The ‘Crime of the Century’ Didn’t Happen
Three-and-a-half years and almost 6 million tax dollars have produced nothing.
Salvador Rizzo, Rachel Weiner and Perry Stein reporting for WaPo (“Steele dossier source acquitted, in loss for special counsel Durham“):
A jury on Tuesday found Igor Danchenko — a private researcher who was a primary source for a 2016 dossier of allegations about former president Donald Trump’s ties to Russia — not guilty of lying to the FBI about where he got his information.
The verdict in federal court in Alexandria, Va., is another blow for special counsel John Durham, who has now lost both cases that have gone to trial as part of his nearly 3½-year investigation. Durham, who was asked by Attorney General William P. Barr in 2019 to review the FBI’s investigation of the Trump campaign in 2016, is sure to face renewed pressure to wrap up his work following the verdict.
Trump predicted Durham would uncover “the crime of the century” inside the U.S. law enforcement and intelligence agencies that investigated his campaign’s links to Russia. But so far, no one charged by the special counsel has gone to prison, and only one government employee has pleaded guilty to a criminal offense. In both trials this year, Durham argued that people deceived FBI agents, not that investigators corruptly targeted Trump.
The trial could be Durham’s last. A grand jury that the special counsel had been using in Alexandria is now inactive, people familiar with the matter have told The Washington Post, though the status of a similar panel in D.C. was not immediately clear. A Justice Department spokesman declined to comment when asked whether Durham would continue as special counsel in the wake of the Danchenko acquittal.
In May, a jury in D.C. federal court acquitted cybersecurity lawyer Michael Sussmann, who also was accused by the special counsel of lying to the FBI. A former FBI lawyer, Kevin Clinesmith, was sentenced to one year of probation after admitting in a 2020 plea deal with Durham that he had altered a government email used to justify secret surveillance of a former Trump campaign adviser, Carter Page.
So far, Durham’s review of the FBI investigation has cost taxpayers more than $5.8 million, according to Justice Department records detailing how much the special counsel has spent on personnel, supplies and other expenses between October 2020 and March 2022. That total does not include his work before Barr formally designated him a special counsel near the end of the Trump administration.
After the investigation is complete, Durham will be required to write a report, but deciding how much of it, if any, to release to the public would be up to Attorney General Merrick Garland.
Charlie Savage and Linda Qiu at NYT (“Acquittal of Russia Analyst Deals Final Blow to Trump-Era Prosecutor“) add:
The verdict was a final blow to the politically charged criminal investigation by John H. Durham, the special counsel appointed by Attorney General William P. Barr three years ago to scour the F.B.I.’s inquiry into the Trump campaign’s ties to Russia for any wrongdoing.
Mr. Trump and his supporters had long insisted the Durham inquiry would prove a “deep state” conspiracy against him, but despite pursuing various such claims, Mr. Durham never charged any high-level government officials.
Instead he developed two cases centered on the narrow charge of making false statements in outside efforts to scrutinize purported links between Mr. Trump and Russia. He crammed the indictments with extraneous material and insinuations that he thought Democrats had sought to frame Mr. Trump for collusion with Russia, though he did not charge any such conspiracy.
During closing arguments in both the Sussmann and Danchenko cases, defense lawyers pointed to evidence they said showed that Mr. Durham and his team had lost their way, ignoring signs of serious flaws in their cases because they were so intent on convicting someone.
“I submit to you that if this trial has proven anything, it’s that the special counsel’s investigation was focused on proving crimes at any cost as opposed to investigating whether any occurred,” Mr. Sears said on Monday.
The prosecutorial results Mr. Durham produced in his three and a half years of investigating the Trump-Russia inquiry stood in contrast to what had been the highest-profile act of his career, when he led a special investigation of the C.I.A.’s Bush-era torture of terrorism detainees and destruction of videos of interrogation sessions.
At the time, Mr. Durham had set a high bar for charges and for releasing information related to the investigation. Throughout his 2008-2012 investigation, he found no one he deemed worthy of indictment even though two detainees had died in the C.I.A.’s custody, and he fought a Freedom of Information Act lawsuit to avoid disclosing to the public his findings and witness interview records.
At Intelligencer, Jonathan Chait declares “John Durham Failed Because the ‘Russiagate’ Conspiracy Never Happened.”
John Durham’s latest, and presumably final, humiliation is the capstone of his failed attempt to prove a conspiracy theory that has long been accepted as settled fact in the conservative universe. This theory holds that, in 2016, Barack Obama, Hillary Clinton, or James Comey (or maybe all of them — the mastermind changes in different iterations) devised a plot to smear Donald Trump by ginning up an FBI investigation into his completely innocent and superficial connections to Russia. The purpose of the scheme was to paint Trump as a Russian stooge. Somehow, the plotters forgot to activate its key step: leaking the existence of the FBI probe before the election. In any event, the planned October surprise became a January surprise, hampering Trump’s presidency until Robert Mueller was eventually forced to admit there was no collusion, after which the damage had already been done.
The actual events of this period are clear. Trump began exhibiting a suspicious pattern of behavior in relation to Russia. He lavished its dictator with praise, surrounded himself with people who were sympathetic to and/or paid by Moscow, hinted at his own business deals with Russia but defied precedent by refusing to publish his tax returns, and appointed a man who had managed the presidential run of a Russian puppet in another country as his own campaign manager.
