Durham Follies

(Credit: University of St. Joseph)


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Former President Donald Trump’s supporters in Congress and the media are predicting that they can use Justice Department Special Counsel John Durham’s expected final report to keep conspiracy allegations alive despite his losses in court last year in trying to prove that rogue members of the FBI conspired with Democrats to make false allegations of Russian help for the 2016 Trump presidential campaign.

Trump Attorney General William Barr named Durham in 2019 to investigate Trump’s allegations that Democrats working with FBI personnel smeared his campaign and several advisors with false theories of “collusion” with Russians. 

Terms of the appointment specify that Durham should prepare a report on his investigation for submission to the U.S. Attorney General. That office is currently held by Merrick Garland, a Democrat nominated by President Biden. Whether or not Garland releases the report to the public, it is virtually certain that Republicans in Congress will demand its release and feature Durham and whatever statements he can generate for a massive display of hearings and media appearances.

“The special counsel’s looming report is the only chance the American people will ever get to hold the Clinton campaign and the FBI accountable for Russiagate,” according to a National Review article after the jury verdict, by Andrew McCarthy, a frequent pundit on Fox News and conservative media after Durham’s last major prosecution ended in a prompt acquittal of the defendant, former FBI consultant Igor Danchenko.

Missing entirely from mainstream newspaper, broadcast, cable and academic analysis, however, is that Durham’s prosecution track record includes rulings by four federal judges throwing out convictions in which he played a key prosecution role. Largely missing also is reporting on disturbing pressure tactics against FBI agents and other witnesses to create pro-prosecution testimony to vindicate Durham’s theories. More on that below.  

Aside from those shortfalls in Durham’s performance, the prosecutor enjoyed a reputation in Connecticut and elsewhere as a capable career professional who almost inexplicably ruined his reputation.

Thus, Newsweek published “Durham Blasted by Experts After New Acquittal: ‘Laughed Out of Court Twice’” by Aila Slisco, who reported mockery of Dunham elsewhere in the legal community for not fulfilling Trump’s prediction that the prosecutor would prove “the crime of the century” in a massive conspiracy. Other samples:

Laurence Tribe, professor emeritus of constitutional law at Harvard University, told Newsweek that the acquittal was evidence Durham’s “groundless mission has now failed yet again, putting yet another dismal marker on William Barr’s shameful record as Trump’s henchman and the worst Attorney General in our nation’s history.”

“John Durham racks up another acquittal, this time on a case he tried personally,” legal analyst and former federal prosecutor Elie Honig tweeted. “His investigation will go down as a shameful abuse of prosecutorial power in service of political vengeance. Juries — our most basic civilian bulwark — have firmly rebuked this abuse of power.”

Our analysis below, to be amplified in a book-length treatment expected late this spring, is that the portents of Durham’s misguided current crusade were visible more than a decade ago, as I reported for a Harvard University’s Nieman Watchdog in a column about a separate scandal,  “New Questions Raised About Prosecutor Who Cleared Bush Officials in U.S. Attorney Firings.”

The 2010 column noted the stellar reputations of Durham and his longtime Connecticut prosecutorial colleague Nora Dannehy but revealed a ruling by a three-judge federal panel finding that they had illegally suppressed evidence in order to win convictions against a Connecticut lawyer.  I had undertaken the in-depth research in part because I found the prosecutorial zealousness and lack of accountability a disturbing descent from the higher standards of justice I had witnessed as a Courant reporter covering Connecticut’s federal courts from 1976 to 1981. Nieman Watchdog, an adjunct to Harvard’s Nieman Fellowship program, was a publication for journalists edited by the late Barry Sussman, whose distinguished career as an editor and author included serving as the Washington Post’s primary editor for its Watergate coverage in the 1970s.

After my Nieman report, my research unearthed a 2003 story by Connecticut Law Tribune staff writer Kellie A. Wagner under the headline “Attorney’s Trial Tactics Impugned.” She reported that Connecticut U.S. District Judge Janet Bond Arteton had “taken the extraordinary step of overturning a weapons charge conviction largely on account of prosecutorial misconduct” by Durham. More specifically, the judge found that Durham had personally vouched for pro-prosecution witnesses while maligning defense counsel and his arguments, and that Durham had alluded to highly prejudicial facts not in evidence. 

The Recent Durham Probe

Durham, a career prosecutor whom Trump nominated in 2017 to become U.S. attorney for Connecticut, resigned in 2020 from that political post but continued thanks to his appointment by the now-departed Barr to work for the Justice Department as special counsel.

Many conservatives call Durham’s target “Russiagate,” a term derived from the “Watergate” scandal that toppled President Nixon in 1974. Trump critics who assert that solid evidence shows illegal Russian help for Trump also use the “Russiagate” term, creating a confusion for the public because of the two contradictory meanings.

