jury could find insufficient probable cause to indict. Even McCabe is not claiming that what he told investigators was true; he seems to be saying he didn’t mean to lie (multiple times). When a suspect has committed all the acts necessary for a penal offense, and the only question is whether he had criminal intent, probable cause is usually a given.
Of course, we do not know that the false statements are the only matters under consideration, or even that McCabe is the only subject of the grand jury’s investigation. It is entirely possible that the grand jury has not yet been asked to indict because relevant conduct is still under consideration — conduct related to McCabe, related to other suspects, or both.
And then there is the matter of prejudice to consider.
Besides the ongoing grand-jury investigation of McCabe’s alleged false statements, the former deputy director is also among the current and former officials who are subjects of another IG probe of abuses of power in the Russia investigation. On Friday evening, IG Horowitz wrote a letter to leaders of the Senate and House Judiciary Committees, explaining that his report is substantially complete and is undergoing a classification review to determine what portions may be disclosed. We can safely assume, then, that the release of that report, which is apt to be explosive, is imminent. Meanwhile, Connecticut U.S. attorney John Durham also has an ongoing investigation into the origins of the Russia investigation. There have been reports that Durham is using a grand jury to gather evidence and testimony.
Why are these other investigations germane to what is happening with the Washington grand jury? Well, sometimes, when a suspect is under scrutiny in multiple investigations, the Justice Department will ask the court to seal any indictments returned by the grand jury. That way, there can be no credible claim that the grand jurors in one case were swayed by allegations filed by another grand jury. Relatedly, sometimes if a grand jury’s investigation has not yet been completed, but a major development in another investigation involving the subject — such as an IG report — is about to occur, the Justice Department will ask the grand jury to file charges, but then seal the indictment. That way, it cannot credibly be said that the grand jury’s decision to indict was swayed by negative publicity surrounding developments in the other investigation.
That is to say, there could be a dozen or more good explanations for why there has been no public announcement of a McCabe indictment. The other investigations could be complicating things. It could be that the Washington grand jury’s investigation is broader in scope than we’ve been led to believe. It could be something as simple as the availability of necessary witnesses, the availability of enough grand jurors to constitute a quorum, or the happenstance that the case is taking more time to present than the defense lawyers and media think it should.
It is certainly possible that, if there were a trial, the false-statements case against McCabe would seem less compelling than Horowitz’s report makes it appear. It is conceivable that the U.S. attorney will decide against charges. Note that in the email to McCabe’s lawyers, the Justice Department said only that his appeal was rejected; DAG Rosen does not appear to have instructed U.S. Attorney Liu to file an indictment, but rather to have left that call up to her. For all we know, Liu could decide not to seek an indictment: Maybe she’ll calculate that a trial jury in Trump-hostile Washington might be too sympathetic to McCabe’s claim that he is being investigated because of a political vendetta; or maybe she’ll prove to be risk-averse regarding a case in which an acquittal would be embarrassing.
Such developments would surprise me, but I wouldn’t be shocked. What would shock me, though, is if the experienced federal prosecutors handling McCabe’s case bungled their way into a no true bill. If I had to bet, I think it’s unlikely McCabe escapes indictment. If he does, though, it will be because his lawyers talked prosecutors out of seeking one, not because the grand jury declined to charge him.