John Durham is done. Finally.
It took him four years – nearly twice the time spent by the object of his fixation, Robert Mueller – and, in the final tally, Durham used those 1,400-plus days to produce one guilty plea, zero prison sentences, and a 306-page doorstop of a final report. But before we move on – and we really do need to move on – let’s take a moment for a post-mortem.
Durham’s work as Special Counsel breaks down into two parts: the “findings” and the actual criminal prosecutions.
On the former, we knew from the start what Durham would find. Mueller wrapped up his work back in the spring of 2019. He concluded that Russia did try to interfere in the 2016 election to help Trump win, that there were “numerous links between the Russian government and the Trump campaign,” and that the Trump campaign knew about Russian election interference and “expected it would benefit electorally.” Mueller also concluded that the evidence did not establish a chargeable federal conspiracy case.
Trump, aided by the infamous four-page distortion of the Mueller report issued by his lapdog Attorney General Bill Barr, promptly declared victory. Throughout April and May 2019, Trump tweeted “No Collusion, No Obstruction” – misconstruing Mueller’s actual findings on both counts – and he publicly clamored for DOJ to “INVESTIGATE THE INVESTIGATORS” (allcaps Trump’s). Barr jerked to attention, and, within weeks, had designated Durham to do just that. (Months later, in October 2019, Barr formally appointed Durham as special counsel, though Barr bizarrely kept that designation hidden from the public until the end of 2020.) Just in case Durham had any question about his mission, Barr testified in the Senate virtually contemporaneously with Durham’s initial appointment that “I think spying did occur.” Durham had his mandate from the start.
Durham confirmed that he understood his ultimate mission – to smear the Mueller investigation – during a revealing moment in December 2019 when DOJ’s Inspector General issued a 476-page report that concluded that the Russia investigation was properly predicated. The IG sharply and rightly criticized FBI agents who had made a litany of mistakes and omissions during the investigation, nearly all of which worked to Trump’s disadvantage. (Durham’s final report re-hashes many of these incidents.) But the IG concluded that the FBI was justified in opening the investigation, given the overwhelming evidence that Russia had interfered in the 2016 election on Trump’s behalf. Although Durham was only months into what would become his four-year investigation, he nonetheless broke with longstanding DOJ protocol and commented publicly to dispute the IG’s findings: “We do not agree with some of the report’s conclusions as to predication and how the FBI case was opened.” (In August 2020, the Republican-led Senate Intelligence Committee concluded, as the IG had, that there was ample basis for the Russia investigation.)
Durham’s ultimate findings come as no surprise. His final report is a perfect Rorschach test. There’s enough in there for partisans on either side to claim victory, and many have. Trump has declared in characteristically hyperbolic manner that Durham has vindicated him; “hoax” and “totally illegal” and all the rest of the predictable turns of phrase. His minions have echoed the sentiment. Trump will continue to offer this twisted take on Durham’s findings throughout the 2024 campaign. Bet on it.
Others have claimed that Durham’s findings are a big nothing, but that’s not quite right, either. Durham concluded that DOJ and the FBI did not live up to their highest institutional standards, and he’s got a point. Durham includes in his report a series of texts and statements (many of which were already in the public domain) showing that certain members of the investigative team were wildly biased against Trump, openly discussing their personal and political hatred for him. At one point, infamously, FBI agent Peter Strzok responded to an August 2016 text from an FBI lawyer fretting about whether Trump might become president: “No. No he’s not. We’ll stop it.” Another FBI lawyer – the only person who ended up being convicted of anything in this case, for falsifying an email – told colleagues, “vive le resistance.”
Durham also argues that the FBI relied on “raw, uncorroborated” information to obtain surveillance warrants. That’s partly true, as the unconfirmed “Steele Dossier” played a part – a small part, but a part – in some of the FBI’s warrant applications. Durham ultimately opines that the investigation never should have proceeded past some artificial mile marker that he believes differentiates a “preliminary’ investigation from a full one. That’s a matter of prosecutorial opinion, and Durham’s conclusion stands in tension with the contrary findings of the DOJ IG and the Senate Intelligence Committee that Mueller’s investigation was amply founded.
So there’s fodder both ways in Durham’s report. But when we turn to his work on the criminal side, the conclusion is unambiguous: Durham was an unmitigated prosecutorial flop.
I can barely even wrap my head around it. Four years. Four years. And here, ladies and gentleman, are the end results: two indictments that went to trial and resulted in not-guilty verdicts, and one guilty plea that yielded a sentence of probation. That’s it. Done. Fin. Nada.
Let’s remember, Trump had predicted that Durham would uncover the “Crime of the Century.” (Reality notwithstanding, Trump sticks to his claim, even now.) It certainly wouldn’t have been difficult to discount Trump’s wild proclamations from the start; few rational observers genuinely expected Durham to find mass criminality, or anything close. But even early skeptics of Durham’s investigation could have anticipated something of substance, something more than this.
If there’s a silver lining here, it’s in the comedic value of the frantic backpedaling by our esteemed former AG, Barr. (As you probably know, he was the subject of my 2021 book, Hatchet Man: How Bill Barr Broke the Prosecutor’s Code and Corrupted the Justice Department. I’m not a fan.) Barr – who used to claim he didn’t much care about his public perception but now is omnipresent on cable news – told Fox News this week of the Durham investigation, “it was a success in that its purpose from the very beginning was to get to the truth. It was not launched as a criminal investigation.”
Ohhhhh, I see. It was not supposed to be a criminal investigation. I mean, sure: Barr, as United States attorney general, appointed Durham, a longtime federal prosecutor, as special counsel, working within the Justice Department. Barr gave Durham a team of federal prosecutors and FBI agents, who tend to spend their time working on criminal investigations. Durham did in fact bring three criminal cases, two of which flamed out entirely while the third barely landed. And, in the official document by which Barr named Durham special counsel, Barr specifies that Durham “is authorized to prosecute federal crimes arising from his investigation of these matters.” But, no. This wasn’t supposed to be a criminal investigation. So those piddly, laughable results – those two acquittals and one probation sentence – they’re actually pretty awesome, when you think about it that way.
(Here’s another gem from that document. Barr wrote that he “expected Mr. Durham to complete his work by the summer of 2020,” but then Covid got in the way. Getting a little late to blame Covid now, isn’t it?)
We are done with Durham. In the final analysis, his report does provide some valid and important critiques of the work done by the Justice Department and the FBI, though much of his information was already publicly known. The substance and merits of his conclusion will remain largely a product of political perspective.
But this much is beyond dispute: Durham took way too long, ate up far too much of our political attention, and ultimately gave us next to nothing of substance.
*Note: portions of this article are adapted from Elie’s aforementioned 2021 book, Hatchet Man: How Bill Barr Broke the Prosecutor’s Code and Corrupted the Justice Department.
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