The Durham prosecution brought to trial last fall the U.S.-based Russia expert Igor Danchenko, a consultant, on five charges of making false statements to the FBI to advance their probes. Durham’s supporters anticipated that Danchenko’s conviction would vindicate Durham’s team, especially after its embarrassing loss in May in a related case. A jury had promptly acquitted lawyer and former Justice Department cyber expert Michael Sussmann (no relation to Barry Sussman) from a false statement charge stemming from Sussmann’s tip to a former FBI colleague in 2016 about suspected Russian help for Trump.

The Durham team hoped to tie Sussmann’s actions to the Democratic Party and the Hillary for President campaign that used Sussmann’s then-law firm Perkins Coie for political and cybersecurity work.

Durham’s efforts to link Clinton to Sussmann’s tip created major headlines during the trial in the pro-Trump media stemming from a supposedly accidental revelation document language mentioning Hillary Clinton.

That led to one such little-noticed judicial rebuke at sidebar out of the jury’s hearing (but reported by the “Emptywheel” blog of expert independent legal analyst Marcy Wheeler, who purchased transcripts):  Durham’s team asked former Clinton Campaign Manager Robbie Mook to read to the jury a part of a memo mentioning Clinton that the trial judge had ordered prosecutors to cut before showing Mook.  

In his testimony, Mook also stated that the campaign paid Perkins Coie a flat monthly retainer for services that seemed to be worth so much more than the retainer that he did not bother reading details of the billing because of other campaign obligations. He testified also that neither he nor Clinton were aware that Sussmann’s firm had hired Fusion GPS to draw on Steele’s research. Neither did he know, he testified, that Sussmann, a former federal prosecutor working with the FBI on behalf of his client, the Democratic National Committee, to solve a hack of DNC computers during the campaign, was planning to provide the FBI with a tip about another matter involving Russia.

The jury in May promptly acquitted Sussmann, thereby dealing a major public relations blow to Durham’s investigation and its supporters such as Trump and Barr.

Trump had been calling Durham “Bull Durham,” to tout him as an exceptionally determined and skilled prosecutor who would vindicate Trump from claims in the so-called “Steele Dossier” and implicate Clinton and FBI personnel in crime.

Sussmann’s acquittal thus created a spotlight on Durham’s prosecution of Danchenko, a former Brookings Institution Russia expert who helped fellow consultant and former British spy Christopher Steele and then the FBI analyze Russian activities.

But after the election President Trump and his colleagues denied and deplored suggestions of foreign influence.

Among their main targets were a consultancy called Fusion GPS and FBI personnel, including then-Director James Comey, who had explored Russian interference allegations stemming from Fusion GPS and elsewhere.

The conservative hedge fund tycoon Paul Singer had originally hired the research consultancy Fusion GPS as part of a “stop-Trump” effort within the Republican Party. Singer stopped his funding because of Trump’s victories in GOP primaries.

Fusion GPS, co-founded by former Wall Street Journal reporters Glenn Simpson and Peter Fritsch, then marketed its services to the law firm Perkins Coie, which represented Democratic clients. Fusion GPS then hired as a consultant Christopher Steele, a former top Russian expert for the British spy agency MI6, who in turn drew on help from Danchenko.

Fusion GPS and Steele argued in 2016 along with certain Perkins Coie staff that their raw findings might prove valuable to the FBI in a probe the agency had begun independently of purported Trump campaign ties to Russians. But it was highly disputed how much or even whether the Clinton campaign knew specifics of the lawyer Sussmann’s and GPS outreach efforts.

Durham, the special counsel, obtained a grand jury indictment charging Danchenko with five counts of false statement to the FBI regarding his sourcing for Steele in the 2016 “dossier,” which consisted of reports of unconfirmed raw intelligence.

Danchenko Verdict

After the Sussmann’s acquittal Durham’s conservative supporters in the media fanned excitement with previews of the Danchenko trial to be held in the Washington suburb Alexandria, VA.

U.S. District Judge Anthony Trenga, a Republican nominee of President George W. Bush, denied a defense motion to dismiss the indictment for lack of evidence. But the judge wrote that his decision to permit the trial was a close call legally, a warning shot to all concerned.

The indictment’s five counts focused on whether Danchenko criminally lied to the FBI when he stated he had never “talked” during his research with Democratic consultant Charles “Chuck” Dolan, Jr.  After the prosecution rested its case the judge dismissed the count for lack of evidence that Danchenko had ever “talked” with Dolan since they communicated by email and FBI agents failed to nail down the difference.

That left four counts of alleged false statements by the defendant, each involving Sergei Millian, then head of the Russian-American Chamber of Commerce. In essence, Danchenko reportedly said in four 2017 conversations with FBI personnel that he had July 2016 communication by phone either with Millian or someone else pretending to be Millian.

