Driven by honor and duty, he was never someone today’s bawdy Beltway was apt to comprehend.
Driven by honor and duty, he was never someone today’s bawdy Beltway was apt to comprehend.
J ohn Durham is an American patriot, and he is old school. Alas, his selfless dedication to the bygone assumptions that gave America stability, that gave us the rule of law, renders him an anachronism: an institutionalist in defense of institutions that are no longer defensible — institutions that were transformed around him in the decades while he put his head down, faithfully enforcing the law, oblivious to which party was in charge.
Today, all that matters is which party is in charge. That is the coda for the House Judiciary Committee hearing this week on the Russiagate report he compiled over four years.
Ironically, the hearing’s focus on Durham was nearly equaled by its spotlight on Representative Adam Schiff, the California Democrat whose name has become synonymous with “collusion hoax.” Chairman Jim Jordan (R., Ohio) even rushed through the members’ five-minute questioning rounds — which Schiff dominated on the Democrat side — so they could get to the House floor and narrowly ram through a resolution censuring Schiff. It’s ironic: Wearing the prospect of a partisan, Trump-choreographed censure like a badge of honor, Schiff attacked Durham as a hack carrying water for Trump to conceal his collusion with Russia; for their part, Trump’s allies attacked Durham as an establishment hack carrying water for the FBI to conceal its collusion with Democrats.
That neither side has any use for Durham does not mean he got everything right — he didn’t. But it is a point in his favor. Much as they despise one another, Trump’s foes and friends have much in common.
Schiff put his collusion eggs in the Mueller basket, Mueller failed to deliver, and now Schiff is left stubbornly rationalizing that he was right all along. Trump’s allies maintained — against evidence and reason — that Durham would be their avenging angel; he instead delivered what anyone who has closely followed Russiagate and Durham’s career would have predicted: a workmanlike report that found much to condemn but nothing to prosecute. Like Schiff, they’re now left grousing that the big corruption conspiracy really did happen, it’s just that the prosecutor missed it.
No, it’s not a mirror image. Collusion was a smear. Mueller couldn’t get Trump because it didn’t happen. Durham couldn’t get the culpable government officials and Clinton-campaign operatives because the former have broad investigative discretion, which usually shields overzealous investigators from prosecution, and the latter have broad political-expression rights, which immunize even defamatory campaign hyperbole from allegations of criminal fraud.
The remorseless fact that there was no Trump–Putin collusion was known for months when the Trump-appointed deputy attorney general, Rod Rosenstein, appointed Mueller as special counsel right after Trump fired FBI Director James Comey in May 2017. With the media wind at their Trump-deranged backs, though, Schiff and other Democrats — including the Democrats recruited by the senescent Mueller to do his scut work — schemed to hoodwink the country into assuming Trump’s guilt.
As Democrats labored to manufacture an air of suspicion around the former president, Mueller brought a flurry of indictments against Trump associates and Russians. They figured no one would notice that the charges against the Trump associates — mostly process crimes created by the investigation — had nothing to do with Russia, and that the charges against the Russians were basically press releases. Mueller’s prosecutors assumed that these breathless Russia hacked the election! indictments would never have to be proved in court (because the Russians would never be extradited). They were caught flat-footed when the Russian companies they’d indicted showed up, demanding their American due-process rights — i.e., discovery of Mueller’s evidence and a fair trial. Mueller could never have convicted them, and an acquittal would have blown up the carefully crafted narrative that Russia’s asinine hijinks had not only material but determinative impact on the election. So the special counsel quietly dropped the case — quietly in the sense that the media-Democratic complex had no interest in covering this humiliation.
The collaborative effort of Democrats and the FBI to nullify Trump’s victory was thwarted by the lack of Trump–Russia collusion evidence and the failure to apprehend that, once those collusion claims proved empty, the country would not care about the ensuing attempt to portray Trump’s smoldering rage over the continuing probe as “obstruction of justice” — which even Mueller couldn’t quite bring himself to allege.
By contrast, the fundamental flaw in the Durham investigation was that it was not, in any traditional sense, a prosecutor’s investigation aimed at making a criminal case. It was an exercise in historical accountability: Why did the FBI launch an investigation of a presidential campaign, despite scant basis for suspicion of a Trump–Putin conspiracy, when common sense — to say nothing of our norm against government interference in electoral politics — dictates that top officials should have demanded a compelling basis for suspicion before plowing ahead?
From the start, this put the Durham probe in tension with Trump and his allies — the tension that spilled over at this week’s hearing. The Trump camp wanted payback and saw the investigation as the way to nail the former president’s tormentors just as they had tried to nail him. That was never Durham’s conception of his task. Nor, for that matter, was it the conception of Bill Barr, the Trump attorney general who appointed Durham. As Charles C. W. Cooke and I have discussed a couple of times on his podcast (here and here) and as I’ve written about (e.g., here and here), there are many on the right and in the community of former law-enforcement officials who believe the FBI is beyond repair and the Justice Department is incorrigibly politicized — by its Democratic political appointees and its progressive career staff. To the contrary, Barr and Durham are very much in the camp of fixing these institutions, even if that means significant surgery, not eradicating them.
