Former CIA Director John Brennan’s lawyers told a federal judge on Monday that charges are looming in two investigations being handled by federal prosecutors in Florida, urging her to take the highly unusual step of ordering the government to preserve records before any indictment is made.
Kenneth Wainstein, an attorney for Brennan, said his client is a target of investigations into alleged false statements to Congress and into whether he played a key role in conspiring to deprive President Donald Trump of his rights.
“He’s still the target. He has been identified as the target of those investigations,” Wainstein said, adding his team is fully expecting a prosecution and that it is a matter of “imminence” for the judge to consider.
The revelations in the courtroom came just hours after his attorneys revealed in filings that Brennan has been subpoenaed to appear on Oct. 15 before a grand jury in Fort Pierce, Florida, in the broader conspiracy investigation.
U.S. District Judge Jia Cobb, an appointee of former President Joe Biden in Washington, D.C., appeared skeptical that an injunction was warranted, questioning what protection it would provide beyond existing obligations and remedies available in a future criminal case.
“What is me issuing an injunction going to do to put you in a different position?” she asked Brennan’s attorneys.
Brennan, who attended the Washington hearing, wants records preserved to support a potential challenge to any future charges as vindictive prosecution. His lawyers emphasized that they were seeking preservation, not immediate access to internal communications.
“Maybe we’re asking for something that’s a little unprecedented,” Wainstein said toward the end of the hearing. “But it’s needed due to the conduct of this administration.”
Wainstein attempted to paint his own narrative that Trump officials were conspiring against his client.
He pointed to specific examples, such as Attorney General Todd Blanche and FBI Director Kash Patel discussing the Brennan investigation with Fox News host Sean Hannity, while suggesting that the administration has similarly sought to conceal records in a separate civil lawsuit involving the Federal Emergency Management Agency.
The government’s attorney argued that the request would require Cobb to speculate about whether Brennan will be indicted, what charges would be brought, and which documents might matter to his hypothetical defense.
“Federal courts are not in the business of policing document preservation,” the attorney said, adding that any challenge to the nature of a hypothetical prosecution could be handled in the proper jurisdiction, not thousands of miles away in Washington, D.C. federal court.
A judge overseeing any eventual prosecution would be better positioned to address those questions, the government argued. The DOJ lawyer also maintained that Brennan had not established a present constitutional violation warranting relief.
“It’s speculative whether there is going to be an indictment,” the attorney said.
Brennan’s co-counsel, Dan Gelber, countered that his client did not need to establish that charges were certain.
“We don’t have to prove that he is going to be indicted. We just have to prove that there’s a substantial risk,” he said.
Gelber argued that remedies imposed after evidence disappears would offer inadequate protection.
“Once you lose the documents, they’re gone forever,” he said.
Cobb questioned how she could assess a future vindictive prosecution challenge without knowing whether charges would actually materialize. She also pointed to potential sanctions if the government destroys evidence.
But she pressed the government, too, asking about a hypothetical instruction to shred records concerning someone facing prosecution.
“Why can’t someone come to court before a violation occurs to try and stop it?” she asked.
The government attorney said such conduct could violate existing laws and undermine a subsequent prosecution, while disputing that it would establish a current constitutional violation, as Brennan’s lawyers argue his Fifth and 14th Amendment rights are implicated.
Wainstein cited examples they believe clear the tall barrier needed for relief, such as Trump’s public demands for a prosecution, senior officials’ public statements, and changes in prosecutors on the case as evidence of political animus. He pointed to the recent resignation of Joe diGenova last week as part of that upheaval, and he cited a former acting U.S. attorney whose Signal messages were set to “auto-delete” as evidence.
Brennan has denied lying during his 2023 congressional testimony about the intelligence community’s assessment that Russia sought to help Trump win the 2016 election. Documents made public during Trump’s second presidency have revealed that the CIA had little to no actual evidence supporting that conclusion, but that Brennan pursued it anyway because it fit a narrative.
His critics, including House Judiciary Committee Chairman Jim Jordan (R-OH), have accused him of supporting the inclusion of material from the Steele dossier in the assessment and later misleading Congress about the CIA’s role. Brennan has maintained that he opposed citing the dossier, which contained baseless claims suggesting Trump held illicit ties to Russia, and that it did not inform the assessment’s conclusions.
The broader “grand conspiracy” inquiry encompasses investigations from Russian election interference to Trump’s retention of classified documents at Mar-a-Lago, brought by former special counsel Jack Smith under the Biden administration. Defense attorneys indicated the false statements investigation traces back to the grand conspiracy one, suggesting that Brennan is the “target” of both.
Subpoenas seeking testimony in the false statements investigation were issued in the spring and withdrawn in favor of voluntary interviews. Prosecutors have issued new grand jury subpoenas in recent weeks, adding to his attorneys’ concerns about an imminent indictment.
Brennan’s lawyers said the records would help establish prosecutors’ motives in a future challenge.
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“We don’t know what the charges will be. Therefore we don’t know what documents will be relevant,” Wainstein said. “It doesn’t matter if those documents will be gone.”
Cobb said she would take the argument under advisement but appeared cautious of ruling in favor of the defense, as the government argued there was no constitutional violation that would warrant her extraordinary intervention when charges had not even been filed.