In an email obtained by CNN, attorney Michael Bromwich, says that based on discussions he'd had with prosecutors in the case that it is clear McCabe has not so far been indicted, and asks the US attorney, Jessie Liu, to drop any plan to resubmit the case to a different grand jury, if in fact the case had been denied by the first.
It is rare for a grand jury to decline to bring an indictment after federal prosecutors produce a full case to them, and any such decision could be an indication of the weakness of the evidence the government has presented.
No grand jury indictments were presented Thursday at a daily hearing in the downtown courthouse where such indictments are typically discussed. Since Wednesday, only one grand jury indictment, unrelated to McCabe, has been returned in DC federal court.
Grand juries conduct their business in secret and CNN has not reported about any unusual grand jury activity involving McCabe this week.
McCabe is a CNN contributor.
In an email, a senior Justice Department official notified McCabe's legal team that they rejected an appeal McCabe had made of the recommendation by Liu to bring an indictment.
"The Department rejected your appeal of the United States Attorney's Office's decision in this matter. Any further inquiries should be directed to the United States Attorney's Office," the DOJ official wrote, according to a source close to McCabe's legal team.
The US attorney recommended McCabe be indicted after investigating a referral from the Justice Department's inspector general that reported McCabe had made false statements to investigators regarding his involvement in a Wall Street Journal story about an investigation into the Clinton Foundation published days before the 2016 presidential election.
McCabe, an early target of President Donald Trump, has said that he never intentionally misled anyone, and he later corrected his statements to investigators.
His attorneys say that any charges against him would be driven by politics and retaliation from Trump for the FBI's scrutiny of his administration. McCabe, who served as the acting FBI director after James Comey was fired, opened the FBI's obstruction of justice investigation into the President before former special counsel Robert Mueller was appointed.
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.
Prosecutors must only convince grand jurors that there was "probably cause" that a crime was committed, and 12 of 23 grand jurors are required to sign off on an indictment for it to be handed up.
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.
This story has been updated.