Investigating John Brennan and James Comey -- And Whoever Else -- Is In The Public Interest

Even without an indictment, there is a compelling justification for the results to be published in a report -- and that would not be inconsistent with DOJ policy.

This is not an article about the details of the Trump-Russia Hoax, nor is it an effort to provide any analysis of what an investigation of John Brennan and James Comey might uncover nine years after their efforts to prevent Donald Trump from winning the Presidency in the contest against Hillary Clinton.

But there have been a sequence of events over the past few days, as well as news reports of activity within the Justice Department, that all support the conclusion that criminal prosecutors have opened a criminal investigation into the prior FBI criminal investigation called “Crossfire Hurricane.”

First, the CIA issued a public report — “Tradecraft Review of the 2016 Intelligence Community Assessment on Russian Election Interference” — documenting the irregularities and shortcomings in the preparation of the January 2017 “Intelligence Community Assessment” (ICA). The ICA was supposedly an analysis of Russian Federation efforts to influence the outcome of the 2016 election, with the working hypothesis that Russian President Putin sought to help Pres. Trump win. Brennan and Comey had direct involvement with shaping the content of the ICA, and both insisted that various aspects of information found in the “Steele Dossier” memos be included in the Assessement.

At the time they did so, both had knowledge that the provenance of the information was not only suspect, but that the information itself was actually false and that it had been crafted in the first instance as a campaign “dirty trick” by the Clinton Campaign in the Spring and Summer of 2016. Campaign operatives — of which Brennan could described as an unofficial member — successfully worked to get individuals in federal intelligence and law enforcement communities to treat the information as if it was bona fide “raw” intelligence that warranted further official scrutiny to confirm and act upon. That led to the combined intelligence and criminal investigation in the FBI named “Crossfire Hurricane.”

Also this past week, news reports were that CIA Director James Ratcliffe sent a “Criminal Referral” of Brennan and Comey to the FBI based on allegations that their testimony before Congress about the ICA was likely false, and that DOJ and FBI have now opened criminal investigations of both as a result.

Voices in this arena that I very much respect are cautioning against going down this path as it smacks of “retribution” and only continues the cycle of “politicizing” the work of the Justice Department in pursuing a political enemies last. I’m not contesting that one or both are likely true, and I respect opinions of those who believe the only way to break this cycle is to bring an end to the practice.

But I see a salutary effect that outweighs these admittedly unfortunate aspects of turning a spotlight on what Brennan, Comey, and others did in the name of the United States. The Attorney General of the United States needs to provide the country with a comprehensive account of what happened through the use of powers given by the electorate to those involved, and what their motives were.

Yes, in large measure the answers to those questions are known. But those answers have never been produced as part of an official finding and record of DOJ about misconduct of its own work force.

This does raise the issue of the propriety of using the unique evidence gathering tools for criminal investigations by the Justice Department for such an exercise. But a senior Cabinet Official has submitted a referral for criminal investigation of previous senior government officials — including his predecessor — for untruthful testimony before Congress about their actions while in those senior positions. DOJ and FBI are in the position of either ignoring that referral or taking it up based on the predicated factual basis supplied by the referral. If that is facially invalid, they can close it out.

But once open, there are no “limits” on the scope of the investigation — it goes wherever the information developed leads.

Maybe it leads nowhere.

Maybe it does.

There is only one way to find out.

But what about the statute of limitations? Isn’t the prosecution of federal crimes limited to a period of five years after the crime was committed?

Yes, as a general proposition, that is true. But whenever an investigation involves two or more participants, the possible existence of a “conspiracy” is always a question on the table.

“Did two or more individuals agree with each other, and maybe others, to commit one or more crimes; and did any member of the conspiratorial agreement commit an overt act in furtherance of the criminal objective(s)?”

You cannot determine if there was a conspiracy without examining the discreet conduct of each subject, and any connections between them. Discussions, communications, acts-in-concert, etc., all bear upon “state of mind” and the purpose behind the connections. Those are found from interviews and review of documentary and electronic data. Investigations pull all that information together with a level of confidence that you have everything you need — on all sides of the subject.

Because a conspiracy — by definition — takes place over time and space, while the first overt act is the marker showing that a criminal conspiracy has been formed, the last overt act in furtherance of the conspiracy marks the end. The statue of limitations starts over again every time there is a new overt act in furtherance of the conspiracy. So, for example, if there was a conspiracy between 4 people to rob banks, every bank robbery would set the statute of limitations back to day 1, with a new 5 year period beginning on prosecuting the conspiracy. The individual bank robberies — the substantive crimes — would all have statutes of limitation that run from the day of each robbery, but the statute on the conspiracy would not start until the last overt act.

