It’s well established that the Trump-Russia hoax was concocted to harm Trump, but Ratcliffe’s move is a prosecutorial dead end.
This is the first 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.
A ccording to several reports, John Ratcliffe, President Trump’s CIA director, has referred his predecessor, John Brennan, as well as former FBI Director James Comey, Brennan’s Obama-era colleague, for a criminal investigation, to be conducted by the FBI.
Brennan and Comey, of course, are stones in the president’s shoe. The referral, which doesn’t have a prayer of becoming a viable criminal prosecution, is MAGA red meat, intended to put Brennan and Comey through the same kind of wringer that Trump experienced as a target of federal investigators during the Biden years. Besides that, it’s an unforced error: The referral is based on a new CIA analysis commissioned by Ratcliffe that refreshes the stale Russia “collusion” story at a time when Trump’s strange indulgence of Vladimir Putin’s war of aggression against Ukraine has been center stage; Ratcliffe’s CIA also reaffirms the U.S. intelligence community’s conclusion that Putin sought to interfere in the 2016 election for the purpose of hurting Hillary Clinton.
What Democrats hysterically label as Russia’s “meddling in our democracy” was nothing more than cheap, juvenile messaging that proved irrelevant to the outcome of the 2016 election. It’s also well-established at this point that Clinton’s campaign manufactured the Trump-Russia “collusion” smear in a futile effort to divert attention from her own email scandal and her deep flaws as a candidate. Plus, with Trump having convincingly won the 2024 election, the Clinton campaign’s collaboration with the Obama administration to frame his 2016 election as illegitimate is irrelevant. Moreover, the statute of limitations has lapsed even if any once-prosecutable crimes occurred (which is unlikely). Consequently, someone needs to explain to me how the Trump CIA’s revival of this story helps the president — although I say that well aware that the president is undoubtedly pleased by his CIA director’s gambit.
The December 2016 ‘Intelligence Community Assessment’
The basis for the referral story is the late 2016 Intelligence Community Assessment (ICA) of Russia’s interference in that year’s presidential election. The ICA has reared its head again because Ratcliffe ordered up a “lessons learned” analysis of its “tradecraft.” The result is an eight-page document completed June 26 and released a few days ago. Also factoring heavily in this exercise is the notorious “Steele dossier” — the compendium of faux intelligence reporting concocted by former British spy Christopher Steele at the behest of the Hillary Clinton campaign (through its cut-outs, the Perkins Coie law firm and Fusion GPS, the research firm that was retained by Perkins Coie and that hired Steele).
As it happens, my 2018 book, Ball of Collusion: The Plot to Rig an Election and Destroy a Presidency, was researched and written as the “Russiagate” scandal was unfolding — i.e., prior to most of the voluminous reporting that we now have about the scandal (including from the Mueller probe and, much later, the Durham probe). I’m pleased to say that the book holds up well. Among my contentions was that the ICA was a blatant politicization of intelligence.
The timeline and the participants were big tells. President Obama made Brennan, his hyper-political CIA director, the point man in rushing out the ICA. The objective was to put Trump on the back foot, even before he took office. The ICA would be a political hit job that could nevertheless be touted as a reliable judgment from our “community” of spy agencies that the Russian regime had interfered in the presidential election because Putin wanted Trump to win. This would instantly become fodder for the smears that Trump had stolen the election by willfully colluding in Putin’s election interference — as if fading Russia had the capacity to meaningfully influence an American election, and as if Putin, the former KGB agent, would seek the help of Trump, of all people, to pull such a thing off.
It was a fever dream, one that the Democrats and their media confederates happily peddled. After all, the alternative was to acknowledge that Trump won because Obama’s policies were unpopular and Clinton was a historically awful candidate. That wouldn’t do.
In truth, during the months leading up to the 2016 election, Obama and Brennan had known, in real time, all about Russia’s efforts to influence American voters. Those efforts were laughable: With a pittance of funding, outfits loosely connected to the Kremlin produced anti-Clinton internet memes; even if the output hadn’t been moronic on its face, to quantify it as a drop in the multibillion-dollar ocean of American campaign messaging would be gross overstatement.
Weeks before the election, Obama personally admonished Putin to knock it off. (I’m sure the despot was nearly as intimidated as he’d been right before he annexed Crimea.) In the end, though, the Obama administration took no effective responsive action because Russia’s exertions were seen as a trifling nuisance. Putin had no effect on the election. Had Clinton won as expected, Trump would have faded away, Clinton would have assumed her party’s default position of appeasing Moscow, and no one would ever again have heard anything about “Russian meddling in our democracy.”
