Special counsel John Durham’s final report reveals that four years, a $6.5 million spend, and many dining dates with former Attorney General Barr yielded nothing. As a prosecutor who served as a supervisor on an independent counsel investigation, I find Durham’s investigation to be a complete waste of taxpayer dollars.
Recall that Durham was handpicked by Barr to investigate the probe commenced by the FBI in 2016 into ties between the Trump campaign and Russia that formed the basis for the investigation by special counsel Robert Mueller. The Mueller probe yielded indictments of 34 individuals, two companies, and convictions of top Trump campaign officials.
By comparison, Durham’s investigation sent no one to jail but did manage to lose two jury trials, including the final loss, in which Durham personally got into the well of the courtroom to make various arguments to the jury justifying his own investigation.
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Contrary to the expectations set by former President Donald Trump, Durham failed to produce any evidence of what Trump promised to be “the crime of the century”—presumably involving the “deep-state conspiracy” mantra of Trump supporters—and sent no one to jail.
What Durham did do was aid and abet the killing of a lot of trees by producing a 300-plus page report that reads like a plagiarized version of the 2019 report by the Justice Department’s Office of Inspector General, in which Inspector General Michael Horowitz concluded that the FBI properly opened the Russia probe—code-named Crossfire Hurricane—and found no evidence of political bias by the FBI. The OIG’s report contained a meticulous analysis of the Russia probe and offered criticisms of the FBI’s then process for utilizing FISA, the Foreign Intelligence Surveillance Act, warrants that resulted in reforms undertaken by the FBI.
Plagiarists usually try to pass off others’ work as their own by paraphrasing and adding a few original ideas of their own. Durham adds nothing new to the OIG report but does sound like he pulled from Wikipedia concepts like “confirmation bias” to make it look like he was adding new conclusions to what the OIG had already concluded. Of course, confirmation bias is a real psychological term defined roughly as how people are biased toward confirming their existing beliefs. But it shouldn’t take four years and $6.5 million to warn that confirmation bias isn’t among the best practices for criminal investigations or, for that matter, any investigation.
Following the release of the OIG’s 2019 conclusion that the FBI had acted properly in opening the case, Durham immediately made a public announcement that he disagreed with some of its conclusions “as to predication and how the FBI case was opened.” Durham made this statement despite his own admission that his investigation was still ongoing. His statement was greeted with incredulity by former FBI Director James Comey, who said he could make no sense of it and warned Durham: “Don’t be a part of the sliming of the IG and the department as a whole. Do your work.”
Durham at least seemed to have taken the “do your work” part of that admonition to the tune of four more years on the taxpayer dime.
But Durham’s 2019 bravado ended with a whimper, as his report ended up supporting the conclusion in the 2019 OIG report that the FBI had properly opened the investigation, although Durham does quibble over whether it should have been opened as a preliminary investigation rather than a full investigation.
He offers almost nothing in the way of recommended policy change or reform for the FBI besides a half-hearted suggestion at the very end of the report that the FBI should have an official designated to “challenge” politically sensitive investigations. Arguably, that kind of “red team” function is already fulfilled by the layers of scrutiny that accompany any politically sensitive investigation.
Durham also lacks any moral authority to lecture the FBI or anyone else about concerns over political bias when his entire investigation originated with Barr’s efforts to politically weaponize the DOJ. Durham’s investigation was so compromised that his own top aide, a respected career prosecutor, resigned in protest over Barr’s pressuring Durham to issue a report prior to the 2020 presidential election. Presumably, such pressure was intended by Barr to help Trump in the election by undermining the legitimacy of the Russia probe. Another lawyer resigned in protest over Durham’s decision to indict a lawyer with ties to the Clinton campaign.
Further calling into question Durham’s motivations is a notable absence from his report of the allegations made against Trump by Italian officials in the fall of 2019. These allegations involved a tip from an Italian official that linked Trump to financial crimes and were serious enough to merit investigation. But Barr and Durham decided to have Durham do the investigation even though it would not appear to fall within Durham’s investigation mandate. Durham never brought criminal charges and there is no mention of the allegations or what investigation Durham undertook in his final report.
In response to Durham’s report, FBI Director Chris Wray stated that the FBI’s current processes, many based on reforms instituted after the 2019 OIG report, would have prevented many of the “missteps identified in [Durham’s report].”
In my opinion, this was an unnecessarily defensive statement by Wray. The FBI’s opening of the Russia probe has been validated, so it has nothing to apologize for. It’s John Durham who owes an apology to Americans for having wasted their money.
