It is baffling that Trump officials could think it helpful to the president to revisit this ancient history.
This is the last of a three-part series on reports that Trump CIA Director John Ratcliffe has referred two Obama-era officials — John Brennan and James Comey, then directors of the CIA and FBI, respectively — for criminal investigation. To understand what the referral is about, and why it is a political gambit rather than a viable prosecutorial exercise, we need to go back to the so-called Russiagate scandal that beleaguered the first Trump administration. Here are part 1 and part 2.
In part 2 of this series, we looked at Obama-era CIA Director John Brennan’s central role in the Russiagate scandal in comparison to the nonexistent evidence that he misled House investigators during 2023 testimony. If that’s all there is, then no basis exists for an FBI criminal probe of Brennan.
That said, what isn’t even a molehill of incriminating Brennan evidence is mountainous compared to the dearth of evidence implicating the FBI’s former director, James Comey, who has also reportedly been referred to the FBI by President Trump’s CIA chief, John Ratcliffe. (Disclosure: While I have not been in contact with Jim Comey for many years, we were colleagues and friends after being hired as young federal prosecutors in New York in the 1980s. Over the years, I have written both favorably and disparagingly about him, depending on what I believed the situation warranted.)
On Comey, What’s the Crime?
According to Fox News, unidentified DOJ sources familiar with the thinking of Director Ratcliffe and the FBI indicate that Brennan was referred to the FBI on a false-statements theory (which, in part 2, I contended was ill-conceived). The same sources could not, however, articulate what crime Comey is suspected of committing, except to speculate that he had been in a “conspiracy” with Brennan.
A conspiracy to do . . . what?
Some CrimLaw 101: A conspiracy is an agreement to violate a criminal law; unless the minds of two or more people meet, harmoniously intending to commit a statutory crime, there can be no conspiracy.
Comey has no connection to Brennan’s 2023 testimony. He did not sign the former national security officials’ open letter about the Hunter Biden laptop, which was the topic about which the Republican-led House Judiciary Committee interviewed Brennan — an interview that briefly diverted to a discussion of the 2016 Intelligence Community Assessment (ICA) of Russia’s interference in that year’s presidential election.
As far as the FBI’s targeting of Donald Trump in the Crossfire Hurricane investigation is concerned, Comey was linked to Brennan circa 2016–17. But it isn’t a violation of federal criminal law to open an investigation based on false or insufficient predication — it’s a transgression against FBI and DOJ rules and procedures, but not against criminal statutes. And let’s assume for argument’s sake that I am right and that the FBI’s Crossfire Hurricane probe was opened on false pretenses. What I think makes no difference. What matters, after all these years, is what the United States government has concluded. Based on a report by then–DOJ Inspector General Michael Horowitz during the first Trump administration, the government has taken the position that Crossfire Hurricane was properly predicated. (Horowitz did not say it was prudently predicated, just that the FBI guidelines for predication are so undemanding that the proffered basis for suspicion satisfied the low bar.)
In addition, even if Comey and Brennan had been jointly complicit in a prosecutable conspiracy in 2016–17 (and the several ensuing investigations have not generated any such allegation), that conspiracy would no longer be prosecutable in 2025. The federal statute of limitations would have lapsed in 2022. (Brennan left office at the end of the Obama administration; President Trump fired Comey on May 9, 2017.)
In other words, the referral of Brennan and Comey for a criminal investigation — a referral by Brennan’s Trump II successor, John Ratcliffe, to Comey’s Trump II successor, Kash Patel — is just political chum. There is no prospect that Brennan or Comey will actually be indicted. Of course, Trump officials will nonetheless delight in saying that the two are subjects of a wide-ranging criminal investigation.
Moreover, as I pointed out many times throughout the years-long saga of partisan Democratic investigations and prosecutions against Trump and his allies, and as Brennan and Comey may now experience, a core objective of lawfare is to put political enemies through the expense and anxiety of defending against a criminal investigation, regardless of whether formal charges are eventually brought. The practice portends the wreckage of the criminal justice system’s legitimacy and the rule of law. I had hoped that, having been its most notable victim, and having reclaimed the presidency in part due to the public’s disdain for prosecutorial abuse, Trump would be the president who put a stop to lawfare. Sadly, the opposite has occurred.
