Jack Goldsmith and Daniel Sobel have taken to time to look into what we know about the Durham “investigation of the investigation” at the moment. It appears that for all of Barr’s hand-wringing about political interference in presidential campaigns he may be preparing to throw this hot potato into the mix just before the election in the fall. So much for his great concern about the DOJ being a partisan tool:
In May 2019, Attorney General William Barr tapped Connecticut’s U.S. Attorney John Durham to look into issues related to the origins of the FBI’s Trump-Russia investigation. Durham is a longtime federal prosecutor in Connecticut known for leading organized crime and public corruption cases. In 2008, Attorney General Michael Mukaseytasked Durham with investigating the CIA’s destruction of interrogation videotapes. A year later, Attorney General Eric Holder expanded Durham’s mandate to examine CIA torture allegations.
Now, Durham is conducting a comprehensive global probe of the U.S. government’s investigation of the Trump Campaign’s connections with Russia. The investigation covers pre- and post-election matters, and reportedly has come to include the unmasking of former national security adviser Michael Flynn, and the basis for the intelligence community’s assessment that Russia tried to help Donald Trump win the election in 2016. These are all matters on which President Trump has publicly commented. Before and after Durham began his investigation, Trump has often claimed, in fiery rhetoric, that the Trump campaign investigation, and the unmasking of Flynn, and the intelligence community’s assessment, were illegitimate. He has also charged that some of the people apparently under investigation by Durham engaged in misconduct on matters under investigation. Attorney General Barr has also publicly commented that some of the people under investigation engaged in serious wrongdoing.
The fruits of the Durham investigation will reportedly be disclosed later this summer, or in the fall. This post does a deep dive into what has been publicly reported about the Durham investigation, and then offers analysis. We include Barr’s commentary on the investigation, but not the president’s. The bottom line is that (1) the probe as it developed is not one that should have been conducted by a federal prosecutor conducting a criminal investigation, and (2) Barr’s tendentious running commentary on the investigation violates Justice Department rules, politicized the investigation and damaged the credibility of whatever Durham uncovers. (The post is long. If you want to skip the lengthy factual recitation and jump to the analysis, click here.)
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There were good reasons for a comprehensive inquiry into the criminal and counterintelligence investigations of the Trump campaign and the president himself. The investigation was unprecedented and controversial, even if justified. We know from Horowitz’s review that the investigators made many mistakes and that the standing Justice Department guidance on such matters was (according to Horowitz) imprecise, underdeveloped and procedurally inadequate. A comprehensive review was warranted not only for the American public to know what happened, but also as a basis for intelligent reform of FBI and DOJ investigative processes going forward.
To say that a comprehensive investigation was warranted is not to say that the Barr/Durham investigation, as it has developed, was the right one, or has been conducted well. (Goldsmith early on took a hopeful view of the investigation that, for reasons explained below, has not been borne out by events.) Two large problems stand out from the lengthy recitation of reported facts recounted above.
1. Durham’s Competence
Durham is a seasoned and undoubtedly competent federal prosecutor who entered this investigation with bipartisan credibility. He has an unusually rich understanding of the intelligence community from his days investigating the CIA tapes destruction and elements of the CIA black site and interrogation program. And there are precedents for reviews of the type Durham initially undertook—for example, federal prosecutor Randy Bellows’ review of the mishandling of the Wen Ho Lee case. But fifteen months after Durham was appointed, it has become clear that he was not the right man for the investigation that developed.
Durham’s review began as an effort to understand what happened in the genesis and conduct of the Trump campaign investigation. There was no inkling at the outset that crimes had been committed; Durham’s initial probe was a “review” to gather and assess facts. This function could and perhaps should have been done by a congressional committee. In April 2020, the Senate Intelligence Committee issued a bipartisan report that found that the intelligence community’s assessment of “unprecedented Russian interference in the 2016 presidential election” was “coherent and well-constructed” and that “the Committee heard consistently that analysts were under no politically motivated pressure to reach specific conclusions.” This approach to the broader questions related to the Russia campaign investigation would have yielded more credible conclusions than Durham possibly could.
A more comprehensive investigation also would have been an appropriate task—at the core of their expertise and competence—for inspectors general. Inspectors general across the government could have reviewed and assessed Crossfire Hurricane, as Horowitz did for a slice of it. There is a precedent for this. Six inspectors general worked together to produce a government-wide assessment of the Bush administration’s Stellar Wind collection program. If the input of foreign governments became necessary, as Durham and Barr believed it did, that could have been arranged by the State Department or by the agency whose liaison agency’s information is sought (for example, by the director of national intelligence if information from foreign intelligence services is needed). And if evidence of crimes arose in such an investigation, it could have been referred to a prosecutor—again, as happened with Horowitz’s investigation.
An investigation by a prosecutor is especially inappropriate for what appears to be one large focus of Durham’s investigation: the nature and validity of the intelligence assessment that the Russian intervention in the 2016 election sought to aid Trump rather than merely sow confusion. Durham has experience examining the intelligence community. But he is neither personally nor institutionally expert in intelligence assessments or the intelligence assessment process, and a prosecutorial focus is not the right one to understand or second-guess the basis for the assessment. As former intelligence officials Robert Litt and John McLaughlin wrote in the Washington Post, “[i]f analysts fear they may come under criminal investigation for judgments the president does not like, our nation will be less safe.”
