The Humiliation of John Durham
Hired by Bill Barr to investigate the Trump investigators, the prosecutor had little to show for his work even before his defeat in court yesterday.
John Durham, the special counsel appointed days before the 2020 election by Donald Trumpās attorney general William Barr, just lost the only trial he has brought to date in his long tenure. A Washington jury took only about six hours yesterday to acquit lawyer Michael Sussmann of making a false statement to the FBI.
Durhamās loss was one more egg laid in the fetid henhouse where Barr first enlisted Durham to nest in May 2019, tasking him with proving the truth of a lieāDonald Trumpās favorite disinformation campaign at the time, that the FBIās 2016 Trump-Russia investigation was a āwitch hunt.ā In October 2020, seventeen months after that initial assignment, Barr made Durham a special counselāwhich meant that, no matter the outcome of the 2020 election, Durhamās investigation would continue, since special counsels are virtually unremovable. And so it has been: More than sixteen months into the Biden administration, the DOJ remains saddled with Durham.
The moment he let Barr recruit him, Durham, a former U.S. attorney in Connecticut, risked ruining his once-strong professional reputation. That reputation is now in tatters. Durham first knifed it in December 2019, when he joined Barr in an unprecedented attack on the departmentās own nonpartisan inspector general. The IG had just issued a 478-page report concluding that the Trump-Russia investigation began properly. Barr and Durhamās actions were widely criticized as inappropriate. William Webster, the revered former Republican director of the FBI and CIA, lambasted Barrās conduct, saying it risked āinflicting enduring damageā on the FBI. Durham should have known better than to be used in that attack.
Then, in September 2020, Nora Dannehy, Durhamās respected and loyal aide, resigned from his team. She expressed concern about, in the words of the Hartford Courant, āpressure from Barr . . . to produce results before the election.ā
Durham could have departed then, too, and saved himself further embarrassment. After all, the month before, Durham had obtained his one and only conviction, a guilty plea from then-FBI lawyer Kevin Clinesmith for lying to investigators in June 2017.
Still, a low-level FBI agentās lie, nearly a year after the Trump-Russia investigation began, did nothing to prove that the FBI had launched the investigation illegitimately.
Fast-forward to September 16, 2021, when Durham indicted Sussmann, days before the five-year statute of limitations ran out. As some commentators noted, the indictment reeked of non-prosecutorial goals: It seemed that Durham was trying to justify the public money heād wasted boosting Trumpās false narrative that it was the big, bad Clinton campaign behind the Trump-Russia investigation.
The supposed lie for which Durham indicted Sussmann occurred in mid-September 2016āagain, after the Trump-Russia investigation started on July 31. Sussmann went to a friend in the FBIāthe bureauās general counsel, James Bakerāwith a tip, allegedly saying that he was not offering the information āon behalf of any client.ā
The tip was that a secret communication channel appeared to exist between the Trump Organization and a server of Russiaās Alfa Bank. (Whether such a back channel actually existed is in doubt, though it has never been definitively disproven.) In charging Sussmann under 18 U.S.C. Ā§1001, Durhamās team alleged that Sussmann lied to Bakerānot about the substance of the tip but because Sussmann was working for the Clinton campaign.
He was. But as Sussmannās lawyer argued, āThere is a difference between having a client, and doing something on their behalf.ā
Per Sussmannās defense, he approached the FBI purely at his own behest to help keep Baker and the FBI from being caught unawares when the story imminently appeared in the press.
Itās tough to disprove a private motivation. To do so ābeyond a reasonable doubt,ā youād better have airtight evidence.
Durham didnāt.
In fact, Baker, the prosecutionās own witness, bolstered the defense. He testified that Sussmann helped him identify the reporter working on the Alfa Bank story so that the FBI could try to stop it. (Premature publicity jeopardizes investigations.)
Bakerās testimony created reasonable doubt when combined with testimony from Robby Mook, the former Clinton campaign manager, and from Marc Elias, Sussmannās then-supervisor on the matter at their law firm.
Mook testified that Sussmann going to Baker contradicted the campaignās goal: FBI involvement was undesirable because it could delay a news story that the Clinton campaign would have wanted published. Elias testified that he never authorized Sussmann to contact the FBI.
Whatās more, the prosecution had Sussmannās client-billing sheets. While he charged the Clinton campaign for āwork on confidential projectā the day he spoke to Baker, the billing entry did not mention the FBI. Previously, Sussmann had specifically billed other clients in other matters for āmeeting with FBIā when he did so on their behalf.
Reasonable doubt screamed out.
From the start, Durham should have seen that such gaps in his own evidence made declination the better part of valor. As Sussmannās lawyers said after his acquittal yesterday, Sussmann āshould never have been charged in the first place. This is a case of extraordinary prosecutorial overreach.ā Prosecutors know the danger of bringing weak Ā§1001 indictmentsādeterring individuals from offering tips for fear of being prosecuted for lying if something turns out to be mistaken.
Prosecutors, that is, with no political ax to grind.
Shoddy decisions and the paucity of results characterize Durhamās whole tenure. Yet there are no signs that he intends to close up shop anytime soon. In fact, he has yet another case pending. Last November, Durhamās office indicted Igor Danchenko, an individual who contributed to the Steele Dossier, and particularly the infamous rumor of a Trump āpee tape.ā Danchenkoās trial is scheduled to get underway this fall.
In Danchenkoās case, as in Sussmannās, the indictment is not for any wrongdoing related to the origins of the Trump-Russia investigation. Rather, itās another case of a prosecution on Ā§1001 charges of subsequently lying to investigators.
Maybe Durham will obtain a conviction in Danchenkoās case, and maybe that will give him a face-saving opportunity to pack up and skip town. But everything Durham has done to date has proved not the bang he was brought in to sound but rather a sad, inglorious whimper.
