Where John Durham’s Investigation Is Heading By Andrew C. McCarthy
Reading the tea leaves, it appears the special counsel’s end game is something other than a sweeping indictment.
L ast week’s indictment of Igor Danchenko has the commentariat buzzing. If special counsel John Durham has cracked the core of the Russiagate case, if he has established that the Steele dossier on which the FBI substantially based its spy warrants was fraudulent, does that mean he is nearing a sweeping conspiracy indictment? Will there be criminal charges that target the real 2016 collusion — not between the Trump campaign and Russia, but between the Clinton campaign and U.S. officials who abused government investigative powers for political purposes?
Almost certainly not.
All signs are that Durham will end his investigation with a narrative report. It has looked that way for a long time. There are reasons why then-attorney general Bill Barr appointed then-Connecticut U.S. attorney Durham as a special counsel shortly before the Trump administration ended.
Unlike ordinary federal prosecutors, who either file charges or close investigations without comment, special counsels are required by regulation to write a report for the attorney general. As we saw with special counsel Robert Mueller’s report in 2019, there is typically great outside pressure on the AG to make such reports public (though doing so is not required). Barr obviously knew enough about Durham’s investigation to grasp that there was unlikely to be a grand, overarching criminal-conspiracy case; there had, however, been rampant malfeasance and abuse of power that might never come to light absent a comprehensive investigative report.
Durham’s indictment of Danchenko and his mid-September indictment of Democratic lawyer Michael Sussmann appear to confirm that he is building toward a final report, not wide-ranging criminal charges.
I am not saying there will be no more indictments. There could be. But if there are, they will likely be similar to the indictments of Sussmann and Danchenko — who, you no doubt noticed, were separately charged, and are not alleged to have conspired with each other or anyone else. Those indictments imply that Durham has uncovered a Clinton-campaign scheme to leverage the Obama/Biden administration’s investigative powers against Clinton’s political opponent, Trump. Yet, Durham has charged the two defendants only with lying to the FBI. And tellingly, he did not file charges against people with whom Danchenko and Sussmann collaborated in supplying specious information to investigators, much less accuse the investigators themselves of misconduct.
At work here is the same phenomenon I addressed during the Mueller probe when predicting that there would be no “Trump-Russia collusion” conspiracy charges. If Mueller had had such a case, he would have brought it against the first defendants he charged — especially the ones who’d agreed to cooperate with his investigators. The way a prosecutor builds a big conspiracy case is by getting the suspects to admit the existence of the conspiracy and the roles they played in it. Charging the small fish with comparatively minor crimes doesn’t get you there. And you don’t develop effective cooperating witnesses by having them plead guilty only to being liars — which, were they later to testify, would be the first thing the jury learned about them.
Let’s think about Durham’s investigation. If there were a grand conspiracy to prosecute, it would have to center on some scheme to defraud the court and obstruct judicial proceedings. Furthermore, for it to have been as heinous as the most outraged Trump supporter believes it was, Obama-administration officials — or at the very least, FBI agents — would have to be implicated.
Now, consider Danchenko. If anyone were to have been instrumental in such a scheme, he would be the guy. He is the principal source of the scurrilous information in the dossier compiled by his associate Christopher Steele. There is reason to suspect he knew that Steele was sharing information with the U.S. government, which, in turn, was using it as a predicate to investigate Trump — perhaps even to seek eavesdropping warrants from federal judges.
But what does Durham charge Danchenko with? Lying to the FBI. And not even lying about the all-important substance of the information he communicated to Steele, but just about the sources from whom he heard it.
To be sure, there is abundant reason to believe Danchenko knew that what he told Steele was nonsense, and that Steele had to have known it was at least highly suspect. But Durham doesn’t allege that; he goes for two charges that should be much easier to prove. He alleges that Danchenko knowingly lied when claiming some of the dossier information came from Trump associate Sergey Millian, and when claiming none of it came from Clinton crony Charles Dolan.
And lied, it must be emphasized, to the FBI.
For those of us who’ve closely followed it, the most dismaying part of the collusion caper (as we observed in our editorial over the weekend) has been the FBI’s abuse of its investigative authorities. Durham is not saying, in his indictments, that there was no such abuse — as in recklessness, incompetence, and failure to be as forthright with the court as the law and agency procedures require. But he is also not alleging that the FBI — either as an institution, or in a conspiracy among individual agents — defrauded the court or otherwise obstructed justice.
