Andrew McCabe’s legal team asks Justice Dept. if grand jury rejected charges in his case

The legal group for Andrew McCabe has requested federal prosecutors in the District whether a grand jury had rejected their bid to indict the FBI’s former performing director on costs of lying to investigators, pointing to media inquiries and information bills detailing a sequence of unusual activities in the case.

In emails Thursday to U.S. Attorney Jessie Liu and different prosecutors in her office, McCabe legal professional Michael Bromwich said his group had acquired media inquiries about grand jurors declining to bring the case, and pointed to posted reports describing how even after the Justice Department permitted prosecutors to are trying to find charges, no indictment used to be returned.

Bromwich stated he had “no unbiased information of whether the reporting is accurate” but advised that if it was, prosecutors ought to abandon their effort. He wrote that — primarily based on a Thursday dialogue with federal prosecutors — it “is clear that no indictment has been returned.”

McCabe’s criminal team provided The Washington Post with a copy of the emails. Spokespersons for the Justice Department and the U.S. attorney’s office declined to comment.

“In substance, the choice whether or not to resubmit a case, following a no actual bill, to the identical grand jury — or put up the case to a new grand jury — is entrusted to your discretion,” Bromwich wrote. “We agree with that for the reasons we have to you and the Deputy Attorney General in man or woman and in writing, you must not resubmit this case.”

A “no proper bill” case refers to a situation when grand jurors are asked to deliver an indictment and decline to do so.

To deliver expenses towards McCabe, prosecutors would have to convince 12 of 23 grand jurors that there was likely cause he had committed a crime — a low felony bar. This week, it seemed prosecutors had been on song to do so. The panel that had been investigating McCabe was once resummoned after a months-long hiatus, and McCabe was informed Thursday that his remaining bid to persuade the deputy legal professional usual that charges have to no longer be added had failed.

But grand jurors got here and went with no public indictment being returned. That ought to be a sign they balked, even though it is additionally viable they have filed a determination underneath seal or may want to be asked to return later.

McCabe and his crew have waged an aggressive behind-the-scenes war to dissuade prosecutors from transferring ahead with the case. Last month, after being informed that line prosecutors had recommended moving ahead with charges, they met with Liu, and later — after Liu recommended prosecutors’ advice — with Deputy Attorney General Jeffrey Rosen. They had been waiting to hear back from the No. 2 Justice Department authentic when the grand jury used to be all at once introduced back in this week.

Bromwich stated some of that effort, and mentioned that if grand jurors declined to convey an indictment, Justice Department policies would advocate them no longer to continue pursuing the case. The policies, Bromwich wrote, name for prosecutors to carry expenses only if they believe “the admissible evidence is enough to attain and preserve a guilty verdict via an unbiased trier of fact.”

“If the proof with the aid of your office was inadequate to persuade 12 members of the grand jury to locate in all likelihood reason to believe that Mr. McCabe had committed any crimes, no attorney can moderately consider that ‘the admissible evidence is ample to achieve a guilty verdict via an unbiased trier of fact,’ ” Bromwich wrote. “If the grand jury voted now not to approve charges, it did no longer find probable cause. Therefore, it is absolutely not practical to trust that a trial jury would locate Mr. McCabe responsible of any prices using a a long way extra rigorous and exacting popular — beyond a real looking doubt.”

It is rare, however now not unheard of, for grand juries to decline to indict. In a well-known case from the 1980s, a grand jury declined to indict former professional tennis player Vitas Gerulaitis in a drug case, after his legal professional waged a public campaign to present his aspect of matters and stated he anticipated prices before they have been filed. In 1993, a grand jury declined to indict U.S. Sen. Charles S. Robb of Virginia on obstruction and wiretapping charges — although that case had an unusual wrinkle in that the Justice Department’s No. 2 reliable advised grand jurors explicitly that the selection to indict was once theirs alone.

A grand jury also famously declined to indict police officer Darren Wilson in the fatal capturing of unarmed black youngster Michael Brown in Ferguson, Mo., in 2014.

Those in legal circles regularly shaggy dog story that prosecutors can get a grand jury to “indict a ham sandwich” due to the fact the popular for returning an indictment is low, and because protection attorneys are now not allowed to existing grand jurors their facet of a case. When a grand jury fails to return an indictment, there is on occasion speculation that it is because prosecutors did no longer try very aggressively to persuade the panel.

According to Justice Department statistics, there had been simply 5 “no real bill” instances again by way of federal grand juries from October 2012 through September 2013, the remaining year for which data is publicly handy — in contrast with nearly 86,000 prosecutions in federal district courts that year.

Even if a grand jury rejected charges, it is possible the Justice Department could proceed pursuing the case, perhaps with new proof or a new grand jury, though the preceding grand jury’s choice would nearly truly impede that effort and any future trial.

McCabe, 51, was once worried in supervising two of the bureau’s most politically sensitive cases: the investigation of Hillary Clinton’s use of a private electronic mail server and the inquiry into possible coordination between the Trump marketing campaign and Russia to impact the 2016 election.

The allegations against McCabe stem from the fall of 2016, a specifically fraught duration in the bureau when the Clinton electronic mail case was once wrapping up and the Russia investigation used to be gaining traction. A Wall Street Journal document posted round that time precise anxiety interior the FBI and Justice Department over the Clinton e-mail case and a separate investigation of the Clinton family foundation.

McCabe has recounted he licensed two FBI officials to speak to a reporter. But he at the beginning denied having done so when FBI officers — and, later, the inspector general’s workplace — tried to determine who would possibly have spoken to the media.

The inspector widely wide-spread decided McCabe lied 4 instances to investigators, a feasible federal crime, regarding his contacts with contributors of the media. Based on those findings, Attorney General Jeff Sessions fired McCabe from the FBI.

Prosecutors began the use of a grand jury closing 12 months after the Justice Department inspector well-known referred his investigation to the D.C. U.S. attorney’s office.