Brennan attorney alleges DOJ 'judge-shopping' before federal judge

DOJ calls preservation bid premature; Cobb takes no immediate action

Former CIA Director John Brennan’s attorney Ken Wainstein told a federal judge Monday that the Justice Department is engaged in “judge-shopping” and is “blatantly trying to frame somebody for a crime that is complete fiction” as it pursues a grand jury investigation targeting his client. Wainstein made the allegations in U.S. District Court in Washington while arguing for an order requiring the Justice Department to preserve records from the investigations, calling those documents a “fertile source” of information about the government’s determination to indict Brennan.

“The reality is there’s no precedent for this situation,” Wainstein said in acknowledging the extraordinarily unusual nature of his preservation request. “I’ve spent decades in and around the Justice Department. I’ve never even conceived of a situation like this.”

In pressing his case, Wainstein cited what he said were directives by Trump to pursue perceived adversaries like Brennan and the replacement or resignations of prosecutors said to have raised internal doubts or concerns. “There’s a lot of really underhanded stuff going on” in these investigations, Wainstein told the court. He told the court that while he could not easily explain what crime the Justice Department could credibly accuse Brennan of committing, his client faced a substantial risk of being indicted given the Trump administration’s efforts to target him. “The message is very clear to the personnel at DOJ about what needs to happen,” Wainstein said.

Wainstein disclosed the subpoena while making the preservation arguments. The subpoena was presented last Thursday and requires Brennan to appear Oct. 15 before a grand jury in Fort Pierce, Florida — the home court of Judge Aileen Cannon, a Trump-appointed judge who in 2024 dismissed a Justice Department prosecution charging Trump with illegally retaining classified documents at his Mar-a-Lago estate in Florida. Wainstein said he was told that the subpoena relates to a “far-reaching” criminal probe examining a loosely defined theory that government officials who have investigated Trump over the last decade — including over Russian election interference in 2016 and his more recent retention of top-secret records at Mar-a-Lago — conspired to deprive Trump of his civil rights. The subpoena to Brennan is among a flurry that have been recently issued.

Wainstein said he was informed by a prosecutor that Brennan also remains a target in a separate inquiry into whether he lied to Congress about the creation of a U.S. intelligence community assessment detailing Russian interference on Trump’s behalf in the 2016 election. Brennan and his lawyers have called that allegation false. Subpoenas demanding Brennan’s testimony before a grand jury in the false-statements probe were issued last spring, then abruptly withdrawn in favor of voluntary interviews, Wainstein said.

The subpoena was delivered the same day Joe diGenova, the prosecutor who had been leading what is casually known as the “grand conspiracy” investigation, abruptly resigned amid what a person familiar with the matter has described as frustration from the Justice Department and White House over the pace and management of the probe.

In an interview with The New York Post, diGenova responded to criticism of his management of the investigation by saying, “If you want indictments where there’s no evidence, you have an ethical problem.” When reached by The Associated Press, diGenova said the comments were taken out of context, adding: “There’s plenty of evidence in all of these cases to prove the theories of prosecution. It just takes time to get there, and some people want to get there a little faster than others — and you can’t do that.”

The Justice Department has not publicly announced a replacement for diGenova. The member of the investigative team with whom Wainstein spoke was Kurt Olsen, a lawyer who unsuccessfully pushed the Justice Department in 2020 to back Trump’s false claims that the 2020 election had been stolen from him.

The Justice Department called Wainstein’s request premature and speculative and said Brennan had no right to demand the preservation since he was not a criminal defendant and it was not clear that he would ever be charged. Cobb did not immediately rule on Brennan’s request.

Wainstein said the preserved records would be needed for the defense to challenge any potential prosecution as unconstitutionally vindictive and selective. The defense team said the communications it is seeking include any messages showing Trump or White House officials directing the Justice Department to pursue their client. The team argued the preservation order was especially necessary because of what they described as the Trump administration’s pattern of failing to preserve records — a pattern they said they would invoke in mounting a vindictive-prosecution challenge.