John Brennan Was Put in a Perjury Trap Yesterday -- A Completely Legitimate One

(AP Photo/Pablo Martinez Monsivais)
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Former CIA Director John Brennan is sworn-in on Capitol Hill in Washington, Tuesday, May 23, 2017, prior to testifying before the House Intelligence Committee Russia Investigation Task Force. (AP Photo/Pablo Martinez Monsivais)


John Brennan’s long-time advisor Nick Shapiro put out a statement yesterday at the conclusion of Brennan’s eight-hour interview with John Durham and his investigators.

It might all be true.  All I have are opinions on the text and circumstances.

But I also know that the CIA is an institution designed to engage in manipulation using lies and deception — in a good way.  It’s how they accomplish their mission in defense of the country.

John Brennan is an embodiment of the CIA — it’s all he’s ever known.  Its ethos oozes from his pores.

John Brennan wanted to send a message to the world yesterday after he finished his interview with John Durham.  Oddly, he chose to do it through Nick Shapiro, and not himself.  Nothing about Brennan or his history suggests Shapiro’s message needs be credited with being truthful.

There are several reasons to read this message with a “jaundiced eye” and to recognize the ulterior motives for it.

First, it’s not Brennan’s statement.  Shapiro issued the statement to Obama Administration scribe Natasha Bertrand at Politico — guaranteed to dutifully publish anything requested of her by a former Obama era intelligence official now living in fear.  Shapiro then posted a string of eight Tweets on Twitter with the same text.

Both are devoid of any words actually spoken by Brennan — there are no quotations — nor is there any support offered for Shapiro’s claims by anyone actually in the room, such as Brennan’s attorneys.

Since when has Brennan been shy about saying anything on Twitter?  Why would Brennan go “third person” and have his thoughts about the interview expressed only in the words of someone else?  The most obvious reason is the statements are not going to be exactly accurate.  Running them through a third person builds in a level of “deniability” on Brennan’s part.  Shapiro wasn’t in the room for the interview.  Shapiro is only putting out for public consumption what was told to him, and by phrasing it in the “third person” the way he has, it’s not a statement “by John Brennan” nor is it endorsed by Brennan’s counsel in the room.  It is put out by a guy who has historically been in the role of misleading and misdirecting the press and the public on John Brennan’s behalf.  Yesterday’s mission was no different.


Second, conducting the interview at the CIA facility is an interesting decision.  Why not question him at DOJ or FBI HQ?  The CIA is not a law enforcement agency.  John Brennan no longer works for the CIA.  Any CIA records that may have been needed over the course of the interview could have been made available in a secured facility at both those locations.

But that “records” excuse may have been the very justification given for the selection of the CIA HQ as the location for the interview.

DOJ and the FBI HQ are in Washington DC.  CIA Headquarters is in Langley, Virginia.

If you are geographically challenged, you can read the distinction as “United States District Court for the District of Columbia” v. “United States District Court for the Eastern District of Virginia.”  If John Brennan offered any false answers to the investigators during the interview, the venue for that “false statement” crime is in the EDVA, not in DC federal court.

Third, Shapiro’s statement claims that Brennan was told by Durham that he is neither a “target” nor “subject,” and that he is only a witness to events under review.   Maybe that’s true, but it does not sound true to me.  And the statement does not say that comment was made to Brennan yesterday before the interview took place.

I can say that I had several occasions during my career as a prosecutor where criminal defense lawyers asked me similar questions about their client in response to an interview request.  I can’t say that I always refused to answer, but as a general matter my response was something that I learned when I was starting out from more experienced federal prosecutors —


“Counsel, this interview today is voluntary.  Your client is free to leave right now, and answer none of the questions we have.  He’s free to stop answering questions at any time while the interview is underway.  He’s free to ask to take a break, step outside the room with you, and then return to answer the question or not answer the question.  What does he want to do?”

John Brennan could have been questioned before a grand jury, without the presence of his attorney in the room.  That would be true IF, as suggested by Shapiro’s statement, Brennan was only a “witness”.

To explain that, let’s take a moment to address the whole “Target” v. “Subject” v. “Witness” construct the press is so happy to report about.

Labeling an individual a “target” has a clear meaning in federal criminal prosecutions.  It refers to someone about whom the prosecutor believes there is already sufficient admissible evidence to seek an indictment from a grand jury, and obtain a conviction at trial.  The investigation is ongoing, but the grand jury already has identified a “target” for eventual prosecution.

