McCabe's counsel presses US attorney on whether grand jury decided not to indict

Andrew McCabeAndrew George McCabeThe FBI should turn off the FARA faucet John Durham's endgame: Don't expect criminal charges Carter Page sues over surveillance related to Russia probe MORE's counsel is pressing the Department of Justice (DOJ) on whether a grand jury has declined to bring charges against the former FBI deputy director, arguing such a move would cast doubt on the government's case against him.

McCabe lawyer Michael Bromwich wrote a Thursday email to U.S. Attorney for the District of Columbia Jessie Liu citing coverage of the case from The New York Times and The Washington Post and questioning whether a grand jury had declined to vote on an indictment.

"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," Bromwich wrote, referring to a procedure to dismiss charges.


"The only fair and just result is for you to accept the grand jury's decision and end these proceedings," Bromwich argued in the email, a copy of which was obtained by The Hill.

Bromwich, pointing to federal rules governing criminal prosecution, asked Liu to request that the grand jury submit such a report to the court in the interest of transparency.

He also argued that the U.S. attorney should not resubmit the case to the grand jury or another grand jury, pointing to the time and resources given to this investigation.

"If the evidence presented by your office was insufficient to convince 12 members of the grand jury to find probable cause to believe that Mr. McCabe had committed any crimes, no attorney can reasonably believe that 'the admissible evidence is sufficient to obtain a guilty verdict by an unbiased trier of fact,'" Bromwich argued. "If the grand jury voted not to approve charges, it did not find probable cause."

McCabe's lawyers weighed in after Liu recently recommended moving forward with charges against McCabe after the DOJ rejected an appeal from the former No. 2 FBI official.

The former top law enforcement official had pushed back on the prospect of charges after an internal DOJ watchdog concluded that he "lacked candor" with federal investigators, according to a source close to his legal team.

“The 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," reads an email sent from the DOJ to the legal team, according to the source.

McCabe was fired in March 2018 by then-Attorney General Jeff SessionsJefferson (Jeff) Beauregard SessionsMedia leaders to meet with Garland to discuss leak investigations Trump DOJ subpoenaed Apple for records of White House lawyer: report Pelosi: Trump DOJ seizure of House Democrats' data ' goes even beyond Richard Nixon' MORE after DOJ Inspector General Michael Horowitz provided a recommendation to an internal FBI office that McCabe was not forthcoming during interviews with federal investigators and that he "lacked candor — including under oath — on multiple occasions."

Indeed, Sessions said at the time that the FBI's Office of Professional Responsibility and Office of Inspector General had found McCabe made an unauthorized disclosure to the news media in 2016 by allowing FBI officials to speak with reporters about an investigation into the Clinton Foundation.

McCabe's ouster last year came just days before the No. 2 FBI official was scheduled to retire, stripping him of the pension he expected to receive after more than 20 years at the bureau.

Last month, McCabe sought to challenge the basis of his firing, alleging in a lawsuit against the FBI and DOJ that his termination from the bureau was a “politically motivated” move that stemmed from President Trump's attacks against him and other DOJ officials.

In the court documents, McCabe alleges Trump was behind his firing, claiming that he forced the hands of other officials at the DOJ including Sessions, Horowitz and Deputy Attorney General Rod Rosenstein to remove him. And as a result, McCabe says this caused harm to his “reputation, professional standing, and dramatically reduced his retirement benefits” after “two decades of unblemished and non-partisan public service.”

House Republicans and other White House allies have long alleged misconduct among the top brass of the FBI and urged disciplinary action against officials such as McCabe and others.

McCabe has also repeatedly been the target of the president's attacks, and GOP ire towards him recently flared after CNN announced last month that McCabe was signing on as a paid commentator.