Was Brennan Put In A Perjury Trap?

The answer, in my understanding, is: No, not strictly speaking.

Earlier today I wrote a number of things along the lines that just because Brennan may have been told that he wasn't a target or a subject but was being interviewed as a witness, that doesn't mean he's "out of the woods". For example:

All that said, Brennan is clearly not out of the woods yet. As others have noted, there's only one reason why Durham waited so long before interviewing Brennan--because he was trying to learn as much about Brennan's Russia Hoax related activities as possible before talking to him. And that means Brennan was right up at the top of the list of persons of interest.

In other words, if Brennan was interviewed as a witness for eight hours, that was a whole lotta witnessing going on. Durham must have had a lotta, lotta questions for Brennan as a witness.

Now, Shipwreckedcrew has a new article up about the circumstances surrounding the Brennan interview, and the statements that were made afterwards by Brennan's spokesman: John Brennan Was Put in a Perjury Trap Yesterday — A Completely Legitimate One. The article is well worth your time to read, because in it SWC explains things like:


Q: What's a target and what's a subject?

A: There are only targets and non-targets. Non-targets are witnesses. Targets are persons against whom a prosecutor believes he has sufficient evidence to file criminal charges.

Here's another topic he goes into:

Q: Why was Brennan interviewed rather than called before a grand jury?

And closely related:

Q: Why was Brennan interviewed in Langley, VA, rather than at FBIHQ or DoJ, in downtown DC?

Let's take the interview v. grand jury question first. SWC doesn't provide a definitive answer to the question, but he does suggest that the reasons that led Durham to interview Brennan may cast doubt on whether or not Brennan is a target. Here's the key:

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”.

In other words, SWC is implicitly asking: Is it possible that Brennan wasn't called as a witness before a grand jury because he is in fact a target? To place that suggestion is context, SWC had earlier stated that his policy as a prosecutor, when asked before an interview by a defense lawyer whether the lawyer's client was a "target", was to talk around it and neither confirm nor deny. SWC clearly feels that Durham is likely to have done something similar.

But supposing that Brennan was interviewed as a witness, what then? That's where SWC raises the possibility of a "perjury trap":

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.

That sounds right to me, except for one thing. Remember the Michael Flynn case? Flynn wasn't charged with perjury, was he? He was charged with making a false statement. He wasn't charged with perjury because he wasn't under oath. And witness interviews are not conducted under oath unless they're conducted in front of a grand jury. So my understanding of this situation is that SWC is speaking in layman's terms and that Brennan was placed in a "false statement trap." If he lied, he faces the possibility of being charged under 18 USC 1001, not for perjury in the true sense of the word.

That takes us back to the site of the interview: Virginia. Here's how SWC explains that:

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.

...

... 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.

Note that in answering this question SWC reverts to more technically correct language. He doesn't say: Brennan will be charged with "perjury" in the EDVA, he says that will be "the venue for that 'false statement' crime." So, 1001 false statements are what are in play here, not perjury in the strict sense of a false statement made under oath. So keep that in mind going forward, just to avoid any possibility of confusion.

The final question, one which SWC doesn't raise in this article, but which should have popped into your mind, is: All this being true, why would Brennan submit to the interview? Surely he has excellent lawyers, who would have warned him about the dangers involved in such an interview? 

A couple of weeks ago we discussed that issue, and at that time I offered the opinion that I saw little for Brennan to gain from submitting to an interview. I also quoted SWC, who was of a similar opinion, but thought that Brennan was doing it for the sake of "appearances." I'm skeptical of that. As a defense lawyer advising a client--a position I've never been in--I'm not sure I would ever suggest that my client take that sort of a risk, the risk of voluntarily laying oneself open to criminal charges. I personally still lean toward the view that Brennan is very much afraid of being indicted, and so took this risk in the hope of talking Durham out of charging him. That might explain why his spokesman's statement, while savaging Barr and Trump as usual, praised Durham's "professionalism."

We shall see.