TL;DR: John Durham, a special investigator, looked into how the FBI handled an investigation into Trump's 2016 campaign and Russia, and his report raised some concerns and recommendations but had little legal impact.
- John Durham, a seasoned prosecutor, was appointed as special counsel in 2019 to investigate the handling of the 2016 probes into possible coordination between Donald Trump's campaign and Russian efforts to interfere in the U.S. election. His focus was on the FBI's probe, known as Crossfire Hurricane, and the investigation led by special counsel Robert S. Mueller III.
- Durham's report criticized the FBI's reliance on raw, unanalyzed intelligence, accusing them of moving too hastily in their investigation into Trump’s 2016 campaign based on uncorroborated evidence. He recommended the creation of a new position at the FBI to vet and ensure the integrity of politically sensitive investigations.
- The report drew mixed responses, with Democrats dismissing it as politically motivated, while Republican figures, including former President Trump, hailed it as a victory. The report had limited legal consequences, which include a single guilty plea and two failed prosecutions.
Who is John Durham? What Was His Role?
John Durham, a seasoned prosecutor, was thrust into the national spotlight in 2019 when he was tasked with an unprecedented investigation by the Trump administration.
Trump’s Attorney General, William Barr, appointed Durham as special counsel, which is a way to conduct an investigation independently, without the risk of a conflict of interest with the usual prosecuting authority.
His job was to examine the FBI's handling of the 2016 probes into potential coordination between Donald Trump's campaign and Russian interference in the U.S. election.
The nature of this investigation into the investigators was inherently controversial, mired in a complex web of politics and competing narratives.
Durham's mandate was wide-ranging, encompassing the investigation into Trump's possible links with Russia, with a focus on the FBI’s probe — known as Crossfire Hurricane — and the investigation led by special counsel Robert Mueller.
Mueller's 2019 report, concluded that Russia had indeed interfered in the 2016 presidential election but did not find sufficient evidence to charge any Trump campaign members for participating in a criminal conspiracy.
In the report, Durham comments on the extent of the investigation.
"The Office's investigation was broad and extensive. It included investigative work both domestically and overseas. It entailed obtaining large document productions from businesses, firms, government agencies, universities, political campaigns, internet service providers, telephone companies, and individuals. The Office interviewed hundreds of individuals, many on multiple occasions."
What Questions Was he trying to Answer?
Durham outlines the purpose of the investigation in detail, and laid out five questions:
- Was there adequate predication for the FBI to open the Crossfire Hurricane investigation from its inception on July 31, 2016 as a full counterintelligence and Foreign Agents Registration Act ("FARA") investigation given the requirements of The Attorney General's Guidelines for FBI Domestic Operations and FBI policies relating to the use of the least intrusive investigative tools necessary?
- Was the opening of Crossfire Hurricane as a full investigation on July 31, 2016 consistent with how the FBI handled other intelligence it had received prior to July 31, 2016 concerning attempts by foreign interests to influence the Clinton and other campaigns?
- Similarly, did the FBI properly consider other highly significant intelligence it received at virtually the same time as that used to predicate Crossfire Hurricane, but which related not to the Trump campaign, but rather to a purported Clinton campaign plan "to vilify Donald Trump by stirring up a scandal claiming interference by Russian security services," which might have shed light on some of the Russia information the FBI was receiving from third parties, including the Steele Dossier, the Alfa Bank allegations and confidential human source ("CHS") reporting? If not, were any provable federal crimes committed in failing to do so?
- Was there evidence that the actions of any FBI personnel or third parties relating to the Crossfire Hurricane investigation violated any federal criminal statutes, including the prohibition against making false statements to federal officials? If so, was that evidence sufficient to prove guilt beyond a reasonable doubt?
- Was there evidence that the actions of the FBI or Department personnel in providing false or incomplete information to the Foreign Intelligence Surveillance Court ("FISC") violated any federal criminal statutes? If so, was there evidence sufficient to prove guilt beyond a reasonable doubt?
“Our findings and conclusions regarding these and related questions are sobering,” Durham writes.
Durham’s Critique of FBI's Reliance on Raw Intelligence
One of the key findings in Durham's report, which can be read in full here, was his criticism of the FBI's reliance on raw, unanalyzed intelligence in their investigation.
The report suggested that the FBI moved too hastily, launching their investigation into Trump’s 2016 campaign based on uncorroborated evidence. In contrast, the FBI had briefed Hillary Clinton’s aides during her 2016 presidential campaign in advance when they gathered evidence of a foreign actor trying to garner influence with her. Clinton and Trump have been treated "markedly different," according to the report.