There are circumstances where a conspiracy can persist beyond the criminal objectives that were the reason of the conspiratorial agreement. Overt acts taken to conceal the existence of the conspiracy or the substantive crimes can extend the timeline of the conspiracy. General efforts to avoid detection are normally not enough. Something closer to destroying evidence or intimidating witnesses is necessary, i.e., efforts to defeat the likelihood that the crimes will ever be uncovered. This is a narrow sub-category of concealment actions, and not all efforts to conceal the conspiracy will fall in that narrow category.

Whether any overt act intended to conceal the existence of a conspiracy fits within that narrow category that would cause the statute of limitations period to reset is a question that can only be answered AFTER an investigation that uncovers such overt acts after the objectives of the conspiracy are achieved. You can’t simply dismiss the idea that such acts were taken before you endeavor to look for them.

Could Brennan and Comey’s false statements be such acts? That is a question that requires an understanding of the underlying conspiracy. You can’t understand the underlying conspiracy — if there was one — without conducting an investigation.

With all of that as a prelude, what is accomplished if there is an investigation, the investigation reveals a criminal conspiracy as well as the conspirators, but there are no overt acts that would extend the statute of limitations in order to make it a prosecutable case? Is the only option at that point to close the investigation and say nothing about what was uncovered? What about DOJ’s policy of not making public comments on cases where a decision is made to not seek and indictment. The individuals involved retain the presumption of innocence and DOJ only comments on evidence of criminal conduct through court proceedings.

It has always been DOJ policy to not make public comments on investigations where it makes a decision to not obtain an indictment.

That is the policy — but it is not the law.

The text of the policy includes the basis for making exceptions. This element of the policy is rarely discussed. But an exception should, in my opinion, likely apply here depending on what is uncovered by the investigation by barred from prosecution by the statute of limitations.

The Policy is set forth at Title 1-7.001 of the Justice Department Manual and in pertinent part it reads as follows:

The Policy governs the protection and release of information that DOJ personnel obtain in the course of their work, and it balances four primary interests: (1) an individual’s right to a fair trial or adjudicative proceeding; (2) an individual’s interest in privacy; (3) the government’s ability to administer justice and promote public safety; and (4) the right of the public to have access to information about the Department of Justice.

The Policy provides internal guidance only and does not create any rights enforceable in law or otherwise. DOJ components may promulgate more specific policies, consistent with and subject to this Policy.

The policy interest reflected in (4) becomes complicated when DOJ personnel are potentially implicated in a conspiracy in the performance of their official duties. The policy reflects INTERNAL guidance only, and as noted in the bottom paragraph there is no enforceable right created in favor of any individual by the Policy to prevent public disclosure of information that might be prohibited by the policy.

Further guidance is set forth in the Code of Federal Regulations — 28 CFR Sec. 50.2. In that regulation, subsection (b)(9) reads as follows:

Since the purpose of this statement is to set forth generally applicable guidelines, there will, of course, be situations in which it will limit the release of information which would not be prejudicial under the particular circumstances. If a representative of the Department believes that in the interest of the fair administration of justice and the law enforcement process information beyond these guidelines should be released, in a particular case, he shall request the permission of the Attorney General or the Deputy Attorney General to do so.

When the evidence shows that DOJ personnel were drawn into engaging in conduct that itself comes under investigation by the official actions of government actors outside DOJ, a full understanding of what happened is going to require a recounting of the conduct of those other government actors.

The Policy binds all DOJ personnel — except the Attorney General. It is the authority of the Attorney General over the DOJ workforce that is the basis for imposing discipline on any employee who violates the policy. But the Attorney General isn’t going to discipline him/herself if he/she makes a judgment that an exception to the policy is warranted — one of the four interests reflected in the policy favors disclosure of information, and outweighs the other three.

The broad outline of the illegitimate — and maybe criminal — Crossfire Hurricane investigation is set forth by the following INCOMPLETE list of bullet points:

• The Clinton Campaign engineers a political “dirty trick” exercise to create press coverage of a “supposed” connection between the Trump Campaign and Russian governmental actors who are alleged to seek to influence the outcome of the 2016 Presidential election in favor of Trump over Hillary Clinton.

• A retired foreign intelligence officer is commissioned and paid by the Clinton Campaign to created a portfolio of memos supposedly exposing a quasi-plausible series of contacts and connections between individuals connected to the Trump Campaign and Russian government actors prior to and during the 2016 campaign.

• The work product of that individual is directed into the hands of the FBI in a variety of ways in the same time context that it’s existence and content is slowly being rolled out to individuals in the media who are overtly hostile to the Trump Campaign and Pres. Trump.

• There is substantial evidence that John Brennan as CIA Director had advance notice of the substance of the allegations, had notice of the dubiousness if not actual outright fabrication of those allegations, yet pushed them into the intelligence community for the purpose of pressuring the FBI to formally open an investigation of them with the intent that the press cover that investigation as if the allegations were legitimate.