Many people were alarmed by these things and wanted to get to the bottom of them. It is true that the same people also did not want Trump to win the election, but it completely misapprehends their motives to assume that their only goal for investigating his deeply suspicious Russia connections was a desire to smear him. If anything, this rationale is backward: Trump’s ties to Russia made national security officials oppose him. What national security official would be happy about having a president who was in bed with, and creepily submissive to, one of the country’s biggest global enemies?
The Justice Department appointed an inspector general to investigate the FBI’s probe of Trump’s ties to Russia and found that, despite some low-level mistakes, the probe had been adequately predicated. There was no evidence it was directed by Trump’s enemies, undertaken for political reasons, or fundamentally improper in conception.
But Trump and Attorney General Bill Barr refused to accept these findings and instead appointed a special counsel, John Durham, who would be tasked with confirming their conspiracy theory. Durham failed to uncover any conspiracy because it did not exist. He tried to charge Michael Sussmann with lying to the FBI, only for Sussmann to be acquitted. Durham then tried to charge Igor Danchenko with lying to the FBI, only for the jury to acquit him as well. The charges failed because, contrary to Durham’s insinuations, neither man was acting in bad faith. They were both trying, sometimes in a bumbling, Burn After Reading fashion, to pass on to the FBI what they thought they knew about a murky but genuinely unnerving situation.
Some reasons they had to suspect Trump’s relations with Russia turned out to be false. The Steele dossier was a shoddy collection of gossip that many of us considered plausible, if unproven. But that dossier wasn’t the basis for the FBI investigation of Trump, nor was it the basis for the suspicions held by the national security community. Those suspicions existed long before Steele’s gossip became public.
The combination of facts uncovered by the news media and Mueller did not debunk the concerns about Trump’s ties to Russia but instead substantiated them. The most damning single fact Mueller proved was that Moscow had dangled a deal worth several hundred million dollars during the campaign, making Trump vulnerable to both Russian bribery and blackmail (the latter because he was publicly denying any dealings with Russia at the time). But many other surrounding facts supported the pattern: from Trump asking for and then exploiting the Russian hack of Democratic emails to his constant repetition of even the most esoteric pieces of Russian propaganda.
If the national security community’s suspicions about Trump seemed far-fetched, like something out of a spy film, it is because Americans don’t pay close attention to Russia’s efforts to corrupt other governments. In Europe, scandals involving high-level officials bribed or blackmailed by Russian intelligence are routine. Just Tuesday, Germany suspended the head of its cybersecurity agency over alleged links to Russian intelligence.
Another reason Trump has succeeded in making his conspiracy theory sound plausible is that conservative media have devoted astonishing levels of energy to disseminating it. After the Mueller Report, with its tightly circumscribed methods and deliberately obtuse language, Trump’s critics mostly abandoned the issue, while his supporters were just getting started. The right-wing media have been filled with screeds about Russiagate and hopeful predictions that Durham would blow the whole thing open. It is as if Democrats continued to talk about the Starr report constantly in the early aughts. Barr, who frequently teased the public with predictions of dark crimes to be uncovered, fanned the flames of expectation for Durham.
The headline got my attention but it’s because Chait and I think “Russiagate” are completely different things. I always thought of it as the set of charges that led to Mueller’s investigation and which Chait succinctly demonstrates in the above excerpt to have indeed happened. Somehow, it has now become Trump’s charge that Clinton et al ginned the whole thing up.
At any rate, Durham has confirmed my longstanding distrust of the special prosecutor concept. As I wrote way back in 2009, when the Obama administration appointed Durham to investigate alleged abuses of the CIA under President Bush,
[T]hese investigations take on a life of their own. Even prosecutors whose independence and judgment were previously thought beyond reproach seem to succumb to the enormous pressure to charge people with something. Otherwise, the tens of millions of taxpayer dollars they spend on their investigation looks like a waste and those who expected the investigation to yield criminal charges will never believe there wasn’t a cover-up.
Oddly, as the NYT report cited above notes, Durham bent over backward to be scrupulous. As a WaPo report I cited in that 2009 post noted, that was his reputation:
Though a registered Republican, Durham generally is regarded as apolitical, and attorneys general from both parties — including Janet Reno, Michael B. Mukasey and Holder — have tapped him for their most difficult assignments. Hugh Keefe, a longtime Connecticut defense lawyer who has often squared off against Durham in court, called the prosecutor “the go-to guy for Justice whenever they get a hot case.”
Mark Califano, a former prosecutor in Connecticut, described Durham’s approach as “clinical.” He said Durham “very rarely” has walked away from a case without bringing criminal charges. “He likes to make cases when there is evidence there,” said Califano, the son of former Heath, Education and Welfare Secretary Joseph A. Califano Jr. “You’ve got to balance whether that kind of information exists. . . . You can’t move forward if you don’t have the evidence.”
“The thing about the U.S. attorney’s office in Connecticut is that they take the standard of proof beyond a reasonable doubt seriously in deciding whether to indict,” Keefe said. “If Durham can’t make a case beyond a reasonable doubt, he won’t indict.”
Rather clearly, he didn’t follow that practice here. Maybe he was a partisan hack after all. Or maybe, at 72, he’s lost his way. Regardless, given a remit to find criminality and essentially unlimited time and resources, these investigations can get out of control.
There was simply zero basis for bringing charges against Igor Danchenko. He simply didn’t do anything remotely criminal. There was at least evidence Michael Sussmann lied to the FBI but the nature of it was ultimately immaterial and didn’t warrant prosecution.
That there was no basis for Trump’s claims that the FBI was out to gin up evidence against him pretty much goes without saying. That we managed to waste so many resources and put so many folks through the ringer over three-plus years is a travesty.