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The Humiliation of John Durham

Hired by Bill Barr to investigate the Trump investigators, the prosecutor had little to show for his work even before his defeat in court yesterday.
June 1, 2022
The Humiliation of John Durham
John Durham, William Barr, and Donald Trump. (Durham photo via DOJ; Barr and Trump photo by Alex Wong / Getty)

John Durham, the special counsel appointed days before the 2020 election by Donald Trump’s attorney general William Barr, just lost the only trial he has brought to date in his long tenure. A Washington jury took only about six hours yesterday to acquit lawyer Michael Sussmann of making a false statement to the FBI.

Durham’s loss was one more egg laid in the fetid henhouse where Barr first enlisted Durham to nest in May 2019, tasking him with proving the truth of a lie—Donald Trump’s favorite disinformation campaign at the time, that the FBI’s 2016 Trump-Russia investigation was a “witch hunt.” In October 2020, seventeen months after that initial assignment, Barr made Durham a special counsel—which meant that, no matter the outcome of the 2020 election, Durham’s investigation would continue, since special counsels are virtually unremovable. And so it has been: More than sixteen months into the Biden administration, the DOJ remains saddled with Durham.

The moment he let Barr recruit him, Durham, a former U.S. attorney in Connecticut, risked ruining his once-strong professional reputation. That reputation is now in tatters. Durham first knifed it in December 2019, when he joined Barr in an unprecedented attack on the department’s own nonpartisan inspector general. The IG had just issued a 478-page report concluding that the Trump-Russia investigation began properly. Barr and Durham’s actions were widely criticized as inappropriate. William Webster, the revered former Republican director of the FBI and CIA, lambasted Barr’s conduct, saying it risked “inflicting enduring damage” on the FBI. Durham should have known better than to be used in that attack.

Then, in September 2020, Nora Dannehy, Durham’s respected and loyal aide, resigned from his team. She expressed concern about, in the words of the Hartford Courant, “pressure from Barr . . . to produce results before the election.”

Durham could have departed then, too, and saved himself further embarrassment. After all, the month before, Durham had obtained his one and only conviction, a guilty plea from then-FBI lawyer Kevin Clinesmith for lying to investigators in June 2017.

Still, a low-level FBI agent’s lie, nearly a year after the Trump-Russia investigation began, did nothing to prove that the FBI had launched the investigation illegitimately.

Fast-forward to September 16, 2021, when Durham indicted Sussmann, days before the five-year statute of limitations ran out. As some commentators noted, the indictment reeked of non-prosecutorial goals: It seemed that Durham was trying to justify the public money he’d wasted boosting Trump’s false narrative that it was the big, bad Clinton campaign behind the Trump-Russia investigation.

The supposed lie for which Durham indicted Sussmann occurred in mid-September 2016—again, after the Trump-Russia investigation started on July 31. Sussmann went to a friend in the FBI—the bureau’s general counsel, James Baker—with a tip, allegedly saying that he was not offering the information “on behalf of any client.”

The tip was that a secret communication channel appeared to exist between the Trump Organization and a server of Russia’s Alfa Bank. (Whether such a back channel actually existed is in doubt, though it has never been definitively disproven.) In charging Sussmann under 18 U.S.C. §1001, Durham’s team alleged that Sussmann lied to Baker—not about the substance of the tip but because Sussmann was working for the Clinton campaign.

He was. But as Sussmann’s lawyer argued, “There is a difference between having a client, and doing something on their behalf.”

Per Sussmann’s defense, he approached the FBI purely at his own behest to help keep Baker and the FBI from being caught unawares when the story imminently appeared in the press.

It’s tough to disprove a private motivation. To do so “beyond a reasonable doubt,” you’d better have airtight evidence.

Durham didn’t.

In fact, Baker, the prosecution’s own witness, bolstered the defense. He testified that Sussmann helped him identify the reporter working on the Alfa Bank story so that the FBI could try to stop it. (Premature publicity jeopardizes investigations.)

Baker’s testimony created reasonable doubt when combined with testimony from Robby Mook, the former Clinton campaign manager, and from Marc Elias, Sussmann’s then-supervisor on the matter at their law firm.

Mook testified that Sussmann going to Baker contradicted the campaign’s goal: FBI involvement was undesirable because it could delay a news story that the Clinton campaign would have wanted published. Elias testified that he never authorized Sussmann to contact the FBI.

What’s more, the prosecution had Sussmann’s client-billing sheets. While he charged the Clinton campaign for “work on confidential project” the day he spoke to Baker, the billing entry did not mention the FBI. Previously, Sussmann had specifically billed other clients in other matters for “meeting with FBI” when he did so on their behalf.

Reasonable doubt screamed out.

From the start, Durham should have seen that such gaps in his own evidence made declination the better part of valor. As Sussmann’s lawyers said after his acquittal yesterday, Sussmann “should never have been charged in the first place. This is a case of extraordinary prosecutorial overreach.” Prosecutors know the danger of bringing weak §1001 indictments—deterring individuals from offering tips for fear of being prosecuted for lying if something turns out to be mistaken.

Prosecutors, that is, with no political ax to grind.

Shoddy decisions and the paucity of results characterize Durham’s whole tenure. Yet there are no signs that he intends to close up shop anytime soon. In fact, he has yet another case pending. Last November, Durham’s office indicted Igor Danchenko, an individual who contributed to the Steele Dossier, and particularly the infamous rumor of a Trump “pee tape.” Danchenko’s trial is scheduled to get underway this fall.

In Danchenko’s case, as in Sussmann’s, the indictment is not for any wrongdoing related to the origins of the Trump-Russia investigation. Rather, it’s another case of a prosecution on §1001 charges of subsequently lying to investigators.

Maybe Durham will obtain a conviction in Danchenko’s case, and maybe that will give him a face-saving opportunity to pack up and skip town. But everything Durham has done to date has proved not the bang he was brought in to sound but rather a sad, inglorious whimper.

Dennis Aftergut

Dennis Aftergut, a former assistant U.S. attorney and former Supreme Court advocate, is currently of counsel to Lawyers Defending American Democracy.