The flurry of activity kicked off around noon, when a top official in Deputy Attorney General Jeffrey Rosen’s office notified McCabe’s team that his appeal to Rosen to abandon the case had failed.
“The Department rejected your appeal of the United States Attorney’s Office’s decision in this matter,” the official wrote, according to one person familiar with the matter who spoke on the condition of anonymity to discuss the private communication. “Any further inquiries should be directed to the United States Attorney’s Office.”
McCabe’s team had been told last month that line prosecutors recommended charges and later that U.S. Attorney Jessie K. Liu of the District of Columbia had endorsed that decision, a person familiar with the matter said. McCabe’s team had then appealed to Rosen in what was considered one of his final chances to persuade officials not to move forward and seek an indictment from a grand jury. The legal team had been waiting for a response.
The notification was notable in its own right but particularly suggestive that charges were imminent, because a federal grand jury investigating McCabe was suddenly recalled this week after a months-long hiatus. But the panel was released Thursday with no immediate signs of an indictment. That could be a sign they balked, though it is also possible they have filed a determination under seal or could be asked to return later.
To bring an indictment, prosecutors would have to persuade 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 restart the process.
A Justice Department spokesman declined to comment. Spokeswomen for McCabe, the U.S. attorney’s office and the D.C. federal courthouse also declined to comment.
The decision, whenever it is made clear, is likely to inflame partisan divisions and again thrust the Justice Department to the center of a political combat zone.
McCabe authorized the FBI to begin investigating President 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 of 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 B. 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 unbeknownst 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 of the Clinton family foundation.
McCabe now acknowledges he authorized two FBI officials to speak to a reporter for that Journal account. 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 attorney has said that 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.”
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.
Michael Horowitz, the Justice Department’s 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.