Prosecutors argued that Danchenko must have been lying and they charged him with four counts. They said their search records for listed phones showed the two men had not spoken. Lawyers for Danchenko, who did not take the witness stand, argued that such a call could have occurred via a mobile Internet application not listed in the searched records. Pundit Marcy Wheeler, who reported in depth about Durham’s probe on her Emptywheel blog, mocked him and his team for not grasping that world-travelling international consultants often use mobile apps, often with security features, when undertaking sensitive discussions.

The defense argued also that Steele’s “dossier” containing Danchenko’s research was shared with the FBI after the agency had already launched its “Crossfire Hurricane” probe of alleged Russian ties based on other information not part of the trial. Also, Danchenko had told his FBI interviewers that he regarded some of the Steele dossier information as unreliable raw intelligence although he asserted responsibility for passing on a majority of it.

Durham’s team failed to present as witnesses either Steele or Millian, both of whom lived overseas.

Jurors witnessed the unusual spectacle of Durham jousting with two of his own witnesses, the two key FBI agents who had interviewed Danchenko. The prosecutor suggested that they unduly sympathized with the defendant, whom the FBI paid more than $200,000 as a consultant.

In a striking assertion, longtime FBI counterintelligence agent Kevin Helson said Danchenko’s prosecution was “dangerous” and had hurt the nation’s ability to gather intelligence.

Durham’s dispute with FBI agents reassured some pro-Trump, anti-FBI commentators outside of court as confirming their suspicions of the agency.

But the display could hardly have helped the prosecution with the jury since neither Danchenko nor FBI agents were accused of conspiring with each other. More generally, the disputes also illustrated how Durham’s team had repeatedly threatened FBI witnesses and consultants with criminal prosecution in the Sussmann and Danchenko cases if they failed to support the prosecution’s theories with sufficiently precise testimony.

The jury spent about nine hours deliberating (including meal breaks) before acquitting Danchenko on all four charges on Oct. 18.

With the expiration of a Virginia grand jury, the tally for the 3.5-year Durham investigation is acquittals for the two major defendants and plea bargain with a sentence also of probation for former FBI lawyer Kevin Clinesmith, whom DOJ Inspector General Michael Horowitz had exposed (and whom Durham prosecuted) for exaggerating evidence in a warrant seeking renewal of the surveillance of a Trump campaign aide.

The Washington Post editorial board opined that Durham-Barr track record showed that they had pursued a partisan, pro-Trump agenda. Pro-Trump media differed, saying the verdicts showed that Trump cannot obtain justice.

What’s Next?

Durham is expected to submit a report to Attorney General Merrick Garland, who has discretion on whether to release it publicly. Trump supporters hope Durham relitigates via the report his suspicions of Democrats and the FBI and that public pressure will enable him to testify on Capitol Hill and use the media to denounce Democrats and those FBI personnel he suspects of wrongdoing.

Others note that that claims of liberal bias by the FBI are undercut by the history: Neither the FBI nor its predecessor have ever been led by a Democrat during the entire near-century of their existence. The FBI’s overwhelming institutional ethos generally tilts right, as commonly the case with law enforcement bodies.

As for those acquitted or otherwise investigated at great fanfare?

Few express any concern about those like Sussmann, Danchenko, the accused FBI personnel and their family hardships. Defendants and many witnesses often lose their jobs and must spend vast amounts on defense lawyers, with seldom any accountability for prosecutors. That’s all part of what we accept as the “justice” process.

Regarding battles to come?

Pro-Trump pundit Andrew McCarthy, a former federal prosecutor, is looking forward to new fights and disclosures. “The report has always been John Durham’s primary job,” he wrote for the National Review. “There was never a realistic chance that he could make a comprehensive Russiagate record in a major prosecution.”

“He took a calculated risk by bringing comparatively trivial cases against minor players, before what were sure to be hostile jury pools,” McCarthy continued, illustrating the notion in some circles that suspects must be guilty even if proof is lacking. Of Durham, McCarthy wrote, “He has gotten the predictable results: acquittals across the board.”

A different view came from former federal prosecutor Dennis Aftergut, now counsel to the group Lawyers Defending American Democracy. He targeted Barr and Durham more personally in a column for NBC News:

“Barr’s attempts to rehabilitate his image cannot erase his sad final legacy as a Trump enabler,” Aftergut wrote. “Special counsel John Durham, who once enjoyed a solid reputation as a prosecutor, now owns what may be the worst trial record of any special counsel or independent prosecutor in American history: no wins, two losses.”

Formerly a Hartford Courant reporter, Kreig edits the non-partisan Justice Integrity Project in Washington, D.C. after a career in law, journalism and nonprofits. This story was originally published in the Winsted Citizen.