The Justice Department is squeezing former CIA Director John Brennan between two parallel criminal investigations, a strategy experts say is unorthodox and might be ill-advised, in pursuit of one of President Donald Trump’s political foes.
The DOJ subpoenaed Brennan to testify next month before a grand jury in South Florida as a “subject,” or someone under investigation but not yet accused of a crime, in a far-reaching investigation into whether Trump had his civil rights violated, his lawyer said in a court filing.
At the same time, the DOJ is actively pursuing criminal charges in the District of Columbia against Brennan as a “target,” or a likely defendant, in an investigation into allegations he lied to the House Judiciary Committee in 2023 about the Steele dossier’s role in a spy assessment about Trump-Russia matters in the 2016 election.
The dueling roles in dueling cases creates a legal minefield for Brennan to navigate, one that prosecutors could use to trip him up or create openings to charge him with a crime. Or, the strategy could end up tying prosecutors’ hands, experts said.
Trending
“What the government is doing is rather strange and makes me think: Either they don’t know what they’re doing, or … it could be a Trumpian strategy to just make life as miserable and legally expensive as possible, even in cases you can’t possibly win,” said Robert Weisberg, a Stanford Law School professor.
Leslie Caldwell, an attorney who oversaw the DOJ’s criminal division during the Obama administration, said of the strategy, “Unusual would be an understatement. Unprecedented would probably be a better word. And ill-advised would be an even better word.”
“It has every indicator of a classic vindictive prosecution, where the bullseye is put on certain people’s heads and a desperate effort is made to gather evidence after the fact,” Caldwell told The Sun. “Those kinds of cases are generally not brought, because they’re generally not good cases.”
If Brennan shows up before the grand jury next month on the grand conspiracy case, he is expected to invoke his Fifth Amendment right against self-incrimination — refusing to answer any questions on the stand — because of the second investigation that’s targeting him. That itself could generate headlines only a month before the midterms.
Typically, prosecutors might offer immunity against criminal charges to the subject of an investigation to compel them to testify, and doing so would all but eliminate their ability to later indict that person on related conduct.
For Brennan, that reality could tie prosecutors’ hands as they seek to investigate what Trump has alluded to as a supposedly vast conspiracy against him by former government officials who he blames for saddling his first administration with the Russia scandal in 2016, costing him reelection in 2020 and weighing down his 2024 campaign with criminal charges.
The DOJ might be willing to give up the chance to prosecute Brennan for past conduct in a bid to get him to slip up in front of the grand jury and accuse him of perjury. Steve Friedland, a law professor at Elon University in North Carolina, said grand jury testimony gives prosecutors the chance to “firm their story up,” and immunity does not protect a witness from being charged with giving false testimony.
Yet there are other possibilities, because the DOJ has deliberately situated this grand jury investigation in Fort Pierce, where a satellite courthouse at the northern edge of the Southern District of Florida has only one jurist: U.S. District Judge Aileen Cannon, a Trump appointee who was almost universally condemned by legal scholars over her many rulings in Trump’s Mar-a-Lago criminal case and her decision to ultimately dismiss that indictment.
FBI agents are currently exploring actions taken by former special counsel Jack Smith’s team when they prosecuted Trump for mishandling classified documents at his oceanside mansion. That creates a geographic hook for currently placing the investigation in GOP-friendly Florida — even though the West Palm Beach federal courthouse is 2.8 miles away from Mar-a-Lago while Cannon’s courthouse is 54 miles further and two counties over.
Pursuing the case at the furthest reaches of the judicial district means Cannon is in a position to resolve any disputes over Brennan’s grand jury testimony. Weisberg said prosecutors could request that Cannon privately review his testimony beforehand, and she could unilaterally decide that it doesn’t incriminate him, then force him to testify.
If Brennan still refuses to speak before the grand jury, Cannon could find him in contempt of court and send him to jail until he testifies.
And if prosecutors eventually indict Brennan in Fort Pierce, Cannon would most likely be the judge assigned to the case. That means she would also decide what to do with any defense attempt to dismiss the indictment on the grounds that prosecutors repurposed his immunized statements to go after him anyway.
Weisberg noted that prosecutors’ use of immunized statements is what led an appellate court in 1990 to overturn Oliver North’s conviction in the Iran-Contra scandal. He said any experienced prosecutor would know to tread carefully or risk hindering their ability to levy criminal charges in the future — that is, unless there’s a second objective.
It may seem odd that so much is known about an ongoing criminal investigation that hasn’t resulted in an indictment. But details have emerged in a D.C. federal lawsuit in which Brennan is asking that a judge force the DOJ to keep a record of every communication about the effort — in anticipation of a legal challenge that he “is being vindictively singled out for investigation and prosecution.”
In a declaration filed last week, defense lawyer Kenneth Wainstein detailed how Kurt Olsen — a 2020 election denier who briefly became Trump’s White House election czar and is now at the DOJ — recently informed him on a call with the prosecution team that there are several “viable” grand jury investigations.
U.S. District Judge Jia Cobb held a hearing last week on the matter but has yet to issue a ruling.
Trump has spent years publicly vowing to exact revenge on Brennan, Smith and a long list of other current and former government officials, including his predecessor, former President Joe Biden, Manhattan District Attorney Alvin Bragg, one-time Jan. 6 Committee Chair Liz Cheney, former FBI director James Comey, New York Attorney General Letitia James, former President Barack Obama, recently departed Federal Reserve Chair Jerome Powell, Sen. Adam Schiff of California, and others.
Earlier this month, Joseph diGenova, the MAGA loyalist who oversaw a Florida-based investigation, quit as counselor to the attorney general.
DiGenova had publicly accused Brennan of being a “real traitor” and had already advocated for a criminal prosecution of the former CIA director before joining the investigation. His appointment to the DOJ role followed the removal from the prosecution team of career national security prosecutor Maria Medetis Long, who raised concerns about a rushed effort to bring charges against Brennan.
Concerns that diGenova had been “slow rolling” the investigation may have played a role in his abrupt departure, the New York Post reported. He denied allegations that he had lost focus in an interview with the newspaper.
“If you want indictments where there’s no evidence, you have an ethical problem,” diGenova told the Post.
Author
