Former FBI Deputy Director Andrew McCabe’s lawyer has written federal prosecutors demanding to know whether his client will be charged, following reports a grand jury meeting in Washington, D.C. failed to return an indictment.
The pushback follows published reports Thursday that a federal grand jury meeting in secret left without issuing an indictment. The legal pressure also comes as Inspector General Michael Horowitz completed his review of alleged FBI surveillance abuse during the 2016 campaign.
A draft review has been presented to Attorney General William Barr, who has set in motion a separate wide-ranging review of FBI conduct during the 2016 presidential election.
‘We have now begun the process of finalizing our report by providing a draft of our factual findings to the department and the FBI for classification determination and marking,’ Horowitz wrote congressional committees Friday. ‘This step is consistent with our process for reports such as this one that involve classified material.’
A U.S. attorney has recommended going ahead with prosecution of former FBI Deputy Director Andrew McCabe. An inspector general found he lacked candor during interviews with investigators during a leak investigation
According to the IG, investigators ‘reviewed over one million records and conducted over 100 interviews, including several of witnesses who only recently agreed to be interviewed,’ Fox News reported.
In the McCabe matter, his lawyer pressed the deputy attorney general following reports that prosecutors have denied an appeal from McCabe’s team and plan to bring charges, even as a grand jury reportedly was called back and left without issuing an indictment.
‘We have no independent knowledge of whether the report is accurate but for present purposes we assume the grand jury may have voted a no true bill,’ wrote Michael Bromwich, a lawyer representing McCabe to federal prosecutors.
‘At a minimum … it is clear that no indictment has been returned,’ he wrote.
He advised that prosecutors ‘should not resubmit this case’ to a new grand jury, which prosecutors may do under agency guidelines. Bromwich cites guidelines that the government shouldn’t seek a new grand jury unless it believes it has enough evidence to gain a conviction.
Grand juries return indictments in the vast majority of cases where prosecutors are seeking them, so the failure to return one could buttress McCabe’s team, who argue that he was fired under political pressure rather than on the merits.
‘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,’ his lawyers wrote in a letter published by the New York Times and other outlets.
Justice Department Inspector General Michael Horowitz has completed a draft report of his investigation into alleged FBI surveillance in the 2016 presidential elections
President Trump has attacked McCabe on Twitter, as well as FBI officials he says were engaged in a ‘witch hunt’
The U.S. Justice Department has been investigating McCabe, the FBI’s former No. 2 official, for more than 1-1/2 years over allegations he misled internal investigators about his decision to share internal communications with a reporter at the height of the 2016 presidential election.
Prosecutors and senior officials within the Justice Department, including Deputy Attorney General Jeffrey Rosen, have recommended moving forward with criminal charges, according to sources familiar with the investigation.
But they might have encountered another hurdle. The Washington Post reported on Thursday that a federal grand jury investigating the case had been called back to consider evidence, but had left without returning an indictment.
Grand juries are used in the U.S. legal system to assess the validity of possible criminal charges in major cases.
To obtain an indictment, U.S. prosecutors typically need to convince the grand jury there is probable cause that a crime has been committed, which is a lower legal standard than that needed to secure a guilty verdict at trial. Proceedings are conducted in secret.
The Justice Department and the U.S. Attorney’s Office for the District of Columbia, which is handling the case, declined to comment.
In an email shared with reporters, McCabe’s lawyer, Michael Bromwich, urged U.S. Attorney Jesse Liu to submit a report saying whether or not the grand jury had recommended criminal charges.
He also said prosecutors should not try to win grand-jury approval a second time if they have failed.
‘If the grand jury voted not to approve charges, it did not find probable cause. Therefore, it is simply not reasonable to believe that a trial jury would find Mr. McCabe guilty,’ Bromwich wrote.
McCabe was fired in March 2018, just hours before he was due to retire, after the department’s internal watchdog issued a report saying he misled investigators who were trying to determine whether he improperly shared information with a news reporter during the 2016 presidential election.
McCabe has said he tried to answer questions about the incident truthfully and clarified his responses when he thought he had been misunderstood.
McCabe has endured years of criticism by President Donald Trump after playing a key role in the investigation into the Trump campaign’s ties to Russia in the 2016 election.
McCabe has said those attacks are part of an effort to undermine law enforcement and intelligence professionals. He has sued the Justice Department, arguing that he was fired for political reasons.