Why Merrick Garland Should Fire Special Counsel Durham Now

Attorney General Merrick Garland should fire special counsel John Durham. Durham, a previously well-respected United States Attorney for Connecticut, was assigned in 2019 by Trump’s Attorney General William Barr to review the origins of the so-called Russia probe—Crossfire Hurricane—that became the Mueller special counsel investigation.

As reported by The New York Times, Barr had been “egged on” by the former president to support Trumpworld’s efforts to discredit the Mueller investigation by opening an investigation to investigate the investigators.

At that time, Durham was not made a special counsel—which would have been inappropriate because special counsel are usually drawn from outside the ranks of current Department of Justice employees—but simply given an assignment. That is not an uncommon practice in the DOJ, and similar to what Attorney General Garland did in assigning the Chicago U.S. Attorney to conduct a preliminary investigation of classified documents found at President Biden’s private office and residence in Delaware.

But after Trump lost the election, Barr secretly made Durham a special counsel just before the 2020 election to ensure that he could continue his work. Barr worked closely with Durham throughout his tenure as Attorney General, meeting with him on a weekly basis, as well as dining and drinking Scotch together—hardly the picture of an investigation working independently of the DOJ.

Durham has now been investigating the investigators for nearly four years. That is longer than the life of the entire Russia probe/Mueller investigation which concluded in March 2019 and took only 22 months. Durham has cost American taxpayers at least $6.5 million and that does not even include whatever the price tag was to send Durham on trips to Italy and Britain with AG Barr to gather information prior to becoming special counsel.

For these millions of dollars, Durham has managed only one misdemeanor guilty plea and two slam-dunk acquittals—the second of which followed Durham himself making the closing arguments. Following Durham’s apparently less than persuasive performance, the jury took only nine hours to acquit which at least kept them out longer than Durham’s first loss, which took the jury only six hours.

But it is not Durham’s losses and lack of deliverables that make his tenure untenable. After all, prosecutors should be unafraid to try tough cases and lose them. No, the problem with Durham is that his assignment arose from Barr’s efforts to undermine the Russia probe to aid Trump, and Durham compounded that unethical origin with his own unethical actions.

Actions that included: privately trying to convince the DOJ Inspector General Michael Horowitz to change his conclusion that found no evidence the Russia probe had been politically motivated and then later publicly disagreeing with those findings; circumventing a federal judge’s order to stop seeking private email information by subpoena and instead securing the information through direct contact with the company; and, apparently burying a criminal inquiry into Trump that arose after Italian authorities told Durham and Barr about allegations of Trump’s financial wrongdoing.

Durham’s conduct also sparked resignations from his own staff. Durham’s own top deputy resigned in protest over his drafting of an interim report at Barr’s request to be circulated before election day. And in apparent disagreement with Durham over his decision to indict his first lost case, two prosecutors left his team with one resigning in protest and the other taking a job in the private sector.

Durham’s substantive “work” is unquestionably at an end. The grand jury he was using has expired and he supposedly is working on his final report. That report—originally due to DOJ in May of 2022—is still not completed. Given Durham’s history, his report is likely to be a morass of disinformation meant in part to cover his own failures while still seeking to serve Barr by pushing conspiracy theories that the Russian probe was a baseless effort to discredit Trump.

The American people would not be well served by such a report. Special counsel reports are not opportunities to engage in political free speech under the First Amendment. Rather they are supposed to be evidence-based disclosures rooted in integrity. Durham gives no indication that he is capable of producing such a piece of work.

Durham’s long, futile investigation reminds me of the forgotten Japanese soldiers who hid on Pacific islands, unaware the war was over, still prepared to fight for their lost cause. But those soldiers lacked the ability to impact anyone but themselves. Durham, however, has a platform from which he can do great damage.

If he is allowed to finish his report, AG Garland will be put in the difficult position of deciding whether to make it public. It’s a no-win situation: if Garland makes it public, the report will likely fuel baseless Trumpworld conspiracy theories; but if Garland chooses not to publish the report, Trumpworld will also raise hell about the “hiding” or “suppression” of the “truth.” Garland can avoid all of this by firing Durham now.

The special counsel regulations allow for the Attorney General to remove a special counsel for “misconduct, dereliction of duty… or for other good cause, including violation of Departmental policies.” Garland should exercise this authority and end Durham’s charade of an investigation. Garland would need to specify in writing his reasons for removing Durham which would be the best final report on the John Durham special counsel investigation.