UPDATED: 15 MAY 2023 09:14 PM EST
For four years, Special Counsel John Durham examined the origins of the FBI’s investigation of links between Russian officials and Donald Trump’s 2016 presidential campaign. His final report, which clocks in at more than 300 pages, was released Monday. Here are some takeaways.
Durham on defense
In the report’s introduction, Durham seems to respond to some Republicans’ disappointment that he failed to secure significant criminal convictions related to alleged FBI misconduct in the Trump-Russia probe.
“[N]ot every injustice or transgression amounts to a criminal offense,” he wrote.
Durham brought criminal charges against just three people. He lost both cases that went to trial. In a third case, an ex-FBI lawyer named Kevin Clinesmith pleaded guilty to altering an email that was used to support a surveillance application. Clinesmith was not sentenced to any prison time.
The law “does not always make a person’s bad judgment, even horribly bad judgment, standing alone, a crime,” Durham wrote.
He added that the law doesn’t prohibit “all unseemly or unethical conduct that political campaigns might undertake for tactical advantage” and that prosecutors must prove criminal intent to secure convictions. That last line appears to reference the scores of allegations Republicans have leveled at Hillary Clinton's 2016 campaign and its outside allies.
Durham also seemed to dismiss the idea that the quick acquittals by juries of two of the three defendants his office prosecuted suggested his team’s efforts were misguided. It’s particularly hard to secure convictions in politically sensitive cases, the veteran federal prosecutor wrote.
Durham gone wild
Durham’s report concludes with something unusual for a criminal probe conducted under the Justice Department’s special counsel regulations: a variety of recommendations about how DOJ and the FBI should change the way they do business.
Early on, Durham says he’s not proposing “any wholesale changes” in FBI or DOJ policies. “The answer is not the creation of new rules, but a renewed fidelity to the old,” Durham writes. Yet the report concludes with a 17-page discussion of how politically sensitive investigations should or could be handled differently in the future, including by assigning a career official to challenge FBI surveillance applications in such cases and not leaving important information in footnotes.
The report often sounds more like an inspector general inquiry in search of waste, fraud and abuse that may not rise to the level of criminality. However, it lacks some of the checks often employed in that process, such as an opportunity for individuals and agencies mentioned to offer factual corrections and rebuttals.
Durham’s report also shows that his prosecutors ranged far afield of the core question of whether people involved in initiating or executive the FBI’s Trump-Russia probe should be prosecuted.
In addition to exploring the intelligence community’s handling of the Trump-Russia allegations, he probed the decision-making about largely unrelated allegations of foreign-influence efforts aimed at Clinton.
Durham said he wanted to assess whether Clinton-related and Trump-related allegations were being handled with equal rigor and aggressiveness.
“Comparing the respective investigative activity was significant to the investigation since it could support or undercut allegations of institutional bias against either candidate,” the special prosecutor wrote. However, he acknowledged that because the facts involved in the various allegations differ, comparing them is “undoubtedly an imperfect method” to assess whether such bias existed.
The wide ambit of Durham’s final report may stem from how his inquiry began in 2019: as a broad review of the origins of the Trump-Russia investigation. At the outset, Attorney General Bill Barr seemed to have tapped Durham for a re-review of DOJ Inspector General Michael Horowitz’s decision not to declare that political bias infected early judgments and errors in what would eventually become the Robert Mueller probe.
But, within months, Durham’s work morphed into a criminal inquiry. Its hybrid status as both a criminal investigation and a kind of after-action report continued to the end.
Fallout for a key surveillance authority
Lurking in the report and the FBI’s response to it is a key fear for law enforcement and the intelligence community: that Durham’s withering conclusions about the bureau’s handling of the Trump-Russia probe will prompt Congress to kill off a key surveillance authority when it expires in December.
Durham does not mention the so-called Section 702 authority explicitly, but he does say he is not recommending anything “that would curtail the scope of reach of FISA or the FBI’s investigative activities … in a time of aggressive and hostile terrorist groups and foreign powers.”
Applications to surveil former Trump campaign foreign policy adviser Carter Page, including two which the Justice Department has conceded were inaccurate because a key source disavowed comments included in them, were not issued under 702. But broad suspicion on the part of Republicans about politicization of the FBI’s intelligence work has put the renewal of that authority in doubt and prompted many GOP lawmakers to call for reforms that go well beyond the expiring provision.
The FBI’s response to the Durham report said the bureau shares those concerns and stressed in a footnote that the FBI is under new management. “All senior executives overseeing the Crossfire Hurricane investigation have left the FBI as the result of termination, resignation or retirement,” FBI General Counsel Jason Jones wrote, using the codename for the Trump-Russia probe.
Who played ball with Durham – and who didn’t
Durham’s mission has been politically fraught from the outset, with many Democrats and current and former intelligence-agency professionals deeply skeptical of his inquiry. Some publicly questioned his skill-set to assess judgments made by intelligence officials about the intentions of Russians and other foreign governments.
One measure of the perceived credibility of Durham’s probe is the roster of individuals who chose to cooperate with his investigation and those who gave him the cold shoulder.
Durham’s team interviewed former CIA Director John Brennan in August 2020, Clinton campaign foreign policy adviser and Biden national security adviser Jake Sullivan in November 2021, Clinton campaign chair John Podesta in January 2022, and Clinton herself in May 2022, the report shows.
Among those who turned Durham down: former FBI Director James Comey; former Deputy FBI Director Andrew McCabe; a senior FBI agent for national security matters, William Priestap; private investigator Glenn Simpson; internet executive Rodney Joffe; and Clinton campaign lawyer Marc Elias (though Elias did testify as a witness for Durham during the trial of Michael Sussmann). Peter Strzok, a senior FBI agent suing over his firing by the bureau, agreed to discuss one aspect of the Trump-Russia probe but declined a broader interview.
An emotional FBI agent
The report describes a dramatic moment in one of Durham’s interviews. During the 2016 campaign, the U.S. intelligence community learned of Russian intelligence analysis alleging that Clinton’s team planned to stir up scandal about Trump’s Russia ties to distract the public from her email server problems.
The unverified Russian claim has been previously disclosed, and Democrats have derided it as incendiary disinformation from a foreign adversary that was seeking to meddle in the election. In 2016, then-CIA Director John Brennan briefed then-President Barack Obama on it. However, according to Durham, most of the Crossfire Hurricane personnel he discussed it with hadn’t seen it, including the probe’s original supervisory special agent.
After reviewing the Russian intelligence with Durham’s team, the agent “became visibly upset and emotional, left the interview room with his counsel, and subsequently returned to state emphatically that he had never been apprised” of it, according to the report. The agent “expressed a sense of betrayal that no one had informed him of the intelligence.” He added that, regardless of its veracity, someone should have told him about it.
James Baker, the FBI’s former general counsel, also said he first learned of the intelligence from Durham’s team. He said that if he had known about it during the probe, he would have been much more skeptical about Christopher Steele’s reports and about allegations of a secret channel between the Trump Organization and a Russian bank. Durham said other FBI agents would also have been more skeptical about Trump/Russia allegations had they seen the intelligence, which would have “reduced the risk of reputational damage both to the targets of the investigation as well as, ultimately, to the FBI.”
Durham’s team asked Clinton herself about this intelligence. She called it “really sad.” “I get it, you have to go down every rabbit hole,” she added, saying it looked like Russian disinformation. The top Democrat on the Senate Intelligence Committee, Sen. Mark Warner (D-Va.) later called it “unverified Russian rumint,” or rumor intelligence. Durham stressed that his team also hadn’t verified it.
Kyle Cheney contributed to this report.