Unforced Error
As I said at the outset of part 1, the dredging up of Russiagate in order to paint two of President Trump’s nemeses as potential criminal defendants is not just cynical politics; it is an unforced political error. Why? Just read the new, short CIA report Ratcliffe is touting — “Tradecraft Review of the 2016 Intelligence Community Assessment on Russian Election Interference.” (And aren’t we lucky that there are no pressing problems in the world that require intelligence analysis, giving the CIA goo-gobs of time to scrutinize a nine-year-old scandal that has been the subject of about a zillion investigations?)
The new report, said to be a “lessons learned” exercise, is actually a rehabilitation of the 2016 ICA.
As the new report explains, the December 2016 ICA drew three conclusions: (1) Russia interfered in the election in an effort to undermine faith in the American democratic process; (2) Putin hoped to denigrate Clinton in order to put her in a bad light when she began her presidency (which Putin, like most everyone else, anticipated); and (3) Putin “aspired” to help Trump win the 2016 election. The participating intelligence agencies had “high confidence” in conclusions (1) and (2). Conclusion (3) was more controversial — with the NSA, for example, having only “moderate confidence” that Putin had been pulling for Trump.
Understand: Trump and his MAGA acolytes dismiss Russiagate as a complete hoax. Totally made-up. To the contrary, Ratcliffe’s new report reminds us that Russia did, in fact, interfere in the 2016 election and did, in fact, have the nefarious purpose of trying to harm the incoming U.S. president. Even if you believe, as I do, that neither of those things is remarkable (i.e., the Russian interference was inconsequential and par for the course), the report reaffirms that they are not fabrications.
From the Trump/MAGA standpoint, moreover, things get worse. The new CIA report is critical of the inclusion of the Steele dossier in the 2016 ICA (in summary form, as an annex) because it degraded the credibility and public acceptance of what, in the assessment of today’s Trump II-era CIA, was otherwise a good piece of analytical work. As the report puts it: “even with the benefit of hindsight,” analysts from the Trump II CIA found “much of the ICA’s tradecraft to be robust and consistent with” intelligence community standards. Indeed, the report observes, the ICA’s “analytical rigor was evident in its extensive sourcing: 173 reports from CIA, NSA, and FBI, supplemented by 74 citations from open sources.”
In the end, the CIA concludes that it was a mistake to include the judgment that Putin aspired for Trump to win. Not because that judgment was wholly unsupported (it wasn’t), but because (a) the finding on Putin’s aspiration regarding Trump was weaker than the ICA’s two main findings (viz., that Russia interfered and wanted to denigrate Clinton); (b) the aspiration finding was made weaker still by reference to the Steele dossier (again, a brief summary of the dossier was included in the ICA’s appendix, though excluded from its analysis); and (c) the intelligence agencies’ confidence that Putin was trying to denigrate Clinton unavoidably points to the strong possibility that he preferred Trump.
That last point is debatable. High confidence that Putin wanted to denigrate Clinton equally points to the strong possibility that he expected her to win and hoped his denigration of her would contribute to making her an ineffective U.S. president — which would help Russia, America’s geopolitical rival. It is not necessarily so that Putin believed Russia would be better off with Trump as U.S. president. In my view, for what little it’s worth, Putin probably had a more developed position on Clinton because he gave Trump little chance of winning.
Even if I’m wrong about that, however, the upshot of the CIA’s new report is that no useful purpose was served by the ICA’s finding that Putin desired a Trump victory. Since the intelligence community had high confidence that Putin wanted to denigrate Clinton, it was implicit that this would have inured to Trump’s advantage during the campaign. Again, none of this mattered to the outcome of the election; but if one concluded that Putin wanted to hurt Clinton, as U.S. intelligence agencies did in the ICA, then there was no need to say that Putin wanted to help Trump. There were only two candidates.
In any event, it is baffling that Trump officials could think it helpful to the president to revisit this ancient history — i.e., to reaffirm Russia’s perniciousness — at the very moment when Trump is under well-deserved criticism for his months of solicitude toward Putin, a committed American enemy who has been monstrously prosecuting the Ukraine war. I surmise that the urge for retribution against Brennan and Comey blinds the White House and Trump partisans to the downsides of seeking such retribution.
Democrats, too, calculated that lawfare against their political enemy, Trump, was the way to go. The public was repulsed. The lawfare strategy blew up on Democrats and landed their nemesis in the White House. There’s a lesson learned for you.