Barr approached the problem from the perspective of one who sees the intermingling of law enforcement and politics as poisonous for both. Recall that, for all the Democratic smears and Trump tantrums directed his way, Barr declined to prosecute both the FBI’s former director, James Comey, for mishandling classified information (which Comey technically did do, though the non-prosecution decision was sound) and deputy director Andrew McCabe, on a false-statements case (a much closer call, but one as to which Trump had undermined the prosecution). The AG’s essential point was that, while politically fraught prosecutions cannot always be avoided, there should be a presumption against them, superable only if there is convincing evidence of “meat and potatoes” crimes.
That was the antithesis of a prescription for bringing an aggressive conspiracy case against Trump’s Russiagate antagonists on some creative theory of treason, or at least public corruption. For a prosecutor, such a case would be unwinnable. The defendant officials would be poised to contend that they were acting within the wide berth of discretion that the law gives them, particularly when they believe, as many of them did and do, that Trump is a menace and that his connections to Russia — which are not imaginary, even if they are not uniquely extensive or nefarious — were cause for concern.
The failing of our system is that it has lost the capacity to strip such people of power they are unfit to exercise because their firmly held convictions (what Comey portentously describes as his “higher loyalty”) render them incapable of dispassionately exercising the duties entrusted to them. The criminal law, our go-to substitute, doesn’t work: (a) professional law-enforcement agents should be proactive without crossing the line into overzealousness, but even negligent overzealousness is not criminal intent, and (b) if we were to tweak the law in order to criminalize overzealousness, we would end up paralyzing good police and prosecutors and thus eroding the rule of law that our society must have to thrive.
If you were looking for someone to torch the pillars of law enforcement and national security, maybe the only guy who’d fit the bill even less than Barr is Durham. He has spent 40 years upholding those pillars, scrupulously.
They don’t make ’em like Durham anymore. When Judiciary Committee Democrat Steve Cohen (Tenn.) suggested that Durham had marred his formerly solid reputation by investigating the Russiagate investigators, purportedly to help Trump politically, the 73-year-old now-retired prosecutor clapped back, “My concern about my reputation is with the people who I respect, my family, and my Lord, and I’m perfectly comfortable with my reputation with them, sir.”
Spoiler alert: Durham is driven by honor and duty. He is not someone today’s bawdy Beltway is apt to comprehend.
Confusion arose early in the hearing over which attorneys general of which party had awarded Durham which of the Justice Department’s two highest honors in which year. Innately, the aggrandizement made Durham uncomfortable. It was odd because, on Capitol Hill, officials who haven’t achieved a fraction of what Durham has would have such plaudits tattooed on their foreheads. Durham needed reminding that he’d last been honored in 2012, by Obama attorney general Eric Holder.
That was over the CIA interrogations probe into the harsh tactics our spies employed post-9/11 on what were thought to be high-level al-Qaeda detainees. When the scandal was at its worst, Durham had been brought in by Bush-43 attorney general Michael Mukasey. Durham had not believed criminal prosecution was warranted. That was not good enough for Democrats, Obama having run on the proposition that the Republican administration had green-lighted “torture.” Holder himself had proclaimed that a “reckoning” was in order. He expanded Durham’s remit and doubled down on the probe, focused in particular on the deaths of two detainees.
After Durham’s yearslong, meticulous investigation, Holder announced in 2012 that “the fully developed factual record” dictated that the Justice Department “decline prosecution because the admissible evidence would not be sufficient to obtain and sustain a conviction beyond a reasonable doubt.” Not that what the CIA did was justified; just that not all government abuses of power are grist for criminal prosecution, at least if one applies reason rather than passion. It is not that the Obama administration did not want to make a case, it’s that Durham established that the case wasn’t there. To have alleged otherwise would have degraded the CIA, an institution vital to American national security.
That is why Durham was honored. It is why, seven years later, he was drafted to scrutinize the origins of Russiagate. His job was to find out what happened and why. Not necessarily to prosecute misconduct, though his mandate allowed for that. The point was that U.S. government interference in our democratic process is, in many ways, more dangerous than foreign interference — it being much harder to determine whether American officials are well-intentioned or malicious. It was thus worth a full-blown investigation by a seasoned, nonpartisan prosecutor from outside Washington, especially given that abuses had been committed by the Justice Department itself — with the main trail leading to FBI headquarters.
As in his CIA investigation, Durham’s deep dive into Russiagate uncovered a great deal that is wrong and needs addressing, but little or nothing that could be successfully prosecuted in court. And just as the political Left was outraged by Durham’s CIA conclusions (though its rebukes were muted with a Democratic administration in power), Trump supporters are outraged that Durham could find so much corruption and so little to prosecute — and could choose to prosecute comparatively trivial cases, resulting in acquittals that he had to know were likely and that would be used to discredit his solid fact-finding.