• With no effort to make an independent verification of the predication, the FBI created an ad hoc task force that was run out of FBI HQ, with handpicked personnel and a direct line of reporting to the Deputy Director that bypassed several lower levels of supervision. That task force immediately began using investigative tools available to it to review the communications of members of the campaign of the candidate of the party out of power in an effort to determine if that candidate was the agent of a foreign power deemed to be “hostile” by the Administration in power.

• These efforts included obtaining court authorization to monitor communications in real-time just three weeks prior to the election, based on an affidavit that included untruths, half-truths, and rank speculation taken from the Clinton Campaign “Opposition Research” as part of its supposed “probable cause” — while purposely obfuscating that as the source of the material. The application was submitted AFTER the FBI had cause to deem the source of information “Unreliable” under normal FBI standards based on him having violated the express terms of his Source Agreement.

• The Directors of the FBI and CIA then prepared — at the instruction of the sitting President of the opposition party — a joint report of the intelligence community. They insisted, over professional analysts objections, that it incorporate certain aspects of the false campaign opposition as part of the justification for determining that the Russian Government assisted President Trump in winning the election. This provided additional support for a further inquiry by the FBI in whether the newly elected President of the United States was a witting or unwitting agent of a hostile foreign power.

• This further support came is the same timeframe the FBI learned that the primary sub-source for the most significant allegations in the Clinton Campaign opposition research was previously investigated by the FBI for having connections to Russian intelligence officers in the United States. That investigation included allegations the sub-source had solicited national security officials in the Obama Administration to pass classified information through him to Russian intelligence operatives in exchange for payment. The FBI closed out that investigation several years earlier based on a belief the individual had left the U.S. and returned to Russia, but it NEVER determined he was not a Russian intelligence operative.

• This investigation was initiated and continued based on the unconstitutional premise that it was for the FBI and CIA to independently decide what foreign countries were “hostile” to the United States, and that a President-Elect was subject to being independently “checked” by the FBI and CIA in connection with that President’s proposed foreign policy views as understood by the CIA and FBI.

• Days before the scheduled inauguration, FBI and CIA likely leaked to the media the fact that the FBI had begun an investigation into alleged “collusion” between the Trump Campaign and Russian government actors.

• Days after the inauguration the FBI conducted an interview under false premises with the duly appointed National Security Advisor, a member of the Office of the President.

• Weeks after the inauguration the FBI persuaded the confirmed Attorney General of the United States that it was necessary for him to recuse himself from any involvement in the ongoing FBI investigation of the President and his Campaign staff.

• The FBI failed to comply with DOJ/FBI policy to inform the Director of National Intelligence, Speaker of the House, Senate Minority Leader, Chairman and Ranking Member of the Intelligence Committees for each House of Congress about any significant counter-intelligence investigation under way. This policy was to brief the respective parties quarterly, but no such briefing was provided to Congress between July 2016 when the investigation was opened, and March 2017 when Comey testified to its existence before Congress.

Obviously, this list could go on, and dozens of more bullet points could be inserted above and below where I ended. The FBI’s efforts over 11 months were then transferred to the Mueller Special Counsel’s Office, which perpetuated what was revealed to be in the end a fabricated and baseless original premise.

All done by Government actors at the direction of the leadership of the FBI and CIA.

The outcome of this investigation may take the form of an indictment that withstands legal challenge.

If not, a public report by the Attorney General into the conduct of members of the Department of Justice and CIA within the course and scope of their official duties would be justified on the premise of policy interest (4) in the DOJ Manual — “the right of the public to have access to information about the Department of Justice.”

The Department of Justice does most of its work behind a shroud of secrecy — for good reason. But when actors and leadership of the Department of Justice engage in misconduct — particularly misconduct that might have been criminal but for some reason will escape prosecution — that misconduct MUST be revealed.

No rights are compromised. No jury pool would be influenced by the release of information. No DOJ official would be at risk of losing his/her liberty without the rights guaranteed by the Bill of Rights and due process of law.

But accountability would be had. Being subject to accountability by the public in whose name the DOJ and FBI — and CIA — operate is a price you agree to pay in advance when you exercise the authority that comes with a position in the DOJ, FBI, and/or CIA.

Captain’s Note:

I attempt to produce at least 2 articles similar to his every week for paid subscribers. Sometimes events lead me to produce even more — last week it was 5 published articles in 8 days. The events of the moment determine what I write about here and other places where my articles are published.

But this is always my first option for what I think are stories that require the most attention. What I write here is regularly longer than 2000 words — many times more than 3000 words. What I publish elsewhere is generally 1200 words or less. So, I provide the most indepth analysis — the long-form “lawsplainers” — to subscribers here. Most take a least a day — some longer — and I squeeze them in around various kinds of other legal work. Usually this is my first stop each morning around 5:00 am., and it is the last thing I work on at night until I just can take any more.