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A lawyer for former FBI deputy director Andrew McCabe has raised the possibility that a federal grand jury in Washington, D.C., has refused a request by prosecutors to indict McCabe on charges of lying to federal investigators.
In a letter to Jessie Liu, the U.S. Attorney for the District of Columbia, McCabe's lawyer Michael Bromwich said he and other lawyers had heard rumors from reporters that the grand jury reviewing evidence related to McCabe "had declined to vote an indictment" of McCabe, a critic of President Donald Trump.
If that is the case, McCabe's lawyer said, he urged Liu "not to resubmit this case" asking this grand jury or another one to indict McCabe.
"At a minimum, based on our discussion with [prosecutors in Liu's office] this afternoon, it is clear that no indictment has been returned," Bromwich wrote in a letter that McCabe's defense team released to reporters.
It is very rare — but not unheard of — for a grand jury not to indict a person when a prosecutor asks them to do so. To criminally indict a person, at least 12 members of a 23-member grand jury must vote to issue a so-called "true bill."
Bromwich noted in his letter that Justice Department guidelines say that a prosecution should be recommended if there is belief that a person committed a crime and that the admissible evidence "will probably be sufficient to obtain and sustain a conviction."
"We believe that given the length of this investigation, and the resources devoted to it, this is not a case where authorizing resubmission of the case to a grand jury is consistent with this standard," Bromwich wrote.
"If the evidence presented by your office was insufficient to convince 12 members of the grand jury to find probable cause to believe that Mr. McCabe had committed any crimes, no attorney can reasonably believe that 'the admissible evidence is sufficient to obtain a guilty verdict by an unbiased trier of fact.' "
The letter came hours after sources said the Justice Department had told McCabe's lawyers that prosecutors were refusing to grant their request that the department abandon its move toward seeking an indictment of McCabe from the grand jury.
As a rule, when prosecutors decline such a request, they then seek — and usually obtain — an indictment from grand jurors.
Kadiya Korama, a spokeswoman in Liu's office, declined to comment on the claims in the letter, but added, "If there was an indictment we would have issued a press release along with it."
A Justice Department spokeswoman did not immediately respond to CNBC's request for comment.
McCabe, 51, served as acting director of the FBI after Trump fired James Comey in 2017.
McCabe was fired by then-Attorney General Jeff Sessions in March 2018, a day before his planned retirement, denying him his full pension.
The Justice Department has said he was fired because he broke FBI rules by improperly disclosing information to journalists related to an investigation into Hillary Clinton.
A Justice Department inspector general report later found McCabe had "lacked candor, including under oath" in describing those disclosures to investigators.
McCabe disputed the report's conclusions. Last month, he sued the Justice Department over his firing, claiming it was "politically motivated and retaliatory."
Trump has repeatedly criticized McCabe, whom he has blamed, along with Comey, for what he has called a baseless investigation into whether Trump's campaign conspired with Russians to affect the outcome of the 2016 presidential election.