September 13, 2019

ALL COMEDY IS CONSERVATIVE:

On the Mystery of the McCabe Grand Jury (Quinta Jurecic, Benjamin Wittes, September 13, 2019, LawFare)

McCabe's indictment had been expected on charges related to alleged lies to internal Justice Department investigators about his contacts with the media in 2016. On Thursday, Sept. 12, the New York Times and the Washington Post reported that the deputy attorney general had rejected McCabe's final appeal within the department to avoid prosecution. According to the Post, McCabe received a communication from the Justice Department informing him that "[t]he 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." The Times writes that the decision was made by Deputy Attorney General Jeffrey Rosen, and that Rosen's top aide, Ed O'Callaghan, reached out to McCabe's team on the matter.

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.

According to the Post, rather, the grand jury was reconvened on Thursday--but no public charges against McCabe were filed. Now, McCabe's lawyer, Michael Bromwich, has written to U.S. Attorney Jessie Liu, whose office is handling McCabe's case, stating that the defense team has heard "rumors from reporters ... that the grand jury considering charges against Mr. McCabe had declined to vote an indictment"--though the defense has "no independent knowledge of whether the reporting is accurate." Bromwich added that "based on our discussion with" government lawyers, "it is clear that no indictment has been returned." [...]

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 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.

At the end of the day, it's just a prosecutor trying to curry favor and get the promotion she was denied because the GOP doesn't trust her.

Posted by at September 13, 2019 5:27 PM

  

« THE TIGHTENING NOOSE: | Main | A SHARED HATRED OF MUSLIM DEMOCRACY: »