A few days ago, a mysterious and even momentous non-event occurred. Or event didn’t occur. To recap, Andrew McCabe is a former deputy director of the FBI, and was responsible for the investigation of the Clinton email server incident. Later, after Director Comey’s firing and Trump’s learning that McCabe’s wife was a Democrat who had run for office, and lost, McCabe was fired days before his retirement. Then federal prosecutors began to investigate him for releases of information concerning the Clinton Foundation, and for possibly lying to FBI investigators about the matter.
On September 12th, an indictment from a grand jury was expected. And … nothing happened. Quinta Jurecic and Benjamin Wittes of Lawfare speculate:
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. …
… that the grand jury actually declined to indict McCabe, instead returning no true bill.
This would be a very big deal—a huge rebuke to the Justice Department’s conduct of this case. Grand juries do not need to be unanimous. They need to have a quorum of their 23 members, and they require only a majority of at least 12—that is, a majority of the full grand jury, no matter how many grand jurors are present—to return an indictment. They also don’t proceed by proof beyond a reasonable doubt, the standard at trial. Instead, an indictment issues on the lower standard of probable cause. In other words, if this is really what happened, it would mean that the Justice Department couldn’t even persuade a majority of people who have heard from all of the witnesses that there is even probable cause to proceed against McCabe.
Given the vociferousness of McCabe in defense of his conduct and the apparent failure of the grand jury to deliver a true bill, I am beginning to suspect the investigation into McCabe’s conduct was biased, or the results were misinterpreted, deliberately or not, by either AG Barr or President Trump.
As Wittes and Jurecic point out, though, this is all speculative at this point.
