What Happened To The Government's Case Against McCabe?

 Donald Trump has never respected the way government works, or the independence of the Justice Department. He has wanted to use the Justice Department to punish the people he views as enemies (like Hillary Clinton, James Comey, and many others). He even put a yes-man in charge of the Justice Department (William "Whitewash Willie" Barr) to get that done.

But so far, he has only been able to get government attorneys to try to take only one person to a trial - Andrew McCabe (who was acting director of the FBI after Comey was fired by Trump). Now it looks like even that one case may not succeed.

Here's part of how Quinta Jurecic and Benjamin Wittes describe what is happening to the case against McCabe at Lawfare:

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.