Anyone who is “not a target” is — “not a target”.  There is no other “classification” of individuals with meaning.  Many people in the business toss around the term “subject”, but that is a “made-up” classification that does not exist.  I have received “Subject” letters from prosecutors on behalf of clients, but those all involve a request to interview my client.

A “Target” letter is different.  When you receive a “Target” letter it advises you that a federal grand jury has already received evidence upon which criminal charges may be issued in the future.  It advises the “Target” that they should seek counsel, and if they cannot afford counsel they should contact the Federal Defender’s Office in their district for legal representation.  Once they have secured counsel, their lawyer should contact the prosecutor to discuss the matter.


The purpose behind a “subject” letter is merely to instill fear in the recipient and to “encourage” them to talk about others before others talk about them — as information from others might push them closer to the “target” category.  Unwitting lawyers think there is meaning behind the “subject” designation but there is not.  Fear is a great motivator.  “Doing unto others before they do unto you” is sort of a universal maxim among the idiot criminal class.

So if you are not a “target” — meaning there isn’t sufficient evidence at this time to charge you with a crime — then by default you are a “witness.”

But “witnesses” can, and often do talk themselves into being “targets” during such interviews.  That was the purpose of the interview, Mr. Brennan, not because you have some wonderful insights to provide Mr. Durham and his investigators to make their job easier.

One important distinction between “target” and “witness” that is not well understood, but might be in play here, is that it is against DOJ policy to issue a grand jury subpoena to someone who is already a “target”.

A grand jury subpoena is a court order, under threat of contempt, to appear and answer questions under oath without the presence of counsel.  If a person is already a “Target”, the subpoena intrudes upon their Fifth Amendment right to remain silent and to be represented by counsel while undergoing “custodial” interrogation — they are under subpoena after all.  Witnesses before the grand jury are allowed to assert their Fifth Amendment right, but it forces them to assert that right before the grand jurors considering charges against them.  The government is not allowed to call a criminal defendant to take the stand in his trial and force him to assert his Fifth Amendment right to remain silent in front of the jury.  It is deemed prejudicial, and suggest to the jury that the defendant has something to hide.  The same principle applies to calling a “Target” in front of a grand jury and forcing them to assert their right to remain silent in front of the grand jurors without counsel present.


So, if John Brennan isn’t at least a potential “target,” why was he not called to explain historical events to the grand jury?

Finally, John Brennan has many times expressed the belief that any investigation initiated by the Trump Administration into the actions of Obama Administration officials to examine their conduct as it pertains to the investigation of the 2016 campaign, and the aftermath of Trump’s election victory, is illegitimate.  John Brennan has all but declared Trump’s election to be illegitimate — heck, he might have said so outright.

So, it is not surprising at all that Shapiro — not Brennan — would claim:

Brennan questioned why the analytical tradecraft and findings of the ICA are being scrutinized by the Department of Justice, especially since they have been validated by the Mueller Report as well as the bipartisan Senate Select Committee on Intelligence review.

The idea that Brennan “questioned” Durham on this topic does not confirm that Durham had any response to offer to Brennan’s question.  I suspect Durham did not react favorably — if it happened at all — to Brennan’s suggestion that Durham’s work was illegitimate or superfluous because of what others might have done, or not done as the case may be.

But John Brennan cannot help himself in this regard.  The CIA is rarely put in a position of having to explain or defend its conduct — purposely and by design.  But when John Brennan has been in that position in the past, he’s been quite comfortable with lying in his responses.  More of the same here.

John Durham and his team did not come to the decision to interview Brennan over the course of eight hours for the purpose of “filling in the blanks” on “events that are under review.”


The purpose of the interview was to get Brennan to confirm or deny information that others have provided up to this point about Brennan, and what he instructed others to do.

John Brennan was placed into a perjury trap yesterday because he’s shown himself willing to perjure himself in the past in order to evade scrutiny.

Yesterday, the ability to avoid the trap was completely within his control — all he had to do was tell the truth.  For the most part, Durham’s investigators knew the truth.

John Brennan doesn’t come from a world of objective “truths” and “lies”.  For Brennan, the “truth” is always malleable to fit his needs at any given moment.

That’s CIA tradecraft.  He sees himself as a master of such “dark arts” based on his decades in DC.  Others have long viewed him as a clown.

That’s why, as a prosecutor, you save a liar like John Brennan for last.  He can’t help you because you can’t rely on what he tells you.

So your interview is not done for the purpose of helping your case.

And you do it in Virginia and not DC because of what you plan to do next.







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