McCabe has been under investigation for allegedly lying to FBI officials about his contacts with the media during the 2016 election. McCabe’s legal team was notified this week that its appeals to have the case dropped had been rejected, and that prosecutors had been given the green light to seek an indictment. The grand jury was then reportedly called back to meet — but no indictment was forthcoming.
Grand jury proceedings are secret, so we can’t know for certain what happened. It is possible that grand jurors returned an indictment under seal, but because the investigation is already public, there would be no obvious reason to do so. They could have simply adjourned to return and finish their work another day, though it seems likely their investigative work is complete.
But if they did vote not to indict — returning what is called a “no true bill” — it would be a remarkable development, and a remarkable rebuke to prosecutors.
It is extremely rare — indeed, almost unheard of — for a grand jury to fail to return an indictment when asked to do so by a prosecutor. Investigations in which prosecutors ultimately determine they cannot make a case are usually closed down without asking the grand jury to vote. But if, at the conclusion of the investigation the prosecutor believes the case has merit and asks the grand jury to indict, it almost always agrees. The bar for indictment is not high, because the grand jury is not deciding guilt or innocence, merely whether there is a basis for the case to proceed. Unlike at trial, where prosecutors must prove guilt beyond a reasonable doubt to a unanimous jury to gain a conviction, only 12 of the 20 or so members of a grand jury must vote to indict, and they need only find probable cause that the crime was committed.
That’s why it’s such a big deal if prosecutors asked the grand jury to indict McCabe and it refused. The grand jury hears only the government’s evidence. The defense does not have the right to be present, to cross-examine witnesses, or to argue its case. If, on that one-sided playing field, prosecutors cannot convince even a bare majority of the grand jurors that there is probable cause, how in the world would prosecutors ever prove guilt beyond a reasonable doubt to a unanimous jury during a trial in which the defense will be actively participating?
If the McCabe grand jury did return a no true bill, neither the Constitution nor Justice Department policy would absolutely prohibit prosecutors from presenting the case to another grand jury. But doing so would be extremely unusual. As McCabe’s lawyers point out, Justice Department policy would require prosecutors to conclude they likely have the necessary evidence to obtain a guilty verdict at trial. It’s difficult to see how they could reach that conclusion if they indeed failed to persuade the grand jury to find probable cause.
If prosecutors did seek an indictment from a different grand jury despite a no true bill, it would raise further concerns about a Justice Department already under suspicion. Consider the recent prosecution of former Obama White House counsel Gregory B. Craig. Prosecutors in New York had declined to bring that case, but prosecutors at the Justice Department picked it up and indicted him. It only took the jury a few hours to find Craig not guilty after his recent trial, and some have suggested politics played a role in reviving the prosecution. Attorney General William P. Barr has come under severe criticism himself for his apparent efforts to “spin” the report of Special Counsel Robert S. Mueller III to make it sound more favorable to the president. Trump routinely calls for the investigation and prosecution of political opponents, and his supporters still chant “lock her up” at his rallies.
Using criminal prosecution as a political weapon is the stuff of totalitarian regimes. If the Justice Department develops that kind of reputation, the damage may be irreversible. If there was a no true bill, that should be the end of the case.