It's unclear how long prosecutors in Washington have been bringing evidence and witnesses before a grand jury to build their case against McCabe, but grand jurors heard from at least one witness that would have undercut the Justice Department's attempts to build a case around a false statements charge.
Lisa Page, a former senior aide to McCabe and the official he directed to disclose information about the Clinton Foundation probe to the newspaper, told a grand jury that McCabe had no motive to lie about the disclosure because he was authorized as the FBI's number two to make them, according to a person familiar with the situation.
Because grand juries are secret, it is hard to verify what has happened - but that at least one known witness has testified in front of a grand jury about the McCabe investigation and that there has been speculation for months with no indictment obtained, I think Rachel Maddow's story is likely correct.
The September 23 article from LawFare concludes:
So, what does this mean today? If the news is to be taken at face value, there is a possibility that the grand jury investigating Andrew McCabe has returned “no true bill.” Would a news report to that effect be prima facie evidence that the government has violated Rule 6(e)?
Maybe. To begin with, as I read the reporting, the return of no true bill has yet to be confirmed explicitly. We can infer that fact from the publicly reported promise of an imminent indictment, the meeting of the grand jury, and the failure of any true bill of indictment to be publicly returned. Such an event, if it has occurred, and if it were publicly disclosed would clearly satisfy the first prong of the prima facie test for a violation of Rule 6(e). The presentation of a bill of indictment and the vote on it would manifestly be matters that occurred before the grand jury.
To date, the news articles are likewise ambiguous as to the second prong of the prima facie case—that the information disclosed was disclosed by an attorney or agent of the government. None of the news articles that I’ve read make such a claim explicitly. To be sure, it is a reasonable inference that government attorneys are the source of this information, as they are the only people likely to have the information in the first place. And that inference is probably enough to make out a prima facie case, whose proof standard is, after all, rather low.
And so, even at this juncture, it seems to me that the chief judge supervising the grand jury has grounds to inquire if she wishes to do so. The case for doing so will be stronger still if (or when) a more well-sourced news report is published. And in that case, the show cause proceedings will be interesting indeed.
= new reply since forum marked as read