Sussmann, like Danchenko, was indicted for allegedly lying to the FBI. And, like Danchenko’s indictment, the Sussmann indictment avoids the question of whether the defendant actually believed the substance of his suspicions about Trump. Sussmann is not accused of lying when he claimed that Trump was using Alfa Bank as a conduit for secret communications with the Kremlin; he is alleged to have deceptively concealed that he was advancing this claim on behalf of clients — the Clinton campaign and a tech executive who was hoping for a government job if Clinton defeated Trump.
There is one FBI official who can be said to have caused misinformation to be given to the FISA court, lawyer Kevin Clinesmith. But he was indicted for lying to an FBI agent about whether the CIA had informed the bureau that Carter Page had been an agency informant, not for defrauding the court. In fact, in sentencing him to no jail time, the judge (implausibly) seemed to accept that Clinesmith did not intend to deceive the court.
The bottom line of all this is that Durham’s position is that the FBI was duped, not that it was part of a grand conspiracy.
It may well be true — I think it is true — that the FBI was predisposed to believe the worst about Donald Trump. This predisposition, if it existed, would almost certainly have influenced the bureau’s dereliction in failing to take rudimentary steps to verify the outlandish allegations being made about Trump before relying on them for investigative purposes (including in sworn court applications). The FBI would thus be culpable, in a practical and moral sense, for enabling the Clinton campaign to exploit government power for political purposes. But plainly, Durham is not going to allege that FBI officials knowingly and willfully conspired to deceive the court.
Let’s remember, moreover, some other relevant history.
During the 2020 campaign, then-AG Barr made clear that former president Obama and vice president Biden were not subjects of Durham’s investigation. There was also public reporting that former CIA director John Brennan, who energetically hyped the Trump–Russia-collusion narrative, was told he was not a subject of Durham’s investigation before submitting to at least one extensive interview. And in congressional testimony (among other public statements), while then-AG Barr was blistering in his criticism of the FBI, he allowed that its excesses may have been driven by overzealousness, not criminal intent. That is, bureau higher-ups may have been sincerely concerned, based on flimsy evidence, about Russian infiltration of the Trump campaign, as opposed to intentionally collaborating with Trump’s political opposition — they may have been incompetent, rather than malevolent.
Clearly, these are not the makings of a prosecutable conspiracy that put the government’s law-enforcement and intelligence apparatus in the service of Democratic Party objectives to get Mrs. Clinton elected and, failing that, to undermine Trump’s administration.
Of course, that doesn’t mean such a conspiracy didn’t exist. The government’s law-enforcement and intelligence apparatus did in fact serve the Democrats’ anti-Trump objectives. For a criminal prosecution, though, it is not sufficient to prove that something bad happened. Prosecutors must also prove beyond a reasonable doubt that the bad thing happened because the participants knowingly and willfully planned it that way.
It looks like Durham can’t prove that.
That’s not surprising. As I elaborated in Ball of Collusion, many things that smack of abuse of power are not prosecutable crimes. The law necessarily gives government officials a wide berth to use aggressive investigative measures based on dubious suspicions. It is easy to see the abuse, but much harder to establish it as a crime. That is why a system that fails to hold abusive officials politically accountable will be a failed system. Establishing their criminal guilt is much harder.
Political dirty tricks are similarly ill-suited to criminal prosecution. We don’t want the FBI and Justice Department poking around campaigns and elections. Politicians habitually paint opponents in the worst light and tell the public many terrible things about them — gross exaggerations as well as flat-out falsehoods. Sadly, it is not all that unusual for the demagoguery to include allegations of criminal misconduct and traitorous corruption. Such allegations, when unsupported by evidence, are morally reprehensible. On occasion, they may even be slanderous under the civil law. But political mudslinging is generally not serious enough to warrant prosecution because we want our politics cordoned off from intrusion by the incumbent party’s criminal investigators.
For all these reasons, Durham has long appeared, at least to my eyes, to be heading toward a narrative final report, not a sweeping criminal indictment. Both of his recent indictments, in their rich detail, are consistent with the theory that “Trump–Russia collusion” was a political narrative concocted by Hillary Clinton’s campaign. Campaign operatives spun and manufactured the collusion “evidence.” They understood that the Obama administration shared their baleful view of Trump and that the media would be onboard. And with those built-in advantages, they calculated that Obama administration national-security and law-enforcement officials were open to believing and airing dark suspicions about Trump.
It will make for an infuriating report. But not a criminal indictment.
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