For three years, John Durham has essentially been the Justice Department’s Special Counsel in Charge of Owning the Libs.
His long-running inquiry into the government’s performance during the Trump-Russia investigation has often seemed designed to get shoutouts from Donald Trump and Tucker Carlson and to go viral on right-wing social media.
John Durham has used the criminal justice system to try to score political points. What he has not done is search for the truth.
Durham has developed and launched just two prosecutions in connection with his probe of the Justice Department and FBI’s handling of the Trump-Russia case. Remarkably, neither targeted officials from the Justice Department or the FBI. He still lost both cases.
It is rare for a federal prosecutor to go 0-2, but Durham never really seemed to care about making his cases stick. He targeted people outside the government to stage trials that seemed designed to help prove his pro-Trump bona fides. He chose targets affiliated with what Trump and his supporters have claimed were the evil forces behind the Mueller investigation: the Hillary Clinton campaign and the so-called Steele dossier. Durham prosecuted a lawyer associated with Clinton’s 2016 campaign and a Russian-born informant for Christopher Steele, the retired British intelligence officer who authored the dossier.
In the process, Durham tried to treat a federal courtroom like a cable news studio, where he could verbally attack the Justice Department and the FBI without actually prosecuting any government officials.
During his most recent case, he harshly criticized two FBI officials on the stand — both his own witnesses and ostensibly friendly to the prosecution. Durham called them to testify and then turned on them, to the detriment of his own case.
Durham is a Trump administration holdover, a federal prosecutor appointed in 2019 by former Attorney General William Barr to investigate how the Trump-Russia inquiry originated and was conducted. Barr appointed Durham to satisfy the former president, who has constantly complained that he was the victim of a witch hunt by the so-called deep state. In 2020, Barr gave Durham special counsel status, meaning the Biden administration couldn’t fire him.
Durham’s investigation has now lasted about twice as long as the original Trump-Russia inquiry conducted by special counsel Robert Mueller. Like Trump and many pro-Trump pundits, Durham has focused mainly on the Steele dossier, an inflammatory collection of unsubstantiated tips and leads about possible ties between Trump and Russia that was written in the heat of the 2016 presidential campaign. Trump and Durham have tried to shift public attention to the Steele dossier because it was a mess.
But that is a red herring. The Steele dossier was not behind the FBI’s decision to open the Trump-Russia investigation, nor was it the basis for any allegations included in Mueller’s final report.
While he was collecting information about Trump and Russia, Steele worked with Fusion GPS, a Washington-based private investigation firm, which in turn had been hired by a law firm working with Clinton’s presidential campaign. Steele also had a long-standing relationship with the FBI; years earlier, he had given the bureau information during its criminal investigation of FIFA, the world soccer organization.
Steele shared the information he was collecting on Trump and Russia with both Fusion GPS and the FBI. But Justice Department Inspector General Michael Horowitz concluded in a 2019 report that the FBI officials involved in the decision to open the original Trump-Russia investigation “did not become aware of Steele’s election reporting until weeks later and we therefore determined that Steele’s reports played no role” in the decision to launch the investigation. The inspector general also found no evidence of political bias in the way in which the FBI conducted the Trump-Russia investigation.
In May 2016, an Australian diplomat met in London with George Papadopoulos, a junior foreign policy adviser to the Trump campaign; Papadopoulos told him that the Russians had derogatory information on Clinton, including thousands of emails from Clinton and the Democrats. After the emails were published by WikiLeaks and the press, Australian officials told their U.S. counterparts what Papadopoulos had said to the diplomat. That — along with the prior discovery by U.S. intelligence that Russia was seeking to interfere in the campaign — prompted the FBI to open its Trump-Russia investigation in July 2016.
Nevertheless, by focusing on the flawed dossier, Trump and Durham hoped to muddy the waters and discredit the Justice Department’s probe.
There are several facts that have made it easier for Trump and Durham to conflate the Steele dossier and the Trump-Russia investigation. The FBI used information from Steele in its October 2016 application to a court to obtain a secret warrant to wiretap Carter Page, a Trump adviser. (That was discovered by Horowitz, the Justice Department inspector general, not Durham.)
In addition, FBI Director James Comey privately briefed Trump on the salacious Steele dossier after the election, angering Trump and offering a compelling lure to the U.S. press. BuzzFeed News published the dossier in January 2017. Such intense focus on the dossier aided Trump and his supporters in their efforts to link Steele’s work with the Mueller investigation.
In his first prosecution, Durham charged Michael Sussmann, a lawyer who was working for Clinton’s presidential campaign, with lying to the FBI when he shared leads with the bureau about Trump and Russia in September 2016. The lie, according to Durham, involved Sussman telling the FBI that he had come on his own. Durham argued that by concealing his ties to the Clinton campaign, Sussmann was hiding a political agenda.
But a jury acquitted Sussmann, unanimously, and seemed to agree that Durham had badly overreached by bringing the case in the first place.
Durham’s second prosecution targeted Igor Danchenko, a researcher on Russian issues who was a key source for the Steele dossier, and who had also been an informant for the FBI. Durham also charged Danchenko with lying to the FBI about whether he had talked to a Democratic lobbyist and the former head of the Russian-American Chamber of Commerce. But Durham’s case was undercut when two FBI officials called to testify; both said that Danchenko had been a valuable informant. A jury acquitted Danchenko last week. Again, the jury seemed to agree that Durham had overreached.
Durham’s only other accomplishment in three years came in 2020, when he cut a plea deal with an FBI lawyer, Kevin Clinesmith, who acknowledged that he had altered an email used in an application to surveil Carter Page. But Horowitz, the inspector general, had discovered that problem when he conducted his own investigation, and he made the criminal referral.
With no further prosecutions lined up, Durham’s courtroom antics are likely over. But his final report will doubtless offer Trump loyalists plenty of red meat.
Considering that it has taken Durham three years to lose two cases, however, it is not clear how long he will take to write and publish his final report. He may want to wait until Donald Trump is back in the White House.