Durham's report details how the FBI launched the investigation with no evidence of contact between Trump campaign members and Russian intelligence officers.
It specifically names Russia experts within the FBI who were not consulted before the investigation began. Had they been, Durham asserts, the investigation would have never started.
Durham recommended that a new position be created at the FBI to help vet and ensure the integrity of politically sensitive investigations. This, he argued, could prevent similar missteps in the future
This criticism and the serious accusations against the FBI underscored a lack of due diligence and an overreliance on unconfirmed evidence.
The Justice Department's inspector general noted significant issues in the Russia investigation, especially concerning warrant applications for surveillance on Carter Page, a former Trump campaign advisor, which were riddled with errors and omissions.
This, in part, led to the four-year probe’s single guilty plea. Kevin Clinesmith, a former FBI lawyer, was sentenced to one-year probation after admitting to altering a government email used to justify the secret surveillance of Page.
Two other individuals, private researcher Igor Danchenko and cybersecurity lawyer Michael Sussman, were accused of lying to the FBI, but both were acquitted in court.
Durham adds this opinion on the matter of the acquittals.
“...the likelihood of an acquittal due to unpopularity of some aspect of the prosecution or because of the overwhelming popularity of the defendant or his/her cause is not a factor prohibiting prosecution.”
The report found no evidence of political bias among investigators.
Reflection
The report raises significant questions about the practices of the FBI and other government agencies in their handling of politically sensitive investigations. Yet, the limited legal consequences resulting from the report suggest allegations of widespread FBI corruption might not be as substantiated as previously portrayed.
A Familiar Critique
A number of the criticisms made in the Durham Report are not entirely new. A similar 2019 Justice Department report by Inspector General Michael Horowitz had already identified what he called "serious performance failures" among FBI agents in the investigation. Following that report, FBI Director Christopher A. Wray implemented changes in the agency to address the identified issues.
However, Durham's report delves deeper and paints a more critical picture of the FBI's handling of the investigation than the previous report by Horowitz. While the Inspector General found no "documentary or testimonial evidence of intentional misconduct" by the FBI and validated their "authorized purpose" in initiating the investigation, Durham argues that the FBI's probe into Kremlin ties had been based on "raw, unanalyzed, and uncorroborated intelligence."
“The Crime of the Century”
Donald Trump had high expectations for the Durham probe, predicting it would reveal the "crime of the century."
In response to the release of the report, Trump took to his social media platform, Truth Social, where he claimed the report was a victory.
"THEY ARE SCUM, LIKE COCKROACHES ALL OVER WASHINGTON, D.C. Congratulations to John Durham on a Report that is being praised for its quality, importance, and professionalism, by friend and foe alike!"
Did the Durham report meet these high expectations? Despite the serious criticisms of the FBI, the Durham investigation found few instances of violations of the law and resulted in just one guilty plea.
Political Reactions to the Durham Report
The Durham report has elicited a spectrum of reactions across the political aisle. Democrats, who have been largely suspicious of the probe's motivations, showed little change in their stance following the report's release. Rep. Jerrold Nadler (D-N.Y.), the ranking member of the House Judiciary Committee, described it as "a political rehashing of what the Justice Department Inspector General already made public in 2019," and emphasized that nothing in it changed the outcome of the Mueller investigation.
On the other end of the spectrum, Republicans are touting the report as validation of their long-held suspicions. Florida Gov. Ron DeSantis (R), who is expected to soon launch a 2024 presidential campaign, asserted that the report "confirmed what we already knew: weaponized federal agencies manufactured a false conspiracy theory about Trump-Russia collusion.”
The Durham Report confirmed what we already knew: weaponized federal agencies manufactured a false conspiracy theory about Trump-Russia collusion. It reminds us of the need to clean house at these agencies, as they've never been held accountable for this egregious abuse of power.
— Ron DeSantis (@RonDeSantisFL) May 15, 2023
The FBI's Response and Steps Forward
In response to the Durham report, the FBI acknowledged past failings and pointed to the "dozens of corrective actions" it had already put in place. The agency issued a statement saying, "Had those reforms been in place in 2016, the missteps identified in the report could have been prevented."
As we step back from the political fray, the Durham report serves as a sobering reminder of the complexities and potential pitfalls of politically charged investigations. The full report can be found here for those interested in delving deeper.