The special counsel’s looming report is the only chance the American people will ever get to hold the Clinton campaign and the FBI accountable for Russiagate.
The special counsel’s looming report is the only chance the American people will ever get to hold the Clinton campaign and the FBI accountable for Russiagate.
S pecial counsel John Durham performed a valuable public service by bringing to cold, stark light the FBI’s Russiagate abuses and the imperative that the bureau — its reputation in tatters — be subjected to intense congressional scrutiny and reform. Nevertheless, the prosecutions by which he has thus far made his record could be its ultimate undoing.
In a four-year investigation, Durham has established collaboration — mostly of the nod-and-wink variety — between Hillary Clinton’s 2016 campaign and the government’s law-enforcement-and-intelligence apparatus, in an effort to baselessly frame Donald Trump as a clandestine agent of the Kremlin. What grates is that, far from being held accountable, the significant participants are still celebrated.
FBI director Chris Wray would dispute this. When cornered into addressing the matter, Wray insists that none of the major players — including former director Jim Comey, whom he himself succeeded — is any longer in a position to make mischief.
Even on its face, this is untrue. In Durham’s prosecution of Igor Danchenko, which just ended in acquittal, we learned that even though Wray referred supervisory intelligence analyst Brian Auten for internal discipline over his role in the misconduct connected to the 2016 presidential election, and even though a significant suspension was recommended (which Auten is appealing), Auten was nevertheless tapped by another rogue FBI higher-up, Timothy Thibault, to concoct an intelligence assessment in connection with the 2020 presidential election. Based on that assessment, Auten and Thibault helped Democrats dismiss as “Russian disinformation” credible, derogatory information about Biden-family monetization of the now-president’s political influence — despite the dearth of evidence that it was disinformation at all, much less disinformation sourced to Russia.
That aside, Wray has undercut the cause of accountability every step of the way. When Republicans held the House and tried to investigate Russiagate in 2017–18, Wray led the FBI as it joined the Justice Department (under Deputy Attorney General Rod Rosenstein) in stonewalling, on the now eye-roll-inducing grounds that public disclosure of highly classified FISA surveillance-warrant applications and other related intelligence would compromise intelligence-gathering methods and sources. Later, when the embarrassing disclosures finally trickled out, we learned that the FBI had not only botched Russiagate but had systematically violated its own FISA protocols for years, Wray assured everyone that everything was fine. The reason he feels the need to remind us that the Russiagate culprits are no longer in their jobs is that most were shunted aside discreetly, lest public attention be called to the debacle.
Still, there is something even more galling, not just to Trump fans but to many other Americans, including former FBI agents and law-enforcement officials, who are chagrined by what’s become of the bureau: The culprits who were fired, suspended (e.g., Auten), demoted, or otherwise encouraged to “spend more time with their families” (e.g., Thibault) seem always to fail upward, landing book deals, cable-TV gigs, or other lucrative new jobs, and so on.
In its way, it’s reminiscent of the progressive hold on the culture illustrated in the fallout from the Sixties. For example, far from being held accountable, Weatherman terrorists went on to celebrity — prestigious academic perches, influential posts in affluent progressive funding networks, and Democratic Party eminence. It didn’t matter how atrocious their actions were; what mattered was that they were audacious, bien pensant lefties who picked the right enemies. Today, the right enemy is Donald Trump, so . . . Russiagate schmussiagate. All is not just forgiven, it is exalted. The bureau’s politicization, malfeasance, and incompetence undermined Durham’s prosecutions of Russiagate rogues, just as they undermined prosecutions of the Weathermen. (“Guilty as sin, free as a bird — what a country, America,” as Bill Ayers put it.) The only difference between then and now is that the FBI, having been on the “wrong” side in the Weatherman fight, joined the “right” side against Trump.
To be sure, Durham’s apparent failures — not just the acquittals but the lack of prosecutions of Russiagate’s prime movers — are simply the nature of the beast. As I explained in my 2019 book about the Trump–Russia investigation, Ball of Collusion: The Plot to Rig an Election and Destroy a Presidency, government abuses of power do not readily lend themselves to redress by criminal prosecution. They cannot — at least, not if we want to have national security and the rule of law.
You don’t need me to tell you that. Just have a look at surging crime in every American city that has consigned itself to the tender mercies of the progressive prosecutors and defund-the-police activists typical of one-party Democratic governance. If we convey to cops the message that they could be vilified, disciplined, and even prosecuted for the judgment calls they make in enforcing the law, then we get passive policing and rampant crime.
Widen the lens and we find no difference when it comes to national security. If fear of abuse induces us to clamp down on the government’s counterintelligence powers, our spy agencies will be hamstrung in probing the ambitions of malign regimes and foreign terrorists — in gathering the intelligence that is vital to protecting the homeland and American interests around the world.