One weakness with the inspector general approach is that former employees can cooperate voluntarily but cannot typically be coerced through legal process into cooperation. This is one reason a congressional process would have been better in theory to develop a “what happened” narrative and a list of “lessons learned.” But while this is a limitation in the inspector general approach, it does not justify a criminal prosecutor, in what is now a criminal investigation, poring over every decision, document, communication and the like that had any relationship to the Trump campaign investigation, the intelligence community’s assessment of Russian motives and the controversies related to the presidential transition.
To be sure, we do not know the scope of Durham’s criminal investigation or whether and how he is using coercive prosecutorial tools. The reporting suggests that the criminal side of the probe has been quiet. It remains unclear whether a grand jury has been convened or, if so, how it has been used. But as recently as May, Barr spoke about the department’s “concern over criminality” in connection with matters that Durham was investigating. Having a prosecutor under the rubric of a criminal investigation diving so deeply into these events for an ex post assessment is a menacing and invariably distorting approach.
It is also an approach that is not designed to produce legitimate outcomes. There are obvious dangers in one administration using the prosecutorial process to examine a counterintelligence and related investigation conducted by a prior administration. Those dangers were exacerbated enormously by the fact that the investigation from the outset focused on individuals and processes that the president had virulently and repeatedly criticized and insisted had engaged in criminal behavior. Durham began this process as a credible figure, even if one not fully qualified for the task as it developed. But his investigation was burdened at the outset with the appearance of using law enforcement tools to carry the president’s water and harass his enemies. And it grew much more heavily politicized due to the actions of the attorney general.
2. Barr’s Role
No contemporary attorney general has, like Barr in the Durham investigation, offered such extended, opinionated, factually unsupported and damning public commentary, naming names and drawing conclusions, about an ongoing investigation that is at least in part a criminal investigation.
Barr’s commentary on the Durham investigation violates several Justice Department rules and norms. The department’s media contactspolicy, which applies to “all DOJ personnel,” prohibits “respon[ses] to questions about the existence of an ongoing investigation or comment[s] on its nature or progress before charges are publicly filed.” None of the exceptions, such as for public safety, apply to the Durham investigation. Departmentregulations also prohibit information disclosure “relating to the circumstances of an … investigation [that] would be highly prejudicial or where the release thereof would serve no law enforcement function, such information should not be made public.” It is hard to see the law enforcement function of Barr’s public commentary.
Barr knows all this. He knows what he is doing is contrary to the rules and traditions of the Justice Department. He knows he is doing reputational harm to people nominally under investigation. He must know that the way he is comporting himself does damage to the department and will make whatever Durham finds more contestable than it otherwise would have been. In short, Barr has acted in ways that foreseeably politicize and damage the investigation that he initiated and has devoted so much time to. The question is: Why?
One possibility is that the evidence Durham has uncovered is objectively so damning that Barr’s commentary cannot delegitimize it. Perhaps, but we doubt it. No matter what problems Durham finds, assuming he finds some, they will be tainted due to the combined behavior of the president (who might not know better and who cannot control himself) and the attorney general (who does know better and can control himself but has chosen not to). If Barr and Durham have an October (or earlier) surprise, Barr’s actions now are diminishing its impact.
Another possibility is that Barr’s judgment is distorted by zeal. He has made clear that he thinks the people who investigated the Trump campaign and transition team were engaged in illegitimate efforts to reverse the outcome of the election. Perhaps he thinks that what happened was so bad, and that the department’s rules and processes were so abused, that he is justified in publicly damning and injuring the participants no matter what. Two wrongs make a right, perhaps, or the ends justify the means. Again, this logic makes little sense, for Barr is only hurting the case he is trying to build. And, if Trump loses in November, Barr is acting in ways that will invite an investigation of the Barr/Durham investigation of the Trump campaign investigation.
A third possibility is that Barr is an out and out partisan hack—a Sean Hannity equivalent operating from the Fifth Floor of the Justice Department to try to fire up the president’s base or give the president other short-term political advantages. This widely held view is difficult to square with Barr’s reputation for probity and establishment credentials, and with his recent description of the prosecution of Trump friend Roger Stone as “righteous,” but it is consistent with other aspects of his behavior and the Department’s (for example, the announcement of the Bash probe of the Flynn unmasking on the Hannity show).
When Durham announces the results of his investigation we will surely have a better sense about which (or which combination) of these three possibilities, or another one, is correct.
I’m pretty sure it’s a combination of Fox News brainrot, unitary executive zeal and partisan hackishness, mostly the latter. He is the most openly political AG in history and that’s saying something. (John Mitchell actually went to jail for this kind of thing but we lived in a different world then.)
The background detail at the link is fascinating if you are interested in going into the weeds on this issue. It’s stunning to think that they actually decided to open a criminal investigation. But of course, that’s what Trump wanted and Barr was clearly eager to deliver it for him.