On any Sharpie-scrawled enemy list adorning Donald Trump’s desk, Andrew McCabe’s name is almost certainly at the top. The former deputy director of the FBI has been the target of no fewer than 49 Trump tweets, as well as the subject of many helicopter-side rants. After all that, Trump paused on Thursday to savor what appeared to be a bad day for his “enemy” with a tweet repeating the claim that charges had been filed against McCabe.
But a letter from McCabe’s attorneys to the U.S. Attorney’s Office in Washington, D.C., that came out later that same day suggests that this particular attempt at using the legal system to persecute a perceived political opponent ran into a hugely embarrassing obstacle: When the DOJ took the case in front of a grand jury, it could not secure an indictment.
Getting a grand Jury to provide an indictment is famously easy. As in, “would indict a ham sandwich” easy. If the letter is accurate in saying that a grand jury returned “no true bill” when confronted with the evidence against McCabe, that’s not just an unusual result; that’s a crushing embarrassment for Barr’s Justice Department and its first attempt at turning “Lock (insert name here) up” from a rally chant to reality.
Back in May, The Washington Post looked at the case that Trump’s team was mounting against McCabe. The charge was that McCabe lied to investigators to mislead them about the release of information related to the probe into Hillary Clinton’s emails. McCabe has repeatedly insisted that he didn’t mislead anyone, but the inspector general—the same IG who recently issued a report shaking a finger at James Comey—concluded that McCabe had broken department rules sufficiently to justify his expulsion from the FBI just hours ahead of the time where he could have retired with a pension.
At that time, McCabe’s attorney made a particularly telling statement about any attempt to indict McCabe: “[We are] confident that, unless there is inappropriate pressure from high levels of the Administration, the U.S. Attorney’s Office would conclude that it should decline to prosecute.” Prescient. Very prescient.
Apparently it did not decline. And there’s every reason to think the U.S. Attorney’s Office moved entirely based on a pile of “inappropriate pressure” applied by Barr, or Trump, or both. And now it seems like they’ve collected a legal rebuke across the nose.
In just the last two months, Trump has referred to McCabe as a “dirty cop,” a “disgrace,” and “a major sleazebag.” But it certainly looks as if Trump is not going to be able to add “indicted” to that list.
It also appears that the DOJ may be caught by the same rule book that kept Robert Mueller from indicting Donald Trump. The letter sent by McCabe’s attorneys reads, “We believe that if the grand jury has indeed voted a no true bill, the Justice Manual compels you to not resubmit the case to the same or a different grand jury.”