The Durham Investigation Fizzles Out
An evening Jackal.
Happy Friday to all who celebrate. I can give an update and say the flood issues have resolved, even if they did leave some damage. This is also a pretty heady subject, so fair warning before I put this delicious cake in the oven. And I am baking this cake after swallowing a hefty chunk of the Durham report, which I read so you don’t have to. Let’s dive in.
On Monday, Special Counsel John Durham released the long-awaited report on his investigation, finally bringing it to a conclusion four years after his appointment. Funnily enough, I have written about the Durham Investigation four other times: Here, here, here, and here. I’ll give you a quick primer from one of those pieces:
John Durham is a special investigator appointed by former Attorney General Bill Barr to investigate the origins of the Trump-Russia investigation, a.k.a., Crossfire Hurricane.
Barr did this even though an internal report showed that the investigation into Trump and Russia was properly predicated and opened without political motive.
Durham has completed his work after four years of investigating.
In a stark contrast to Robert Mueller’s investigation, Durham only produced two indictments on his own, and both men were acquitted.
The last point there is pretty crucial, because it’s important to say - off the bat - that Durham’s investigation clearly failed to live up to the hype. For years Donald Trump and others in conservative media have said Durham would eventually find the “crime of the century” that would lead to a series of indictments. Some of the typical targets were Andrew McCabe, Peter Strzok, James Comey, Hillary Clinton, and even Barack Obama. Trump has argued for years that his Campaign was targeted by a nefarious plot within the FBI, and that it would eventually be uncovered. Not only did Durham fail to uncover that “plot,” he sort of agrees with the “plotters.”
Durham was really supposed to function as an anti-Mueller report of sorts, and offer an explanation as to why Trump and his Campaign were really investigated for the first two years of his Administration. For years Trump claimed that the FBI investigation into his Campaign, and later Mueller’s investigation into his Campaign and Administration, were “hoaxes,” and Durham’s job was more or less to prove that was true. As it turns out, there were very good reasons to investigate Donald Trump’s Campaign and its connections to Russian intelligence. And while it’s easy to take a lot of off-ramps into other arguments, it’s important to note that the core of this centers around a Campaign that played footsie with the Russians, and the basic facts surrounding that have not really changed. Durham, more or less, ultimately comes to the same conclusion as the FBI’s inspector general and says an investigation into Donald Trump’s Campaign was appropriate (although it takes him longer to get there).
What did Durham find?
Before I get into this section, I do think it’s important to say that a lot of Durham’s findings are a rehash of the inspector general report I mentioned above. The author of that report, Michael Horowitz, found that while the FBI’s investigation into Trump’s Campaign was opened properly, there were a few major mistakes committed by the FBI. Specifically, Horowitz found that the FBI’s investigation into Carter Page - a member of Trump’s Campaign - was fraught with errors. One attorney for the FBI even altered an email in an attempt to make the investigation into Page look more legitimate than it seemed, which got said attorney - Keven Clinesmith - indicted. Clinesmith’s guilty plea (which resulted in no prison time) remains Durham’s only successful indictment, and it was not even generated by his team.
Durham does outline some new (or at least non-public) information on Page that is alarming. In a nutshell, the FBI was extremely aggressive in its pursuit of surveillance on Page, to the point where James Comey - the former FBI director - is even asking questions about it.
But that’s really all that is new. A lot of Durham’s other findings are found in other writings, like his two previous indictments or Horowitz’s report. However, I do want to say this about Page: There were definitely good reasons to investigate him and his connection to Trump’s Campaign. In 2016, Page gave a speech in Moscow and later tried to reach out to the Russians by bragging about his access to the Trump Campaign. Page even communicated to the FBI that the Russians were trying to recruit him to be a spy. The FBI’s New York field office was planning to investigate him by the time the Crossfire Hurricane team got their arms around it. And then you have to also consider that at the time Page was investigated by the FBI, he was no longer working on Trump’s Campaign.
Page was probably seen as a low-hanging fruit for the Russians, but he ultimately had no connection to them and the FBI abused the procedures outlined by the Foreign Intelligence Surveillance Act (FISA) to surveil him. Horowitz identified the issues with this surveillance (called the WOODS procedures) in his report, and that has led to real reforms within the FBI. So, that is real, tangible, and something to note. We were previously assured by the FBI that the WOODS procedures were foolproof, but that was obviously wrong.
OK, so what else is there?
