Support The Bulwark and subscribe today.
  Join Now

How Bill Barr and John Durham Blazed a Trail for Jim Jordan

Lies and half-truths were at the heart of the failed attempt to “investigate the investigators.” Expect even more of them from the House GOP.
January 31, 2023
How Bill Barr and John Durham Blazed a Trail for Jim Jordan
U.S. Rep. Jim Jordan (R-OH) (Photo by Drew Angerer/Getty Images)

A headline in yesterday’s New York Times opinion section pronounced former Attorney General William Barr’s efforts to rehabilitate his image “kaput.” Hoping to erase from public memory any recollection of how avidly he carried water for Donald Trump, Barr has engaged in a public-relations campaign he launched shortly after Trump left office and advanced in a memoir in which he criticizes the former president he served.

But a Times report last week about the effort Barr initiated to “investigate the investigators”—setting John Durham loose to hunt out Trump’s supposed deep state persecutors—is a jarring reminder of how willing Barr was as attorney general to trample legal norms, disregard national security, and even degrade his own reputation for Trump’s sake.

Significantly, the Times’s January 26 story also did something more: It foreshadowed what we can expect from Reps. Jim Jordan (R-Ohio) and Jim Comer (R-Ky.) in the months ahead. Jordan, now chairman of the Judiciary Committee, is also chairing its new subcommittee on the “weaponization of the federal government.” Comer chairs the Oversight Committee, where he will be joined by MAGA extremists Marjorie Taylor Greene (R-Ga.) and Scott Perry (R-Penn.). You can expect all of them to march down much the same path blazed by Barr and Durham.

Recall that in 2019, Barr, at Trump’s urging, launched Durham on a mission to discredit the investigation the FBI had conducted of a Trump/Russia connection during the 2016 election. Today, Jordan, Comer, and their House Republican colleagues aim to discredit the FBI/Department of Justice investigation of Trump and other top January 6th instigators, while disregarding mountains of evidence compelling that investigation to protect democracy.

Barr and Durham’s efforts teach four salutary lessons relevant to the Jordan/Comer brand of “oversight.”

First, the starting point for both initiatives is personal and partisan power for its own sake. In 2018, Barr wanted a second run as attorney general and seized the opportunity when Trump soured on then-AG Jeff Sessions. As the Times described it, Barr “effectively auditioned” to be attorney general “by writing a [June 2018] memo suggesting a way to shield Mr. Trump from scrutiny for obstruction of justice.” Six months later Trump replaced Sessions with Barr.

Similarly today, GOP House members are “investigating the investigators” to show allegiance to Trumpism, hype their MAGA base, divert attention from the January 6th command structure, and raise cash.

Second, lies and half-truths are at the heart of these past and present “investigations of the investigators.”

Barr’s first major service to Trump was to spin and distort the Mueller report in March 2019. Two months later, Barr recruited Connecticut U.S. Attorney Durham to prove, in Barr’s words, that FBI officials had “put their thumb on the scale” of the 2016 election by opening the Trump-Russia investigation.

In fact, Barr and Durham manufactured an investigation to put their thumbs on the scales of history. However, with the sole exception of a non-“earth-shattering” guilty plea for one FBI lawyer’s false affidavit, Durham came up empty after spending $6.5 million. He was reportedly “laughed out of court” by juries in the two peripheral cases he brought to trial.

Ironically, Durham and Barr did receive one serious criminal allegation—just not what they were looking for. Italian intelligence officials shared evidence of Trump’s alleged involvement in financial crime. (The details are not yet known.)

In October 2019, Barr’s DOJ leaked that Durham’s assignment had become a criminal investigation, omitting the critical fact that the alleged criminality was about Trump. The media was misled, wrongly reporting that Durham had found evidence of a crime by the FBI.

Egregiously, two months later, Barr proclaimed on national television that “there were gross abuses . . . that [are] intolerable in the FBI.” Again, no mention of Trump as the possible criminal. Nor has any proof ever emerged to substantiate Barr’s FBI broadside.

Today’s parallel in false accusations is already clear. Jordan’s first House Judiciary Committee letters to the DOJ wrongly allege a pre-midterm election coverup, despite the well-known DOJ practice of avoiding disclosures that could affect upcoming elections.

Third, in service of self-interested missions, partisan investigations bend or break ethical norms.

According to the Times, that happened with Durham in September 2020. His highly regarded lieutenant, federal prosecutor Nora R. Dannehy, learned that Durham had asked certain team members to draft an investigative report for possible pre-election release. Furious that he was planning, behind her back, to break well-established DOJ norms, Dannehy resigned.

Dannehy’s discreet but abrupt departure served as an alarm bell, signaling misconduct to fellow prosecutors and the public. Without her resignation, Durham and Barr, under Trump’s pressure, might have issued a misleading report, altering the 2020 election outcome.

A similar resignation occurred in 2021, after Barr secretly made Durham a special counsel. Durham indicted former Hillary Clinton campaign lawyer Michael Sussmann for an alleged false statement to the FBI. The January 26 Times story reported that prosecutor Anthony Scarpelli quit in protest, having warned Durham that the indictment failed Justice Department standards requiring that the evidence would “probably be sufficient to obtain and sustain a conviction.” In May 2022, a jury validated Scarpelli’s judgment, taking only six hours to acquit Sussmann.

Today’s dubious ethical conduct involves GOP committee investigators like Jordan and Perry, who were themselves involved in events leading up to and including January 6th. They have created the stark appearance of a conflict of interest by personally driving official inquiries about FBI investigations in which they may be witnesses or even subjects. Jordan has already sent the FBI letters seeking information about their ongoing January 6th investigations.

Fourth, partisan campaigns to investigate investigators divert government resources from real needs. The time and money that Barr and Durham spent traveling the world searching for evidence of an imagined conspiracy, and that Durham spent trying non-prosecutable cases, could have been used to pursue actual crimes affecting Americans.

Likewise today, MAGA House leaders’ faux investigations of investigators will distract resources from authentic oversight and legislative efforts to quell domestic terrorism, police misconduct, and crimes of hate.

If Jordan were serious about investigating DOJ misbehavior, he would hold hearings on the activities of Barr and Durham reported on January 26. You can bet the House that is not about to happen.

Frederick Baron and Dennis Aftergut

Frederick Baron formerly served as associate deputy attorney general, special assistant to the attorney general, and director of the Executive Office for National Security in the Department of Justice. Dennis Aftergut is a former assistant U.S. attorney and Supreme Court advocate who writes on national affairs.