Fox News senior judicial analyst Andrew Napolitano discusses the investigation into the origins of the Russia probe with FBN's Maria Bartiromo, particularly the developing disagreement between former FBI director James Comey and former CIA director John Brennan about which agency insisted on using information from the Steele dossier in the intelligence assessment of Russian interference in the 2016 election given to then-President-elect Trump.



Former House Judiciary Committee Chairman Trey Gowdy claims to have seen an email from Comey stating that Brennan "insisted" including the document, while Brennan testified in May 2017 that: "No, it 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’s assessment that was done."







MARIA BARTIROMO: Fox News senior judicial analyst judge Andrew Napolitano is here to walk us through it. What trey Gowdy was saying was there was an email that was sent by Jim Comey to his leading staff including [FBI counsel James] Baker, [FBI counterintelligence head] Peter Strzok, and [ FBI Deputy Director] Andrew McCabe and in that email he writes to them, "Brennan is insisting the crown material (being the dossier) be included in the intel assessment." Judge, that's different than what Brennan testified.



ANDREW NAPOLITANO: Well, you know, there's obviously a conflict between what one said in an email, presumed to be accurate because he's communicating to his staff, and what another said retroactively under oath. So it depends on how aggressive U.S. Attorney Durham in Connecticut, who is the person that the attorney general has assigned to examine this, use the word "examine" and its form, carefully, I'll explain in a minute. It depends on how deep he wants to go. Is he just going to write a report of who he thinks he behaved improperly and violated the law? Or will he use subpoena power and search warrants and grand juries and indict people.



If he's going to do the former, we're going to go back to square one packaged we'll have all this bad stuff about people but nobody will be prosecuted. If he's going to do the latter, that's what prosecutors do. They don't do investigations to deliver reports. They do investigations to deliver indictments. If they don't have enough evidence to indict you, they leave you alone.



BARTIROMO: The reason this is important is because this is fingering John Brennan and Brennan has been running around the last two years saying that President Trump committed treason, and in fact if this email is correct, it is basically saying that it was Brennan who said use the dossier in the intel assessment -- and the intel assessment is the assessment that Russia colluded -- I'm sorry, that Russia meddled in the U.S. elections, nothing to do with Trump, that Russia meddled.



NAPOLITANO: I haven't seen the email, obviously, but if the email is correct, it directly contradicts what Brennan said under oath, which is another thing for the folks in Connecticut to examine, whether or not the former director of the CIA perjured himself in order to make himself look good.



TOM BEVAN, REALCLEARPOLITICS: Judge, you know William Barr, and you've seen his statements on this and he just did an interview with Bill Hemmer talking about it. It seems like he's going to get to the bottom of this. A lot of folks who were at the FBI and in the Justice Department, they are all gone now, they've left.



BARTIROMO: Not all of them.



NAPOLITANO: The names we know are gone.



BARTIROMO: The bad apples are gone.



BEVAN: Do you think William Barr is going to proceed with an investigation with subpoenas with indictments or do you think this will be a report that comes and goes?



NAPOLITANO: I wish I had the confidence that you do, and that Maria does, that this will be a serious federal criminal investigation. But I know the way law enforcement likes to protect its own. I know the way the team in Connecticut, when they investigated the CIA abuse, whitewashed the abuse. And it was there, Dianne Feinstein revealed that on the floor of the Senate. If the New York Times is correct and this is a report and not a criminal investigation --



DAGEN MCDOWELL, FOX BUSINESS: The New York Times is not the only organization reporting that, Kimberly Strassel reported in the Wall Street Journal on Friday that it's a review and right now Durham doesn't have subpoena power.



NAPOLITANO: So if he does not have subpoena power he is not going to get to first base. You can only conduct an investigation of this magnitude where the people you're investigating are present and former law enforcement officials who know how the system works, you're not going to get to first base without subpoena power and without a grand jury. A grand jury indicts.



MCDOWELL: Can't a review turn into an investigation?



NAPOLITANO: Yeah, but why waste time with the review? Just do the right thing.



BARTIROMO: Let's not forget the House Oversight Committee, Intel Committee, and Judiciary Committee have done a lot of this work and has had testimony, and some of it's classified already, that they're basically handing over on a silver platter to Bill Barr and there's more. All of these informants that were going in, Trey Gowdy also talked about releasing transcripts related to the investigation from the FISA courts. We heard from George Papadopoulos on this program, where he told us about the informants that came at him. Those informants' conversations should be transcribed.