The Durham Report: New Addition to Trump’s Library of Lies

This post first appeared at Common Dreams on May 19, 2023.

Rep. Jim Jordan (R-OH) wants special counsel John Durham to testify in his “weaponization” hearings. Created as part of a dark deal that Rep. Kevin McCarthy (R-CA) made with far-right Republican extremists to secure his speakership, Jordan’s new subcommittee claims to be investigating “the politicization of the FBI and the Department of Justice” against Republicans.

So far, Jordan’s subcommittee has found nothing. Durham didn’t find anything either, but he spun his report with useful GOP soundbites that are sufficient to achieve Republican objectives: 

Muddy the scene. Arouse the mob. And accuse adversaries of your own nefarious deeds. Then exploit the resulting confusion and chaos.

In fact, John Durham is now a case study in the GOP’s weaponization of the Justice Department.

Trump Mastered “Weaponization”

Any genuine “weaponization” probe would have started with former President Donald Trump and his attorney general, William Barr.

  • From the beginning of his presidency, Trump urged then-FBI director James Comey to end the investigation of Trump’s ties to Russia. Comey refused and Trump fired him.
  • Trump then urged his first attorney general, Jeff Sessions, to kill the investigation. Instead, Sessions recused himself. Trump was incensed and eventually Sessions lost his job too. “Where’s my Roy Cohn?” Trump fumed, referring to his notorious personal lawyer and fixer. In the 1950’s, Cohn had been Sen. Joseph McCarthy’s (R-WI) hatchet man during the “Red Scare” investigation into communist activity – one of the darkest chapters in American political history.
  • After firing Sessions, Trump turned to the manifestly unqualified Matthew Whitaker, who had publicly criticized special counsel Robert Mueller’s investigation.
  • Amid mounting bipartisan criticism of Whitaker, Trump turned to Barr. Six months earlier, Barr had sent Deputy Attorney General Rod Rosenstein – Mueller’s boss – an unsolicited memo arguing that Mueller should shut down his obstruction of justice probe.

Trump had found his Roy Cohn.

“Weaponization” Rises to a New Level

In March 2019, Barr had been on the job for only two months when Mueller gave him – but not the public – his 448-page report. It proved that:

  • Russia wanted Trump to win the 2016 election;
  • Trump embraced Russia’s assistance; and
  • Trump obstructed the subsequent investigation into his campaign ties to Russia.

Mueller secured convictions against Trump’s top campaign advisers, and he expressly refused to exonerate Trump personally. But notwithstanding powerful evidence proving Trump’s obstruction, Mueller believed that he could not indict a sitting president.

Immediately, Barr issued a deceptive “summary” of Mueller’s report that kneecapped the actual findings. Relying on Barr’s summary, Trump then tweeted one of the more than 30,000 lies spewed during his presidency:

“No Collusion. No Obstruction. Complete and Total EXONERATION!”

Barr’s summary drew an immediate, albeit private, rebuke from Mueller himself because it created “public confusion about critical aspects of the results of our investigation.” Barr wasn’t confused. He knew exactly what he was doing. And no one could challenge Trump’s or Barr’s lies because Barr didn’t release Mueller’s report to the public for another three weeks.

A year later, a federal judge blasted Barr’s pre-release “distortions” and “lack of candor.” The court questioned “whether Attorney General Barr’s intent was to create a one-sided narrative about the Mueller Report — a narrative that is clearly in some respects substantively at odds” with it. Barr made “a calculated attempt to influence public discourse about the Mueller Report in favor of President Trump despite certain findings… to the contrary.”

After-the-fact judicial condemnation didn’t matter to Barr. He had weaponized Trump’s false mantra that the FBI’s Russia investigation had been a “hoax” and that Mueller had “exonerated” him.

Durham Became Barr’s Henchman

Barr didn’t stop at confusing the public about Mueller’s damning conclusions. He appointed federal prosecutor John Durham to search for evidence supporting Trump’s key talking point: The FBI was out to get him and had no basis for starting the Russia investigation.

Barr took a personal interest in the assignment. In the fall of 2019, he and Durham traveled to Italy and asked officials for evidence that might discredit the Justice Department’s Trump-Russia investigation. Italian officials had nothing to help them, but they did offer a tip: Trump was engaged in suspicious financial activity.

