Did Obama’s National Security Team Break the Law?

Tulsi Gabbard, Trump’s director of national intelligence, says that the “Russiagate” documents she released last week prove a “treasonous conspiracy” spearheaded by Barack Obama with the help of Obama’s CIA director John Brennan, his director of national intelligence James Clapper, and his FBI director James Comey. The object of this conspiracy, according to Gabbard, was to gin up a story, knowing it was false, according to which Russia used cyberattacks to help Trump win the 2016 presidential election, and even colluded with the Trump campaign to do so.

As one might expect, MAGA social media has gone off the rails, calling for Obama to be executed, because treason is a capital offense. Meanwhile the legacy media—to the extent they’re covering the story at all—say there’s nothing new in the Gabbard files, and certainly nothing prosecutable.

What does the law have to say about all this?

First, a spoiler: Obama is not guilty of treason. Beyond that, and with the caveat that I’m no intelligence expert, here’s my conclusion: While Gabbard appears to have made some mistakes in the claims she has made, her files do indeed contain startling new information—with serious legal implications.

First, let’s get the treason canard out of the way. Treason is the only crime defined by the Constitution—and it’s defined extremely narrowly, either as “levying war” against the United States or “adhering” to our “enemies.” None of that is alleged here.

And you can forget about Obama going to jail for any offenses. In the 2024 case of Trump v. United States, the Supreme Court announced broad principles of immunity for a president’s “official” acts. If a president goes out and shoots his wife’s paramour, that’s personal, not official. But if Obama ordered his intelligence captains to compile a report with everything they had on Russian interference in the 2016 election, that’s official, no matter what Obama’s motives might have been.

Which is a very good thing. The left excoriated Trump v. United States when it was decided, furious that the leading Republican candidate for president couldn’t be jailed before anyone had a chance to vote for him. But as some of us said at the time, the Court’s ruling forestalled a never-ending cycle of prosecuting ex-presidents. Even if the left’s partisan prosecutions of Trump go forever unredressed, that cycle is the last thing this country needs.

For Brennan, Clapper, and Comey, however, it’s a different story.

They aren’t protected by presidential immunity, and while they certainly didn’t commit treason, the Gabbard files lay out conduct that could well have been criminal.

The key facts concern a January 2017 Intelligence Community Assessment (ICA) supervised by those three men under orders from Obama. The ICA stated that Russia sought to promote Trump’s election. This was already well-known. But the more complete version of the ICA released by Gabbard shows something we didn’t know. It supported its conclusion with a reference to the notorious, now-discredited Steele dossier—a compendium, paid for by the Clinton campaign, of supposed collusion between Russia and the Trump campaign and of supposed Trump misconduct known to the Kremlin, including some genuinely vile stuff. By treating the bogus Steele dossier as credible, the ICA hinted that—as Clapper himself actually said in interviews in late 2017—Trump might be a Russian “asset.”

The use of the Steele dossier in the ICA is a very significant revelation, because Brennan, Clapper, and Comey all claimed that they never pushed the dossier and swore that the assessment did not rely on it.

In 2017, Brennan testified under oath to Congress that the Steele dossier “wasn’t part of the corpus of intelligence information that we had. It was not in any way used as a basis for the Intelligence Community Assessment that was done.” This falsehood is compounded by the fact that the Gabbard files include documents showing that Brennan himself insisted on including the Steele dossier in the ICA, over the objections of senior CIA Russia analysts who said it “did not meet even the most basic tradecraft standards.”

Similarly, in 2023, Clapper swore to a congressional committee, “We didn’t use [the dossier] in our Intelligence Community Assessment.” Would Obama’s director of national intelligence really lie under oath to Congress? There’s very strong evidence that he had done so before. In 2013, Clapper swore that the NSA did not collect data on millions of Americans, when in reality it did—and he knew it did. He later defended himself by saying his “No” answer was the “least untruthful” thing he could have said—which, whatever else it is, is not a defense to perjury.

As for Comey, he swore in 2020 that the Steele dossier “wasn’t sufficiently corroborated to be in the body of the Intelligence Community Assessment.” But as we now know, thanks to the newly declassified documents, not only was the dossier referred to in “the body” of the ICA; Comey actually pushed for its inclusion.

Perjury prosecutions are tricky. You have to catch someone not merely being misleading or deceitful, but straight-up misrepresenting a fact under oath. In addition, the statute of limitations for perjury is generally five years, and all the statements quoted above—except for Clapper’s 2023 statement—are or soon will be (in the case of Comey’s 2020 testimony) outside the limitations period.

But a case can be made that conspiracy to defraud the United States took place as well. That’s a different crime.

If Brennan, Clapper, and Comey jointly tried to deceive investigators or Congress about the strength of the Russiagate allegations, or about their use of the Steele dossier in the ICA, they may have conspired to defraud the government. If they agreed to withhold material information from Trump when they briefed the new president in 2017, that could also be considered a conspiracy to defraud the government. Unlike perjury, that crime extends much more broadly to deceitful attempts to impede legitimate government functions. And as a conspiracy crime, the statute of limitations starts anew, for every member of the conspiracy, with any act that furthers the conspiracy. Thus Clapper’s 2023 false statement to Congress could, in theory, make all three men prosecutable.

It should not be forgotten that Brennan and Clapper were among the 51 senior former intelligence officials who signed the notorious October 2020 letter implying that the Hunter Biden laptop story was Russian misinformation. Perhaps all intelligence directors are ready, willing, and able to deceive the American public—and feed falsehoods to the media—to promote candidates they prefer or damage candidates they don’t. I’m not sure how prevalent that is, but it appears to describe the men at the helm of Obama’s intelligence team.