John Brennan went to court in July, wanting the Justice Department to save records from investigations involving him. His lawyers argued the material would be essential to challenging any future prosecution as politically motivated.
There was one problem. Nobody had charged him. Nobody had said they would, either.
Brennan sued anyway. On Thursday, Biden-appointed U.S. District Judge Jia Cobb dismissed the case. She is not exactly a Trump ally. Brennan hadn’t shown that DOJ was destroying evidence or that he faced any immediate harm.
His own lawyer admitted the request was unusual. But he argued that DOJ had already demonstrated its hostility toward Brennan and couldn’t be trusted to keep records that might help him challenge a future prosecution.
Cobb wasn’t buying it. Brennan’s suspicions, however strongly held, weren’t proof that anybody was deleting anything. And without an actual or imminent injury, there wasn’t much for a federal court to do.
“To have standing to seek forward-looking relief, a plaintiff must allege an injury that is ‘imminent,’ rather than one that is ‘conjectural or hypothetical.’”
She also called it “speculative whether Defendants are deleting records relevant to a future vindictive- or selective-prosecution defense.”
Brennan, meanwhile, still has the investigations to worry about.
One involves his 2023 testimony before the House Judiciary Committee and whether he made false statements. The other is a Florida-based investigation into whether former intelligence and law enforcement officials conspired to keep Donald Trump from power. Brennan received a grand jury subpoena in the latter case, though his appearance was postponed. Prosecutors also reportedly still consider him a target in the false-statements investigation, according to his attorneys.
He denies wrongdoing.
Following the dismissal, Brennan’s attorneys were quick to point out that Cobb hadn’t ruled on whether DOJ was targeting him for political reasons. The judge dismissed the lawsuit over standing. They also said the department had refused to promise it was preserving communications that could expose the thinking behind the investigations.
Cobb, however, wasn’t particularly charitable toward prosecutors in the rest of her opinion.
According to Brennan’s allegations, one investigator concluded the evidence against him was too weak to bring charges. Joseph diGenova, later tapped to head the broader investigation, reportedly resigned after questioning the ethics of pursuing indictments without evidence. Cobb included both episodes in her ruling.
“One might think that these statements would lead to the termination of the investigations. Instead, Brennan alleges, it has led to the termination of the investigators.”
Not exactly a ringing endorsement of the investigation.
But the judge’s misgivings didn’t give Brennan standing to sue. His attorneys have already promised to argue political retaliation if prosecutors indict him. DOJ hasn’t filed charges, and Brennan hasn’t established that investigators destroyed the records he’s worried about.
There was no criminal case for him to defend against Thursday. Just the possibility of one, and a court that wasn’t interested in helping him prepare for it.
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