The paper trail now confirms what I argued in Ball of Collusion based on available reporting and common sense: (a) Russia’s inconsequential meddling in the 2016 American presidential campaign was just another iteration of both countries’ long history of generally ineffectual interference in each other’s politics; (b) there was no evidence that Trump was complicit in Putin’s shenanigans; and (c) Clinton had hyped a farcical Trump-Putin conspiracy narrative in a desperate attempt to divert voters’ attention away from her own email scandal.
Rushing Out the ICA to Support the ‘Collusion’ Narrative
“Collusion” became an issue only because Clinton lost. Months before the election, the CIA and FBI knew it was a political dirty trick launched by the Clinton campaign. After initially conceding that Russia hadn’t been a factor in Clinton’s loss, Obama changed his tune, mobilizing Brennan to get the ICA done with all due haste so it could be rolled out while Obama was still president — i.e., when Trump was powerless to stop it.
As you’d be told by any veteran of government investigations, especially investigations at the intersection of national security and foreign intelligence, such inquiries take a very long time: at least months and often well over a year, if they are to be taken seriously. Competent investigators gather all the pertinent documentary evidence and interview all the relevant witnesses before completing their analysis, debating any disputed findings in-house, and committing conclusions to paper in a public report. When the inquiry involves classified documents and foreign languages, that can more than double the time.
In stark contrast, Obama had Brennan and his minions crank out the ICA by late December, just a few weeks after the November election.
All of that has been known for years. Equally well known has been the fact that political dirty tricks involving abuses of power are not prosecutable crimes. It is an abuse of power, not a prosecutable crime, for law enforcement and intelligence officials to conduct investigations in the absence of good-faith suspicion prompted by concrete, articulable evidence. Barring provable lies on required court or government filings, it is very hard to establish criminal misconduct. In our system, it is Congress that must check executive branch abuses of power, including the partisan exploitation of the law enforcement and intelligence apparatus — lawfare.
Investigators have broad discretion. They are often wrong in their judgments, but that doesn’t mean they have committed crimes. The acquittals of the two minor figures indicted in the Durham investigation (cases in which the real culprits were law enforcement agents whose misconduct was not prosecutable) illustrate that it is very difficult to frame investigative malevolence as criminally actionable misconduct.
And that’s even if the conduct at issue is fresh. With Russiagate, we’re talking about conduct for which the statute of limitations — generally, five years for federal crimes — lapsed years ago.
Brennan and Crossfire Hurricane
Ratcliffe, a former prosecutor, would apparently have the FBI and Justice Department get around this inconvenience by basing a criminal probe on testimony that Brennan gave to the House Judiciary Committee in 2023, on a subject — Hunter Biden’s laptop — that had nothing to do with Russiagate. The theory is that, in a line of inquiry far afield from the subject matter of the hearing, Brennan made false statements by insisting that the CIA had been vigorously opposed, in late 2016, to including the Steele dossier in the 2016 ICA; in truth, Ratcliffe shows that Brennan was ardently in favor of including the dossier allegations.
The theory doesn’t work because Brennan’s 2023 testimony was true even if the former CIA director is using the agency as an institution to camouflage his personal position and actions back in 2016.
That is, the CIA — mainly, Brennan’s top underlings — was indeed adamantly against the dossier’s inclusion in the ICA, to the point that it wasn’t included as part of the document’s core analysis. By contrast, Brennan personally lobbied for inclusion, and the FBI (Comey) was also pushing hard to include it. But in his 2023 testimony cited by Ratcliffe, Brennan spoke about the CIA’s position, not his personal position.
For statute of limitations purposes, prosecutors can’t resuscitate a time-barred crime by focusing on a more recent non-crime. Brennan’s malfeasance — i.e., his central role in peddling the Trump-Russia collusion slander — happened nine years ago. Although a profound abuse of power, it was not, in my view, an indictable crime (and none of the numerous Russiagate investigations have cited it as such). Even if, for argument’s sake, we assume that it might have been an indictable crime, it’s time-barred. Prosecutors cannot reach Russiagate misconduct that occurred in 2016 by pretextually investigating Brennan’s true statements in 2023 congressional testimony — i.e., noncriminal conduct.
To understand what happened here and why, in 2025, it’s a prosecutorial dead end, we need to revisit Russiagate and John Brennan’s role in it. We’ll turn to that in part 2.