Even a global plague won’t stop Attorney General Bill Barr from pursuing former CIA director John Brennan.
The latest on the investigation of U.S Attorney John Durham comes from the Washington Examiner:
Durham was appointed last year by Barr to review possible misconduct by federal law enforcement and intelligence officials in the Russia investigation. The review upgraded into a criminal investigation in the fall, allowing Durham the power to impanel a grand jury and hand down indictments. Democrats have criticized the review as a politically motivated scheme to undermine the work of former special counsel Robert Mueller and attack President Trump’s perceived enemies.
The legal question is whether Brennan (or other top national security policymakers in the Obama White House) violated any laws while pressing for an investigation of scores of contacts between Trump’s campaign and presumed Russian state agents.
Justice Department Inspector General Michael Horowitz reviewed the criminal investigation of Trump’s entourage and concluded there was no political bias. But Horowitz did find the government’s application for a continuing wiretap on Trump adviser Carter Page was riddled with bad information that was unfairly used. Civil liberties activists and libertarians have long warned that the FISA courts are prone to abuse by law enforcement and intelligence agencies. The case of Carter Page proved they are right.
Many of the policymakers and pundits who defended the FISA process as fair and functional are the same people who defend Brennan as a public servant. If they misjudged the intelligence/law enforcement system, they might have a blind spot about one of its leaders.
There’s no doubt that Barr has politicized the Justice Department and is deploying it in service of an unfit and autocratic president. But Barr’s abuses do not necessarily mean Brennan is innocent of wrongdoing.
Troll fantasies aside, there is zero chance Brennan will be charged with “treason,” a crime that only be committed in wartime. Brennan will not be charged with mounting a “hoax,” because that is not a criminal charge either.
Brennan might be vulnerable on two points of law.
- The handling of classified information. Clearly, some high-level former intelligence officials shared classified information with certain news reporters before and after President Trump was elected. The Justice Department has used the Espionage Act to prosecute whistleblowers like Julian Assange, Chelsea Manning, and Edward Snowden. If Brennan or some other top official were found to have given information to an unauthorized person, a creative and aggressive prosecutor might be able to construct a criminal indictment.
- Violations of privacy. Brennan was alarmed both before and after Trump’s election about his campaign’s contacts with the Russians. He knew of the FBI’s ongoing investigations. He and other senior officials had the right, under U.S. law, to “unmask” the names of Americans picked up on NSA surveillance. President Trump has claimed, without evidence, that Obama wiretapped Trump Tower. Did Brennan or others go beyond authorized “unmasking?” If they did, they might be vulnerable to criminal charges.
Trump Kills FISA Reform
While President Trump routinely savages Brennan, he recently demonstrated how his “deep state” discourse is fundamentally unprincipled.
It happened when Democrats and Republicans in Congress agreed on some measures to fix FISA. As Lawfare explains:
On March 11, the House passed H.R. 6172, a compromise on the FISA reform issues, on a bipartisan 278-to-136 vote. H.R. 6172 would extend the relevant surveillance authorities through 2023 but also includes reforms aimed at limiting existing authorities. Attorney General Bill Barr supported the House bill—but notwithstanding Barr’s endorsement, President Trump issued a veto threat by tweet on March 12.
In other words, President Trump personally killed FISA reform. He had to fix the system that abused his former adviser Page. He had a chance to reform the very “deep state” agencies he demonizes–and he refused.
Brennan Under Scrutiny
So should we sympathize with John Brennan as he is pursued by a politicized Attorney General and an unprincipled president?
Brennan is more abrasive than sympathetic. I personally am glad that he admires Colin Kaepernick but wokeness should not put us to sleep. Brennan has injected himself into the arena of presidential politics like no former CIA chief since George H.W. Bush. He can’t be surprised he’s a political target.
Nor can Brennan (and his defenders) be surprised that many Americans, not just Trump and Barr, fear that “deep state” actors might compromise democracy.
Senior CIA officials have illicitly spied on Americans in the past. CIA director Richard Helms presided over Operation CHAOS, a massive domestic spying program, from 1967-1974.
In the 1980s, CIA director William Casey (and former director George H.W. Bush) helped organized the Iran-Contra conspiracy to bypass the Congress and the constitution. Four top CIA officials were indicted (and pardoned.)
Brennan himself authorized an illicit break-in at the offices of the bipartisan Senate Intelligence Committee in 2015 (a burglary scarily dramatized in the taut Adam Driver thriller, The Report.)
Close law enforcement scrutiny of senior CIA officials is appropriate. It is not necessarily a “witch hunt.”
The Carter Page FISA debacle is a symptom of a dysfunctional national security system that grants enormous leeway to senior intelligence officials without much accountability. Brennan deserves the presumption of innocence until we see what Durham finds.