A lawyer for Andrew McCabe asked federal prosecutors Thursday whether a grand jury declined to indict the former FBI deputy director this week, when members of the grand jury reportedly reconvened as part of a media leak investigation.
In an email to Jessie Liu, the U.S. attorney for Washington, D.C., McCabe lawyer Michael Bromwich referenced rumors from reporters that the grand jury in McCabe’s case declined indictment.
Bromwich wrote that he had no direct knowledge if the rumors were true, but he argued that if they were, the government should drop its case against McCabe, who is currently a CNN analyst.
“We heard rumors from reporters starting this morning that the grand jury considering charges against Mr. McCabe had declined to vote an indictment,” Bromwich wrote in the email to Liu and other prosecutors, according to The New York Times.
“We have no independent knowledge of whether the reporting is accurate but for present purposes we assume that the grand jury may have voted a no true bill.” (RELATED: CNN’s Jeffrey Toobin Defends CNN’s Andrew McCabe)
Bromwich asserted that the government should drop its case if the grand jury declined an indictment because that prosecutors would have a hard time reaching a higher standard of guilt at any future trial.
“If the grand jury voted not to approve charges, it did not find probable cause,” Bromwich wrote.
“Therefore, it is simply not reasonable to believe that a trial jury would find Mr. McCabe guilty of any charges employing a far more rigorous and exacting standard — beyond a reasonable doubt.”
Two sources familiar with the investigation told the Daily Caller News Foundation on Thursday that the Justice Department had declined an appeal that Bromwich made to Deputy Attorney Jeffrey Rosen last month to shut down the investigation of McCabe without charges. Bromwich requested the meeting after Liu recommended charges against McCabe.
The Washington Post reported Thursday that the grand jury hearing McCabe’s case was called back this week after months on hiatus. According to The Post, there were no immediate signs that the grand jury returned an indictment against McCabe.
To bring charges in a federal case, at least 12 members of a 23-person grand jury must vote for indictment.
The grand jury could also have returned an indictment that was placed under seal, but Bromwich indicated in his email that line prosecutors told him in a conversation on Thursday that the grand jury has yet to return an indictment.
“At a minimum, based on our discussion with Mr. Cooney and Ms. Gaston this afternoon, it is clear that no indictment has been returned,” Bromwich wrote, referring to two prosecutors working in Liu’s office.
The Justice Department fired McCabe on March 16, 2018 after the agency’s inspector general and FBI’s Office of Professional Responsibility determined that the 21-year FBI veteran displayed a lack of candor at least four times during interviews about authorizing leaks of information to the media in October 2016.
McCabe instructed his general counsel, Lisa Page, to disclose to a Wall Street Journal reporter that the FBI was investigating the Clinton Foundation.
McCabe, who sued the FBI and Justice Department on Aug. 8 over his firing, has maintained his innocence.
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