The presence of the grand jury shows prosecutors are treating the matter seriously, locking in the accounts of witnesses who might later have to testify at a trial. But such panels are sometimes used only as investigative tools, and it remains unclear if McCabe will ultimately be charged.
A spokesman for the U.S. attorney’s office in D.C., which has been handling the probe, declined to comment.
Michael Bromwich, a lawyer for McCabe, said in a statement after this report was published online that he had been confident McCabe would not be charged, absent “inappropriate pressure from high levels of the Administration.”
“Unfortunately, such pressure has continued, with the President targeting Mr. McCabe in numerous additional tweets,” Bromwich said. The lawyer also raised questions about the timing of the news report on the grand jury.
“Today’s leak about a procedural step taken more than a month ago — occurring in the midst of a disastrous week for the President — is a sad and poorly veiled attempt to try to distract the American public,” Bromwich said. “We remain confident that a thorough review of the facts and circumstances related to this matter will demonstrate that there is no basis on which criminal charges should be brought.”
The investigation into McCabe is as politically charged as they come, and a decision to prosecute him — or not — will draw significant criticism either way.
McCabe — who briefly took command of the FBI after James B. Comey was fired last year — has been a frequent target of criticism from President Trump. His comments, sometimes urging that McCabe be investigated, have offered significant support for McCabe’s argument that he is being treated unfairly and the examination of him is tainted by partisanship.
The special counsel’s office, though, has charged several former Trump campaign officials for allegedly misleading investigators examining Russian interference in the 2016 presidential election. If the Justice Department were to decline to take up the case against the FBI’s former No. 2 official, that could fuel outrage from conservatives who assert that federal law enforcement has been unfairly aggressive toward their party. Using a grand jury could give federal prosecutors some political cover to argue they pursued the case using the most forceful tools available to them and still came up empty-handed.
The allegations against McCabe come largely from Justice Department Inspector General Michael E. Horowitz, whose office concluded in a detailed report McCabe lied at least four times, three of them under oath, and he approved a media disclosure to advance his personal interests over those of the Justice Department.
Attorney General Jeff Sessions fired McCabe from the FBI in March — a little more than 24 hours before McCabe was set to retire. McCabe derided the move, which cost him a significant portion of his retirement benefits, as one meant to slander him and undermine special counsel Robert S. Mueller III’s investigation. McCabe launched an online campaign to raise money for his legal defense, collecting more than a half-million dollars in less than a week.
At that time, the public knew only the broad outlines of what Horowitz had discovered. In mid-April, the inspector general made public his damaging report. Horowitz referred his findings to the U.S. attorney’s office in D.C., which at some point launched its own investigation into the former deputy director’s conduct.
McCabe’s lawyer said previously the standard for a referral was “very low.”
The inspector general’s investigation of McCabe focused largely on interactions that he authorized other FBI officials to have with a Wall Street Journal reporter in October 2016 and what McCabe would later tell investigators about those interactions.
The reporter — Devlin Barrett, who now works at The Washington Post — was preparing a story on internal tension inside the FBI and the Justice Department over two investigations related to Hillary Clinton. McCabe, apparently concerned the story would cast him as trying to shut down one of the probes, authorized the FBI’s top spokesman and an FBI lawyer, Lisa Page, to talk with the reporter for the story.
Page has since become more well known for the anti-Trump texts she exchanged with another FBI agent. In some of those texts, which the inspector general reviewed, she mentioned her conversation with Barrett.
Such interactions with the media, known as background conversations, are commonplace in Washington, and McCabe had the authority to okay them. But the inspector general concluded his doing so was meant to advance his own interests, and that was inappropriate.
Perhaps more problematically, the inspector general also concluded McCabe lied about having told Comey about his actions and to FBI and inspector general investigators who would later explore the matter. Lying to federal investigators is a crime that can carry a possible five-year prison sentence.
McCabe’s legal team has said previously he did not intentionally deceive anyone — a point prosecutors would have to prove were they to bring a case — and his statements to investigators “are more properly understood as the result of misunderstanding, miscommunication and honest failures of recollection based on the swirl of events around him, statements which he subsequently corrected.”
They have also disputed Comey’s account of his interactions with McCabe, asserting Comey knew McCabe was authorizing engagement with reporters. Prosecutors interviewed Comey in the case earlier this year.