Durham takes a long time (306 pages) to get to his point, but you can actually find his conclusion on page 295 of his report:
Durham ultimately concludes that instead of opening a full investigation into Trump’s Campaign (and various individuals), the FBI should have opened a preliminary investigation. That is, ultimately, his main gripe. He never says that no investigation should have taken place. He does not even say that there was no connection between Trump’s Campaign and the Russians. He simply says that the FBI could have done a cleaner, more efficient job if they had looked at more evidence and wrapped up their investigation faster. For instance, Durham spends a large portion of his report arguing that the FBI spent too much time on the Steele dossier, and could have pursued other evidence that countered their central argument, bringing the investigation to a speedier conclusion.
I think it’s easier to say that in hindsight than it is to say it in real time. A point that is overlooked by many people is that while Crossfire Hurricane was opened in July 2016, the public did not officially learn of its existence until March 20, 2017, when James Comey testified about it before Congress. Less than two months later, Trump fired Comey for - let’s not kid ourselves - investigating the Trump Campaign. If the Multiverse™ is real, somewhere on Earth 47, Crossfire Hurricane ended in January of 2018, and came to the same conclusions as Robert Mueller: That there was evidence of a conspiracy between the Trump Campaign and Russian intelligence officials, but none of it amounted to criminal activity (at least the kind that can be proven beyond a reasonable doubt). By firing Comey, Trump actually prolonged his own suffering, and also (indirectly) led to some of Durham’s gripes.
Should I take this report seriously?
I think the quick answer to this question is, “No.” Aside from the two pieces outlined above, the rest of Durham’s report really functions as an op-ed. Durham has major disagreements with the FBI’s handling of Trump’s Campaign and he voices them, but a lot of what fuels his argument seems to be retreads of old conservative complaints from 2017 forward.
Take, for instance, Durham’s complaint that the FBI had “no evidence” of “collusion” at the time that they opened the investigation in July of 2016. Durham actually spends a good chunk of the report trying to re-enforce this argument. The problem is that - duh - the FBI did not need evidence of collusion to open an investigation into Trump’s Campaign. That’s why you open one in the first place. While it is true that in July 2016, no one outside of Trump’s Campaign knew about their supposed connection to illegal Russian activity, it is also true that the Oklahoma City Thunder used to be the Seattle Supersonics: THINGS CHANGE. As the investigation went on, the FBI (and later Mueller) turned up more evidence; that is the way investigations work.
At other times, Durham uses a slight-of-hand to make his findings sound more nefarious. Take for instance, this passage from page 287 of his report:
We examined as well whether the actions and conduct of Sussmann and various other persons in advancing the Alfa Bank and Yotaphone allegations established a conspiracy to defraud the United States, in violation of 18 U.S.C. § 371. Ultimately, we concluded that our evidence was not sufficient to obtain and sustain a criminal conviction. We did not obtain admissible evidence likely to meet the government’s burden to prove beyond a reasonable doubt that the individuals acted “willfully,” i.e., with general knowledge of the illegality of their conduct. We faced significant obstacles in obtaining evidence because many of the individuals and entities involved invoked multiple privileges, including the attorney-client and Fifth Amendment privileges.
This is, perhaps, the best evidence that Durham’s audience isn’t so much the general public, but Fox News and conservative media. There is a really easy way around the “obstacles” outlined by Mueller: The crime-fraud exception. If Durham really wanted to indict Sussmann for more crimes, he could have used this to get around any privilege Sussmann was claiming. The reality is that Durham couldn’t do so because it was flat-out impossible to prove that Sussmann did anything illegal, period.
Another point that bugged me about the report: Durham spends a considerable amount of time suggesting that Danchenko planted the idea of the infamous “pee tape” in the Steele Dossier. Durham apparently chased this lead so far into the ground that he interviewed a manager at the Ritz Carlton in Moscow, and hints to the reader that the pee tape story is made up.
It is entirely possible that the pee tape story is made up. In fact, a reader of the Jackal still owes me a bottle of Scotch because I have said for years that it is a fake story. But here is what drives me crazy about Durham’s report: Mueller actually talked to Michael Cohen about the pee tape, and he details a series of text messages he had with a Russian businessman, who said he “stopped” the outflow of tapes. Cohen also had said he started looking for it in 2013. So, forget Danchenko, why didn’t Durham just talk to Cohen? Instead, Cohen is mentioned three times in Durham’s report and one of them is Durham quoting someone else.
Me too. Maybe we can finally stop talking about the 2016 election, but I wouldn’t bet on it. All in all, the Durham Report tries to replay the “greatest hits” of the anti-collusion argument from 2017 to the present. The problem is that the original songs are just flat-out crappy.
Here is what I will say in closing, because I think it’s important: I still 100% believe in and back up the claim that there was “collusion” between the Trump Campaign and the Russians because it is obviously, demonstrably true.
See you all next week.