WASHINGTON – Former acting FBI director Andrew McCabe’s legal team has been notified that the Justice Department authorized prosecutors to seek an indictment against him for lying to investigators, according to two people familiar with the matter, though it remains unclear whether McCabe will be charged.
McCabe’s team was notified of Deputy Attorney General Jeffrey Rosen’s decision in a message Wednesday, which said, “The 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,” one person familiar with the matter said.
McCabe’s team was told last month that line prosecutors had recommended charges, and later, that District of Columbia U.S. Attorney Jessie K. Liu had endorsed that decision, a person familiar with the matter said. Last month, McCabe’s team had appealed to Rosen in what was considered one of the final efforts to persuade officials not to move forward and seek an indictment from a grand jury. The legal team had been waiting to hear back.
The notification comes as a federal grand jury investigating McCabe was suddenly recalled this week after a months-long hiatus – an indication its members would likely be asked soon to consider bringing charges. But the panel was let go Thursday with no immediate signs of an indictment – a sign they might have balked, been asked to return later or filed a determination under seal.
To bring an indictment, prosecutors would have to convince 12 of the 23 grand jurors to sign onto the decision. If grand jurors turn them down, it is possible for prosecutors to call in a new group, though they would then have to start the process over.
The decision, whenever it is made clear, is likely to inflame partisan divisions and once again thrust the Justice Department to the center of a political combat zone.
McCabe authorized the FBI to begin investigating President Donald Trump and has long been a target of the commander in chief’s ire. His defenders are likely to view any charges against him as the most sinister form of Trump’s revenge.
McCabe, 51, was a well-regarded FBI veteran who ascended to become the bureau’s No. 2 official at what would turn out to be a particularly tenuous time. He was involved in supervising two of the bureau’s most politically sensitive and high-profile cases: the investigation into Hillary Clinton’s use of a private email server and the inquiry into possible coordination between the Trump campaign and Russia to influence the 2016 election.
When Trump abruptly fired FBI Director James Comey in May 2017, McCabe took over for him on an acting basis.
The allegations against McCabe stem from the fall of 2016, a particularly fraught period in the bureau when the Clinton email case was wrapping up and the Russia investigation – largely unbeknown to the public – was taking off. Around that time, a Wall Street Journal report detailed tension inside the FBI and Justice Department over the Clinton email case and a separate investigation into the Clinton family foundation.
McCabe now acknowledges he authorized two FBI officials to speak to a reporter for that story. But he initially denied having done so when FBI officials – and, later, the inspector general’s office – tried to determine who might have spoken to the media. The inspector general accused McCabe of lying at least four times, three of them under oath, and even misleading Comey, his boss.
McCabe has disputed he did anything wrong, and his lawyer has said 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.”
Based on the inspector general’s findings, then-Attorney General Jeff Sessions fired McCabe from the bureau in March 2018.
McCabe said at the time that the move was politically motivated – part of an effort to taint the FBI and the special counsel investigation. He has since filed a lawsuit, alleging his firing was part of a plot to purge the Justice Department of those who would not be loyal to Trump.
Trump has frequently and publicly attacked McCabe, suggesting he needed to be both fired and investigated by special counsel Robert S. Mueller III. After Trump removed Comey as FBI director, it was McCabe who authorized the bureau to begin investigating the president’s ties to Russia.
Michael Horowitz, the inspector general, referred his investigation to the U.S. attorney’s office for the District of Columbia and released his report on McCabe in April 2018. Prosecutors began using a grand jury, a sign of the inquiry’s seriousness. Internally, though, there was significant discussion about how best to proceed. Two assistant U.S. attorneys at some point left the case – and one left the U.S. attorney’s office entirely. That person had concerns about how it was being handled, according to people familiar with the matter.
McCabe, meanwhile, wrote a book that aired out unflattering details about his interactions with Trump, and CNN hired him as a contributor.