Having run more than my fair share of imperfect investigations, I can assure you that there are no perfect ones.
I don’t agree with everything Durham did. He was right to resist an edgy fraud theory of conspiracy to undermine Trump’s administration. But there is significant evidence that the FBI defrauded the Foreign Intelligence Surveillance Court. It was, moreover, jarring to hear Durham testify that he hadn’t focused on whether, in March 2017, FBI headquarters had sought to mislead Congress into believing there might be a conspiracy between the Kremlin and the sitting U.S. president. At the time, the bureau based its talking points on Steele-dossier information that was not just uncorroborated but that the FBI itself had discredited two months earlier when it finally interviewed Christopher Steele’s source Igor Danchenko — three months after the bureau first started swearing to the bogus dossier allegations in court.
I am still at a loss to understand why Durham elected to prosecute comparative bit players rather than simply writing a report spelling out his major findings and evidence. If he could not prosecute the most culpable actors in the Clinton campaign’s collusion with the government, why gamble his credibility on uphill cases against the likes of Danchenko and Clinton lawyer Michael Sussmann? It is not just that Durham had sparse chance of convincing Washington, D.C., juries to convict these men in cases where Durham’s modest false-statements charges invited skeptical judges to exclude the prosecution’s evidence of an elaborate but uncharged conspiracy. It is that the premise of the prosecutions was that the FBI had been duped by the Clinton campaign, while the essence of Durham’s evidence was that the FBI was a willing collaborator.
Durham was surely right to prosecute FBI lawyer Kevin Clinesmith for lying to an FBI agent and altering a document in furtherance of the presentation of a false affidavit to the FISC. But the special counsel agreed to settle the case by guilty plea even though Clinesmith absurdly maintained that he hadn’t actually meant to deceive anyone. Maddeningly, a sympathetic judge relied on this bogus claim in meting out a slap-on-the-wrist sentence — probation. Predictably, this outcome diminished, in the public mind, the seriousness of the offense and, hence, the importance of Durham’s work.
Finally, count me among those underwhelmed by Durham’s explanation of why he failed to compel the testimony of the most culpable FBI officials. When Democrats complained that the Durham probe was unnecessary given the damning findings already made by DOJ inspector general Michael Horowitz, the pushback was that, as a full-fledged prosecutor, Durham had authorities to compel information — grand-jury subpoenas, search warrants, and other investigative techniques — that were unavailable to Horowitz. So why not use them?
By comparison, although Mueller was never going to charge a Trump–Russia conspiracy, he still aggressively compelled testimony from Trump’s associates, from his White House counsel, and even from Trump himself (in the form of written responses to questions). And while Biden special counsel Jack Smith may not make a criminal case against Trump in connection with the Capitol riot and the scheme to steal the 2020 election, he has nevertheless compelled every relevant witness — including the former vice president and White House lawyers — to testify.
Durham is right: It is shameful that former FBI officials, who have much to say in their books and media appearances, declined to cooperate voluntarily. I believe, however, that the prosecutor should have forced them to appear before the grand jury. Since he was compiling a comprehensive report, completeness of the record called for testimony from the most pertinent witnesses. If former director Comey and the others had said “I can’t recall” time after time, as Durham plausibly intuits that they were likely to do, that would not have been a waste of investigative time; it would have been an important addition to Durham’s final report.
All that said, Durham spent four years compiling and perusing the evidence. It was exhausting work, made all the harder by the pandemic and the political climate. It doesn’t make much sense to criticize him for both bringing cases he was highly unlikely to win and declining to bring more ambitious cases. Emblematic of his stellar career, he delivered a compelling, comprehensive report. Meticulously, he established that the FBI willfully collaborated with Democrats to slander Trump as a clandestine agent of Russia based on the flimsiest of premises, and that the bureau persisted in this fiasco — including in sworn applications to a United States court — long after the slander was proven to be a partisan hit job.
The problem we’re left with is not of Durham’s making, though it is one his forthright testimony did not realistically address. The Russiagate wrongdoers have not been held accountable. Ever obsessed over its reputation, the FBI quietly removed most of them. Without stigma, they’ve failed upward to lucrative new gigs. It wasn’t Durham’s idea to make criminal investigation a proxy for political accountability, but he dutifully did his part and came to the inevitable conclusion that the wrongdoers can’t be prosecuted either.
Then . . . what? The FBI, an institution on which we’ve relied as a rule-of-law bastion, corruptly interferes in election after election since 2016. We’re told, nevertheless, that no one can be prosecuted and no one should be ostracized. Nothing should be done except to sustain the institution as is, at all costs. To defund the FBI, Durham opined, would imperil national security.
John Durham is a good man who has dedicated his life to protecting this country. If the institution he wants to preserve were the institution in his mind’s eye — one that, like him, is about selfless service — it would indeed be worth fighting for. But to know that today’s FBI is a far cry from being that institution, one need only read the Durham report.