John Brennan, the disgraced former Director of the CIA, committed perjury before the House Intelligence Committee in May 2017 when he lied about his role in the Russia Collusion Hoax. The statute of limitations on perjury is, however, five years. But Brennan told essentially the same lies to a House Judiciary Committee investigator in May 2023. Those lies could be the basis of a perjury prosecution. I wrote about these events here. I also wrote about the practical difficulty of securing a conviction in a prosecution where the defense will be entirely political:
What are the chances that [Brennan] will be convicted of perjury? I assume that any prosecution will be venued in the Eastern District of Virginia, like the Comey prosecution. If it were in D.C., there would be no chance of a conviction, as the jury would be overwhelmingly composed of partisan Democrats. Is that any less true in Alexandria? The jury pool is probably a little less Democratic and a little less partisan in Alexandria, but I would think that securing a conviction will be an uphill battle, no matter how clear the evidence appears to be.
The Department of Justice obviously shared my skepticism of the quality of jury pools in the D.C. area, so they took the Brennan prosecution to Florida. Yesterday, Brennan’s lawyers sent an extraordinary letter to the Chief Judge of the United States District Court for the Southern District of Florida, Cecilia Altonaga. The letter begins by saying that John Brennan is the target of a grand jury investigation that is taking place in the Miami Division of that court. So it appears that an indictment of Brennan is imminent.
It goes on to allege that the Department of Justice is judge-shopping: it is scheming to “manipulate grand jury and case assignment procedures to ensure that this investigation and any resulting prosecution will be overseen by a particular District Judge of its preference.” Specifically, the lawyers write that the U.S. Attorney “is intent on steering this case to the Fort Pierce Division and to the sole judge who sits in that courthouse, Judge Aileen Cannon.” The “steering” apparently consists of a grand jury being impaneled in the Fort Pierce courthouse. But that grand jury was specifically approved by the Chief Judge to whom the lawyers’ letter is addressed (“Once Your Honor granted the request for an additional grand jury to be impaneled in Fort Pierce…”).
The letter goes on to attack Judge Cannon’s decisions that have favored the positions of President Trump, and to decry judge shopping.
The attack on judge shopping is rich, given that judge shopping has been essential to the Democratic Party’s strategy of tying up Trump administration policies in the courts, based on flimsy legal theories. But I think yesterday’s letter can best be seen as a threat: a threat that should John Brennan be indicted, and should the prosecution take place in Fort Pierce, the full weight of the Democratic Party will be brought to bear against the judges who are involved–Judge Cannon, and Chief Judge Altonaga herself.
The lawyers threaten to make Judge Cannon a witness on Brennan’s behalf:
The second prong will argue for Judge Cannon’s recusal based on the fact that she would be a potential fact witness to conduct underlying the government’s supposed conspiracy case. To charge that case with any semblance of proper venue in Florida, the government presumably intends to claim that the Mar-a-Lago classified documents search (which took place in the West Palm Beach Division) and the resulting prosecution of President Trump in the Fort Pierce Division were acts in furtherance of that conspiracy. Indeed, the only conceivable link between such a conspiracy theory and the Fort Pierce Division would be the actual prosecution of the classified documents case, which is identified by proponents of this conspiracy theory as one ofthe acts by which the conspirators “politicized and weaponized…law enforcement to take out Trump.”
Given that Judge Cannon presided over that prosecution, she would arguably be a fairly central fact-witness to that part of the charged conspiracy and therefore have to recuse herself from the proceedings.
Does this make sense? I am not an expert on venue in criminal prosecutions, but the relevant rule of criminal procedure says that “the government must prosecute an offense in a district where the offense was committed. The court must set the place of trial within the district with due regard for the convenience of the defendant, any victim, and the witnesses, and the prompt administration of justice.”
I don’t know where John Brennan’s perjury occurred, but presumably it was in or near the District of Columbia. So how does the case get to Florida? It is plausible that the government is bringing a conspiracy count along with perjury, and that part of the conspiracy was executed in Florida. This is unfortunate, as the case would be simpler and less vulnerable to misrepresentation by the press if it were limited to perjury. But a case anywhere near D.C. would probably fail on purely political grounds.
It is notable that, assuming venue in the Southern District of Florida is proper, there is no real barrier to the prosecution taking place in the Fort Pierce courthouse. This no doubt explains the lawyers’ extraordinary attack on Judge Cannon and their claims of judge shopping.
As for the Chief Judge, she has already approved the Fort Pierce grand jury that Brennan’s lawyers allege is part of a conspiracy against their client. They are warning Judge Altonaga that if the prosecution goes forward in Fort Pierce–or, perhaps, if it goes forward at all–the Democratic Party will smear her as the agent of a Trump-driven persecution of John Brennan.
What do Brennan’s lawyers want?
For all these reasons, we urge Your Honor to exercise your supervisory authority as Chief Judge to ensure the United States Attorney does not steer this matter to the Fort Pierce Division and to the courtroom of Judge Aileen Cannon.
There are various grounds on which a judge, having been assigned to a case, can be disqualified–prejudice against a party, and so on. But the threshold is very high, and Brennan clearly does not have grounds to disqualify Judge Cannon, assuming the case goes ahead in Fort Pierce and she presides over it. So his lawyers are instead trying to pre-empt Judge Cannon’s getting the case by means of their attack on the U.S. Attorney’s office and, implicitly, on Judge Cannon and Judge Altonaga.
To say that they are playing hardball is an understatement. Despite practicing law for 41 years, I don’t believe I have seen anything like it.
