The FBI and Justice Department may face steep obstacles if they pursue prosecutions against former FBI Director James Comey and former CIA Director John Brennan over their roles in the Trump-Russia investigation, despite growing scrutiny over the discredited Steele dossier’s influence and allegations of perjury before Congress.
Both Comey and Brennan are under federal criminal investigation for allegedly misusing intelligence and making false statements related to the 2016 election and their investigation of President Donald Trump, Fox News Digital first reported on Tuesday. The investigation reportedly stems from a referral issued by current CIA Director John Ratcliffe, who declassified a “lessons learned” tradecraft review on July 2 that criticized Brennan’s handling of the 2017 Intelligence Community Assessment that tied Russia’s election interference efforts to material support for then-candidate Trump.
Ratcliffe’s review casts Brennan’s role in that assessment in a new light, asserting that he “showed a preference for narrative consistency over analytical soundness” when he brushed aside concerns from intelligence experts over the reliability of the Steele dossier because its unvetted and salacious claims conformed “with existing theories.” Brennan wrote of the Steele dossier in an email in December 2016 that “my bottomline is that I believe that the information warrants inclusion in the report.”
Despite the new revelations, experts say much of the new interest still relies on old information that has been the subject of multiple congressional inquiries, special counsel investigations, and Inspector General examinations, all of which turned up no evidence that led to criminal charges against the most senior officials.
Fox News legal analyst Gregg Jarrett said on Hannity this week that the potential counts could include “defrauding the government, conspiracy, and deprivation of rights under color of law.” Jarrett added that the “knowingly” false use of the Steele dossier could form the primary basis for prosecuting government officials who advanced fabricated evidence to target Trump.
But bringing a case to trial in Washington, D.C., may be a nonstarter.
“You’d have to go to a grand jury in D.C. and get an indictment,” Jarrett said. “In D.C., bringing a case against a Democrat and a liberal is almost a fool’s errand.”
While the Justice Department has declined to comment on whether any active investigations exist, Trump and Brennan have addressed the reports.
Asked during a Wednesday White House event whether he was aware of any investigation into his longtime adversaries, Trump told reporters, “I know nothing about it, other than what I read today.” Still, he said, “They’re very dishonest people … maybe they have to pay a price for that.”
PRESIDENT TRUMP on the FBI investigation into James Comey and John Brennan
“I think they’re crooked as HELL, and maybe they have to pay a price for that… They are truly bad people.” pic.twitter.com/YIrGAWc80s
— Lilith (@Lilith198906) July 10, 2025
Brennan, appearing on MSNBC Wednesday, said he had not been contacted by the DOJ, FBI, or CIA and dismissed the investigation as politically motivated. “This is unfortunately a very sad and tragic example of the continued politicization of the intelligence community,” he told host Nicole Wallace, defending his agency’s handling of the 2017 intelligence assessment and criticizing Ratcliffe for initiating the tradecraft review in the first place.
“I know nothing about this reported investigation or referral to the DOJ, other than what I read in these press reports, these leaks, which are not really supposed to happen,” he added, although the investigation into Trump and intelligence agencies’ ultimately discredited suspicions about him and Russia were the subject of substantial leaks.
DOJ faces internal and procedural hurdles
Complicating the matter further is the absence of a permanent U.S. attorney in Washington, D.C., in the office that would lead any prosecution. A Senate confirmation fight looms for the nominee, currently interim U.S. Attorney Jeanine Pirro, a longtime ally of Trump who would likely be tasked with heading up a case against the pair of former directors if the FBI’s investigation uncovered further evidence of wrongdoing. The Senate is expected to vote on her confirmation next week after previous plans to confirm Pardon Attorney Ed Martin collapsed.
Career staff at the DOJ may also resist prosecution, particularly given Brennan and Comey’s prior standing and the unprecedented nature of the charges.
Adding to the uncertainty is the statute of limitations. While many of the alleged misdeeds occurred during 2016 and 2017 period, Jarrett argued that the timeline may be extended if it can be shown that evidence was “deliberately withheld or fraudulently concealed.”
Other experts, such as former federal prosecutor Neama Rahmani, were less convinced.
“This is old news,” he told the Washington Examiner. “You’re talking about events from 2016 and 2017. These are five-year statutes of limitation, so unless there’s something recent, it’s going to be very hard to prosecute.”
