From: Michael Bromwich <⬛⬛⬛⬛⬛⬛⬛⬛⬛>

Date: Thu, Sep 12, 2019 at 9:37 PM

Subject: Fwd: Call
To: Liu, Jessie (USADC) <⬛⬛⬛⬛⬛⬛⬛⬛⬛>
Cc: David Schertler <⬛⬛⬛⬛⬛⬛⬛⬛⬛>, O'Callaghan, Edward C. (ODAG) < ⬛⬛⬛⬛⬛⬛⬛⬛⬛>,
Cooney, Joseph (USADC) <⬛⬛⬛⬛⬛⬛⬛⬛⬛>, Gaston, Molly (USADC) <⬛⬛⬛⬛⬛⬛⬛⬛⬛>

Dear Jessie:

As we note in our email to JP Cooney and Molly Gaston below, we heard rumors from reporters
starting this morning that the grand jury considering charges against Mr. McCabe had declined
to vote an indictment. We do not know the specific basis for the rumors, but they were credible
enough that both the NY Times and Washington Post published stories suggesting that the
grand jury may have declined to vote in favor of
charges. https://www.nytimes.com/2019/09/12/us/politics/andrew-mccabe-
fbi.html?searchResultPosition=1. https://www.washingtonpost.com/national-security/justice-
dept-authorized-prosecutors-to-charge-andrew-mccabe/2019/09/12/5b0d48ea-d418-11e9-9343-
40db57cf6abd_story.html?arc404=true#click=https://t.co/PEjZEyxWgg At a minimum, based on
our discussion with Mr. Cooney and Ms. Gaston this afternoon, it is clear that no indictment has
been returned.

We have no independent knowledge of whether the reporting is accurate but for present
purposes we assume that the grand jury may have voted a no true bill. If that is true, we want to
bring a couple of important points to your attention.

First, under Rule 6(f) of the Federal Rules of Criminal Procedure, "If a complaint or information
is pending against the defendant and 12 jurors do not concur in the indictment, the foreperson
must promptly and in writing report the lack of concurrence to the magistrate judge." The rule is
silent about any such reporting obligation in cases where no complaint or information is
pending, but there is certainly no prohibition in the rule, either express or implied, on making
such a report. In this matter, we strongly urge you to request the grand jury to submit such a
report to the Court. We believe it serves the interests of transparency. There is no reason not
to do so.

Second, according to section 9-11.120 of the Justice Manual:

A. Approval Required Prior to Resubmission of Same Matter to Grand Jury: Once a
grand jury returns a no-bill or otherwise acts on the merits in declining to return an
indictment, the same matter ( i.e., the same transaction or event and the same putative
defendant) should not be presented to another grand jury or resubmitted to the same
grand jury without first securing the approval of the responsible United States Attorney.

https://www.justice.gov/jm/jm-9-11000-grand-jury#9-11.101. In substance, the decision whether

to resubmit a case, following a no true bill, to the same grand jury -- or submit the case to a new
grand jury -- is entrusted to your discretion. We believe that for the reasons we have presented
to you and the Deputy Attorney General in person and in writing, you should not resubmit this
case. This is not a case where the evidence was presented in a hurry, or that some important
piece of evidence was inadvertently not submitted to the grand jury, which would make it the
rare case where resubmission of a case to the grand jury might be warranted. That is not this
case.
Indeed, we believe that if the grand jury has in fact voted a no true bill, the Justice Manual
compels you not to resubmit the case to the same or a different grand jury. Section 9-27.220 of
the Justice Manual provides:

"The attorney for the government should commence or recommend federal prosecution if
he/she believes that the person's conduct constitutes a federal offense, and that the admissible
evidence will probably be sufficient to obtain and sustain a conviction, unless (1) the prosecution
would serve no substantial federal interest; (2) the person is subject to effective prosecution in
another jurisdiction; or (3) there exists an adequate non-criminal alternative to prosecution."

(emphasis added). https://www.justice.gov/jm/jm-9-27000-principles-federal-prosecution#9-

27.220. The comment to this section goes on to state:

"Moreover, both as a matter of fundamental fairness and in the interest of the efficient
administration of justice, no prosecution should be initiated against any person unless the
attorney for the government believes that the admissible evidence is sufficient to obtain and
sustain a guilty verdict by an unbiased trier of fact."

Id.

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. 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." If the grand jury voted not to approve charges, it did not
find probable cause. Therefore, it is simply not reasonable to believe that a trial jury would find
Mr. McCabe guilty of any charges employing a far more rigorous and exacting standard --
beyond a reasonable doubt.

For the reasons given above, and all the other reasons we have previously presented to you,
the only fair and just result is for you to accept the grand jury's decision and end these
proceedings.

We look forward to your response.

MRB

---------- Forwarded message ---------

From: Michael Bromwich <⬛⬛⬛⬛⬛⬛⬛⬛⬛>
Date: Thu, Sep 12, 2019 at 3:00 PM
Subject: Re: Call
To: Cooney, Joseph (USADC) <⬛⬛⬛⬛⬛⬛⬛⬛⬛>
Cc: <⬛⬛⬛⬛⬛⬛⬛⬛⬛>, Gaston, Molly (USADC) <⬛⬛⬛⬛⬛⬛⬛⬛⬛>

J.P. and Molly,

We are hearing from multiple reporters that the grand jury no true-billed charges against Mr.
McCabe. Please confirm that if this in fact occurred, you would advise us promptly.

Thank you.