On the Mystery of the McCabe Grand Jury

FBI Deputy Director Andrew McCabe in February 2017. (Flickr/Eli Alford, DOJ/EOUS)

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.

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.

Again, we don’t know what happened before the grand jury this week—and it would, of course, be very inappropriate, illegal actually, for the department to give the public the explanation the situation demands. But at the Justice Department, people do know what happened. They know whether at least 12 of 23 grand jurors just told them to stand down.

Article URL : https://www.lawfareblog.com/mystery-mccabe-grand-jury

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