Echoes of Durham investigation
Rahmani said prosecutors may try to argue that Brennan’s 2023 testimony to Congress could restart the clock, but even that is murky, partially because those statements were not under oath. “If the comments were, maybe you get perjury. If not, maybe a Section 1001 false statement — or stretch it into a continuing conspiracy. But it’s weak.”
The statute Rahmani referenced is the same one used by former special counsel John Durham in 2022 against former Secretary of State Hillary Clinton’s former campaign lawyer, Michael Sussmann, for allegedly lying to the FBI during a 2016 meeting with the bureau’s then-General Counsel James Baker. According to the complaint, Sussmann told Baker he was not representing any client when he presented data alleging a covert communication channel between the Trump Organization and Russia’s Alfa Bank.
Prosecutors alleged that Sussmann acted on behalf of Clinton’s presidential campaign and a tech executive. However, a D.C. jury ultimately acquitted him, finding that prosecutors could not prove beyond a reasonable doubt that the statement was knowingly false and material to the bureau’s investigation.
Moreover, Durham’s review of the intelligence community assessment and his broader Russia investigation were unable to surface sufficient evidence to charge Brennan with a crime.
Comey and Brennan’s underlying conduct still worthy of scrutiny
Despite the potential challenges of bringing new indictments, the underlying conduct by Comey and Brennan still raises numerous red flags.
The ICA, produced over a condensed time frame of a few weeks in late 2016 and early 2017, concluded that Russian President Vladimir Putin sought to help Trump defeat Clinton in the 2016 presidential race. But the newly released records indicate Brennan received a December 2016 warning from his own deputy that including the Steele dossier — which was funded by Democrats, had not been verified, and was later discredited — would compromise the credibility of the assessment. The tradecraft review declassified by Ratcliffe concluded that Brennan’s team introduced “procedural anomalies” that deviated from standard analytic rigor, according to the report, to assert that the intelligence community believed Putin wanted to help Trump win.
Comey’s track record raises separate questions. As FBI director during the Obama administration, he authorized the use of the Steele dossier to obtain Foreign Intelligence Surveillance Act warrants on Trump campaign aide Carter Page despite the bureau lacking verification for any of the document’s key claims. In a 2018 closed-door testimony before congressional investigators, Comey attempted to defend the dossier, even suggesting some Republicans had also backed its production, despite being aware that the Clinton campaign had its own plans to promote Trump-Russia ties to the public for political reasons.
Comey has also drawn attention for his erratic post-government behavior. In May, he posted and deleted an image to Instagram featuring the number “86 47” in seashells that was widely interpreted as a call to kill the 47th president. The Secret Service reportedly questioned him afterward, and a recent New York Times report cited three government officials who said the agency tracked his location using his cellphone data.
Trump’s DOJ must navigate weaponization claims
Although Trump himself has long alleged misconduct by Comey and Brennan, his administration’s push for prosecution risks reinforcing claims that he is now weaponizing the Justice Department. Critics argue the investigations could be viewed as retaliatory, particularly after Trump’s frequent public attacks on both men.
An MSNBC opinion column called the investigations “a sign of escalating authoritarian energy,” warning that they may serve more to vindicate Trump’s narrative than to hold former officials accountable. The author pointed to current FBI Director Kash Patel’s past statements labeling Comey and Brennan as part of the “Deep State” as evidence of potential bias.
Yet the reality of Brennan and Comey’s conduct — particularly their reliance on false evidence, failure to follow protocol, and contradictory testimony — remains worthy of investigation, say supporters of the investigation, who further argue that federal law enforcement has a duty to revisit past abuses, even if politically fraught.
Legal experts say an indictment could be met with immediate malicious prosecution defenses — arguments Trump previously attempted to raise in his own criminal cases last year. Likewise, judges in the nation’s capital, many of whom were appointed by Democrats, may be more receptive to those claims from Comey or Brennan than they were when they came from Trump.
While the DOJ has not publicly confirmed or denied any active investigation, the stakes are clear. In the eyes of Trump supporters and longtime detractors of Comey and Brennan, successful prosecution could help reset accountability standards for federal law enforcement. A failed case could backfire legally and politically, further eroding public trust in impartial justice.
JAMES COMEY AND JOHN BRENNAN UNDER INVESTIGATION BY DOJ FOR TRUMP-RUSSIA INQUIRY
Still, prosecution remains an open question that likely won’t be resolved for several months.
“These are political and investigative decisions,” Rahmani said. “They’re rarely investigated — much less prosecuted.”