Uh-oh. The Italian tip required a criminal investigation. But rather than assign the matter to another prosecutor, Barr added it to Durham’s plate. Notably, Durham’s final report doesn’t mention the tip or what became of it.

Meanwhile, Durham’s search for FBI abuses or institutional animus toward Trump reached a dead end. So he changed course and tried to blame the Clinton campaign for promoting the suspicious Russia links surrounding Trump.

Durham’s revised mission failed too. His final report acknowledges that, after Wikileaks published hacked Democratic emails, the FBI opened its investigation based on information from an Australian diplomat. The diplomat said that a Trump campaign aide told him that Russia had damaging material on Clinton. At that point, even Durham admits, there was “no question that the FBI had an affirmative obligation to closely examine” the Trump-Russia connection.

But Durham believes that the FBI should have started with a “preliminary investigation” before moving to a “full investigation.” That’s not exactly the blockbuster that Trump and his allies had wanted him to find.

Durham Leaves a Legacy of Professional Disgrace

Durham’s final report is an effort to justify the time (four years) and money (more than $6.5 million) wasted on his probe.

  • About half of Durham’s report discusses problems with the infamous Steele dossier. But contrary to his suggestion, the dossier didn’t “trigger” the Trump-Russia investigation. The Australian diplomat’s tip did. The dossier didn’t reach the FBI’s Trump-Russia investigators until the probe had already been underway for six weeks.
  • Durham admits that comparing the FBI’s investigation of Trump with those of Hillary Clinton and the Clinton Foundation is not an “apples-to-apples” task. But then he does it anyway.
  • Venturing far beyond the scope of his assignment, knowledge, training or experience, Durham speculates that “confirmation bias” may have influenced the investigative process in a way that disfavored Trump.

Durham charged no high-level FBI or intelligence official with a crime. He has only three prosecutions to show for his pursuit of the Trump/Barr agenda.

  • The first was a negotiated plea deal involving a doctored email that Department of Justice Inspector General Michael Horowitz had flagged in his 2019 report on the FBI’s Russia probe. But the underlying offense had no impact on the key conclusion: The FBI’s Trump-Russia investigation was not politically motivated.
  • Durham’s other two cases involved allegedly false statements to the FBI. At trial, he lost both cases, but large sections of the final report rehash evidence and arguments that failed to persuade those juries.

Several attorneys on Durham’s team tried unsuccessfully to protect him from his misguided deference to Trump and Barr. His deputy, as well as a prosecutor, resigned in protest.

But as Durham lost trials and the respect of colleagues, he won a new friend:

“While attorneys general overseeing politically sensitive inquiries tend to keep their distance from the investigators, Mr. Durham visited Mr. Barr in his office for at times weekly updates and consultations about his day-to-day work,” the Times wrote. “They also sometimes dined and sipped Scotch together….”

Former acting Solicitor General Neal Katyal, who drafted the special counsel regulations that should have governed Barr’s and Durham’s conduct, observed:

“The special counsel is supposed to be someone who cannot be reasonably accused of laundering an attorney general’s dirty work… Indeed, no one involved in developing these regulations thought that a prosecutor who has regular Scotch-sipping sessions with the attorney general would ever be remotely fit for the job.”

Durham’s report doesn’t undermine any of Mueller’s conclusions. Nor does it conflict with DOJ Inspector General Horowitz’s conclusion that Trump was not the victim of a “deep state” conspiracy against him.

Rehashing criticisms of certain investigative procedures that the Justice Department and FBI Director Christopher Wray corrected years ago, the report “does not recommend any wholesale changes in the guidelines and policies that the [Justice] Department and the FBI now have in place to ensure proper conduct and accountability in how counterintelligence activities are carried out.” The report’s only substantive recommendation is that the FBI create a new position to help ensure the integrity of politically sensitive investigations.

But none of these facts will prevent Durham’s report from becoming a worthy addition to Trump’s rhetorical library of lies. And when Durham appears before Jordan’s subcommittee, watch Republicans lift phrases from the report, ignore context, and weaponize it.

On second thought, don’t watch any of it.

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