The problem with the Brennan probe is the difficulty of proving perjury. The president’s conclusion that Brennan is a terrible person is beside the point.

Earlier today, we published my post on the Trump Justice Department’s reportedly stepped-up effort to indict the president’s nemesis, former FBI Director James Comey. Meanwhile the New York Times reports that the DOJ’s probe of another Trump political enemy, former CIA Director John Brennan, has stalled.

I wrote about the Brennan investigation back in July, an installment of a three-part “Russiagate Revisited” series that added a fourth part when Tulsi Gabbard, Trump’s national intelligence director, disclosed some long-withheld Russiagate documents. (To repeat what I said at the time, Gabbard’s disclosures were useful in filling some gaps, but they did not change the trajectory of the Trump-Russia “collusion” fiasco, about which I wrote Ball of Collusion several years ago.)

The Brennan probe is likely going nowhere because, as I explained in July, you can’t make a perjury case based on testimony that is true.

Relying on memoranda and other intelligence documents, Trump’s CIA Director John Ratcliffe referred Brennan to the Justice Department — something Trump obviously wants his top officials to do — theorizing that he had misled Congress in 2023 testimony.

Brennan testified that the CIA had opposed inclusion of the so-called Steele dossier in the Obama spy agencies’ 2016 intelligence assessment (IA) of Russia’s interference in that year’s presidential election between Trump and Hillary Clinton. The Steele dossier, of course, was the faux intelligence reporting about Trump and Russia commissioned by the Clinton campaign.

Ratcliffe sees Brennan’s testimony as misleading because Brennan’s correspondence from 2016 establishes that he was strongly in favor of including the dossier. (That’s detailed in a recent CIA critique of the IA’s tradecraft.) Ratcliffe is probably right about that. But as they say in the biz, misleading is not the same as actionably perjurious.

During Brennan’s 2023 testimony, he was not asked about his personal opinion and actions in 2016 regarding the Steele dossier. He was asked about the CIA’s position. Although he was the agency’s director, his top staffers were deeply opposed to the dossier’s inclusion in the IA. And they largely prevailed: The dossier was not included as part of the IA’s assessment; a pared-down version was incorporated as an addendum but not referenced in the actual assessment.

Brennan testified under oath: “The CIA was very much opposed to having any reference or inclusion of the Steele dossier in the [ICA].” (See May 11, 2023, transcript, p. 113.) That may not have been the whole story, but it’s the part of the story Brennan told.

In the context of the Comey investigation, Rich and I discussed on the podcast today how, in a perjury case, the burden is always on the questioner to ask precise questions and draw out complete, clear answers; the burden is never on the witness to figure out what the questioner wants to know and volunteer it. Moreover, if a statement is literally true, even if it’s uttered with dishonest intent, the statement cannot be the basis for a legit perjury charge.

Adding to these fatal flaws, the Times reports that the Brennan investigation has also been hampered because National Intelligence Director Tulsi Gabbard, at Trump’s urging, revoked the security clearances of many intelligence community personnel who were involved in the 2016 IA (because the IA became part of the foundation for the false narrative that Trump collaborated with Russia). Several were fired.

Welp, I’ll be darned, it turns out that people who get fired by a presidential administration don’t exactly trip over themselves to be cooperative with that administration’s Justice Department. And if they can’t access relevant information because they are no longer cleared, they have a ready-made excuse to say they can’t reconstruct important details.

The Times includes a denial by Gabbard’s office that important witnesses have been rendered unavailable. The intimation is that the prosecutors are scapegoating Gabbard’s office for their difficulty in making the case.

The main difficulty, though, is likely to be the lack, not of interagency cooperation, but of a prosecutable crime.

President Trump’s harangue is that Brennan and Comey are terrible people. Whether you think he’s right or wrong about that, being a terrible person is not a crime. To make a case, prosecutors need proof beyond a reasonable doubt that a criminal offense was committed.