The US attorney has been scrutinizing alleged false statements McCabe made to investigators regarding his involvement in a newspaper report about an investigation into the Clinton Foundation published days before the 2016 presidential election.
The US attorney, Jessie Liu, recommended that McCabe should be indicted, and in a meeting with Deputy Attorney General Jeffrey Rosen at the Justice Department last month, McCabe’s attorneys argued against that recommendation, one of the sources said.
On Thursday, a senior DOJ official sent McCabe’s legal team an email saying that that appeal had been rejected, according to a second person who is close to the legal team.
McCabe has said he never intentionally misled anyone. His attorneys say that any charges against him would be driven by politics and retaliation from President Donald Trump for the FBI’s scrutiny of his administration.
McCabe is a CNN contributor.
McCabe, who became the FBI’s acting director after James Comey was fired, was faulted by the Justice Department’s inspector general in a report last year for lacking candor when he discussed with investigators his decision to direct FBI officials to disclose the information about the Clinton Foundation probe to The Wall Street Journal.
The notification to McCabe that his appeal was rejected is a strong indication that an indictment may be imminent. If McCabe were to be indicted, it would represent a rare step against a senior law enforcement official, and the first set of charges against an official involved in the investigations into Trump, as the President has waged a crusade to discredit them.
McCabe has disputed the findings of the inspector general, and his attorneys have argued that McCabe made inaccurate statements only after investigators sprang questions on him in a confusing way. McCabe later corrected his statements to investigators about authorizing the disclosure to the newspaper.
A spokeswoman for the DC US attorney declined to comment.
After Comey was fired in May 2017, McCabe opened the FBI’s obstruction of justice investigation into the President before former special counsel Robert Mueller was appointed.
In March 2018, two days shy of his scheduled retirement date when he would have become eligible to receive early retirement benefits, McCabe was fired from the FBI.
McCabe has sued the Justice Department and the FBI over his firing, accusing Trump of retaliating against him.
The Justice Department’s track record of bringing charges in false statements cases appears to be mixed. Mueller charged multiple people in 2017 and 2018 for making false statements to the FBI, including Trump’s first national security adviser, Michael Flynn.
But the Justice Department on several occasions in recent years has declined to prosecute individuals faulted by the inspector general’s office for making false statements or lacking candor in interviews.
This story has been updated.