We have learned this the hard way. In the 1990s, amid federal law enforcement’s response to the jihadist onslaught that began with the 1993 World Trade Center bombing, concern grew over the possibility that, in the absence of hard evidence that a crime had been committed, the FBI and Justice Department might pretextually exploit counterintelligence authorities, such as spying under the Foreign Intelligence Surveillance Act (FISA), to monitor criminal suspects. So the Clinton Justice Department erected the infamous “wall” — a set of guidelines that effectively prevented the FBI’s counterintelligence agents from sharing information with the bureau’s criminal investigators as well as federal prosecutors.
In other words, to clamp down on the FBI’s propensity to abuse national-security power (see, e.g., COINTELPRO), we risked national-security catastrophe. The intentional blinders had the predictable, tragic result: The government failed to detect the machinations of terrorists as they plotted what became the 9/11 atrocities, in which nearly 3,000 Americans were killed.
The “wall” addressed a hypothetical abuse. Today, that abuse is no longer hypothetical. In 2016, the FBI did not have credible evidence that the Republicans’ then-candidate for the presidency, Donald Trump, was in a corrupt conspiracy with Russia, much less that he had anything to do with the hacking of Democratic National Committee emails. (Indeed, even assuming that the Kremlin orchestrated the hacking, the Justice Department would not be able to prove its culpability in a criminal trial.) So the FBI did what I, as a prosecutor on terrorism cases back in the Nineties, used to argue it would never do in a million years: It conducted a sham FISA investigation, deceiving the court, in order to sit on Trump in hopes of coming up with some crime over which he could be convicted, or at least driven from office.
Where did the FBI get the “evidence” to support the sham? Mainly from the Clinton campaign. Bureau officials knew the Trump dirt was partisan opposition-research, knew it was bogus and unverifiable, and knew it would be explosive if anyone ever found out how aware of all this the FBI had been. So they used FISA to pursue their aims, guaranteeing that everything would be classified and Congress could be stonewalled — at least until the bureau caught Trump red-handed, as its leadership was oh so sure it would, at which point no one would care how it had gotten the goods on him. Meantime, the FBI let DNC lawyer Michael Sussmann pretend he was just a concerned former government official and patriot — rather than a well-paid Clinton-campaign emissary — when he came peddling skewed anti-Trump data. And FBI officials pretended that their old pal Chris Steele was not a hack being paid by other partisan hacks to smear Trump on behalf of Clinton, but merely a former British intelligence officer and respected colleague in the defense of the West whose every utterance about Russia had to be taken with utmost seriousness (notwithstanding that Putin cronies were a significant source of his income).
These, though, were not the bureau’s only sources.
A gaping black hole in the public understanding of Russiagate, even after four years of Durham’s probe into the investigation’s origins, involves the leads the bureau got from overseas sources — from the CIA, then under the direction of the hyper-partisan John Brennan, and the foreign intelligence services with which Brennan was consulting. As Brennan told the House Intelligence Committee in May 2017 testimony:
I was aware of intelligence and information about contacts between Russian officials and U.S. persons that raised concerns in my mind about whether or not those individuals were cooperating with the Russians, either in a witting or unwitting fashion, and it served as the basis for the FBI investigation to determine whether such collusion—cooperation occurred. [Emphasis added.]
What exactly was this “intelligence and information” that “served as the basis for the FBI investigation” into supposed Trump–Russia “collusion”? We don’t know. We’re relying on Durham to tell us in his final report.
The report has always been John Durham’s primary job. There was never a realistic chance that he could make a comprehensive Russiagate record in a major prosecution. Hillary Clinton and her campaign aides had First Amendment leeway to use hyperbolic rhetoric against a partisan adversary — Clinton and Trump may be unseemly figures, but we don’t want law-enforcement agencies policing our politics. Of necessity, the FBI has a very low threshold of suspicion for opening a national-security investigation, and its discretion regarding the exploitation of legal authorities (such as FISA) in conducting such investigations is expansive. If anything, the CIA has even more discretion and the imperative of secrecy makes its operations practically uncheckable — and certainly not checkable by court prosecutions. When candidates and public officials must be given broad discretion, there is unavoidably lots of opportunity for abuse that cannot be addressed by the criminal law.
The only chance we have ever had to find out what really happened to spawn Russiagate was for Durham, with compulsory access to all the relevant players and intelligence, to write a comprehensive report. He took a calculated risk by bringing comparatively trivial cases against minor players, before what were sure to be hostile jury pools. He has gotten the predictable results: acquittals across the board. And now, as night follows day, Democrats and other Trump antagonists are mobilizing to preempt Durham’s coming report — urging Attorney General Merrick Garland to “pause” its public release, on the argument that the acquittals illustrate that Durham, heretofore of stellar bipartisan reputation, is an unreliable Trump lackey.
You want to say Durham has himself to blame for this predicament because he brought indictments that shouldn’t have been brought? I won’t argue the point, except to say that (a) the people he charged (including FBI lawyer Kevin Clinesmith, who pled guilty to falsifying key information in connection with the bureau’s preparation of a sworn FISA application) do appear to have provided false information; and (b) it was in the public interest to expose the evidence of government misconduct that emerged in these proceedings.
Regardless, though, we still need Durham’s report. It is the only real chance we’ll ever have to hold the Clinton campaign and its government collaborators accountable for Russiagate.