The Special Counsel for a Special Counsel
One of the more surreal situations in recent memory was John Durham's appointment to investigate the investigation into Russia's connection with Donald Trump in the 2016 election.
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Justice in Brief
*In the Middle District of Florida, two men were sentenced for conspiring to purchase millions of dollars worth of steal from two men in Ukraine who are pro-Russia oligarchs. Both of the Ukrainian men were sanctioned for their support of Russia.
*In the Southern District of Ohio, an Indian man was sentenced for selling controlled substances through the “dark web.” He opened various vendor sites online and received cryptocurrency in exchange for delivering the controlled substances to places in the United States.
*In the Southern District of Florida, a grand jury indicted a Syrian national and a Lebanese national for conspiring to purchase military-grade weaponry from the United States and deliver it to Sudan and Iraq. This violates the Arms Export Control Act.
Investigating the Investigation: John Durham
In a speech to United States Attorneys in 1941, Attorney General Robert Jackson warned them to not target individuals for prosecution. He warned that targeting people that should be prosecuted rather than cases that should be prosecuted was the prosecutor’s most dangerous power. It leads to prosecuting political opponents not because of what they have done but because they are an opponent. As Jackson said, “It is here that law enforcement becomes personal…”
Yet special counsel, by their nature, focus on particular individuals. If it was merely an event they investigated, seeking to determine who was responsible, there would be little need for a special counsel. The special counsel exists because the Attorney General has a connection with the people investigated. Their identities are known in advance. Consequently, the special counsel targets people.
One special counsel was different, however: John Durham. Who? John Durham ran a unique special counsel investigation. He was tasked with investigating the investigation into the connection between candidate Donald Trump and Russia in the 2016 election. His mission was to investigate the investigators. They did not know who, if anyone, committed criminal acts to initiate the investigation into potential connections between the Trump campaign and Russia. Thus Durham investigated conduct, not individuals.
Durham’s investigation began under a cloud of political controversy. Attorney General Bill Barr initially sent the matter to Durham in the fall of 2019. At the time, Durham was the United States Attorney for Connecticut. Barr sent the matter to Durham in the months following the release of special counsel Robert Mueller’s investigation into connections between the Trump campaign and Russia. One year later, in the weeks before the 2020 presidential election, Barr granted Durham special counsel status. This permitted Durham to file criminal charges in whichever district he believed was proper and made it more difficult for a Democratic president to terminate the investigation.
Though Barr’s decision to investigate the investigation might have been politically motivated (which Barr denies), his selection of Durham was not. Durham had extensive experience acting as a special counsel. As a career federal prosecutor, he had done so for both Democratic and Republican administrations. His career began as a Connecticut state prosecutor, working in the Officer of the Chief State’s Attorney and then in the New Haven State’s Attorney’s Office. After five years he became an Assistant United States Attorney for the District of Connecticut. He handled organized crime and racketeering offenses. In 1989, he became head of the Criminal Division. In 1994, he was promoted to Deputy United States Attorney, where he remained until 2008. Twice during those years, he served as interim United States Attorney.
While serving as Deputy United States Attorney, Durham began handling special investigations. In 2000, he investigated the FBI’s conduct of an organized crime case, discovering documents proving the FBI had framed four people for murder. Eight years later, he examined FBI connections to organized crime in New England. This included several high-profile prosecutions, including a former Connecticut governor.
In 2008, Durham served as the acting attorney for the Eastern District of Virginia, one of the most prestigious offices in the Justice Department. He served until the end of President Obama’s first term. While in that role, Durham led two other high-profile and politically sensitive investigations. In the first, Attorney General Michael Mukasey tasked Durham with investigating the CIA’s destruction of detainee interrogation videos. The next year, Attorney General Eric Holder asked Durham to investigate the legality of the CIA’s use of enhanced interrogation techniques. This included the death of two detainees. In neither instance did Durham recommend charges.
After 2012, Durham returned to Connecticut. In November 2017, President Trump nominated Durham for the United States Attorney post. This was his position when appointed as special counsel. Based on his experience, he was the best choice. He had investigated the FBI and the CIA in the past and was intimately familiar with national security investigations.
According to news reporting, Durham’s purpose was not to conduct a criminal investigation but to review and evaluate the methods used by the FBI to launch the Trump-Russia investigation. During the investigation, Durham initiated three criminal cases. The first resulted from the Justice Department’s Inspector General review of the FBI’s conduct. It learned that one agent misled the FBI and the agent entered a guilty plea. Two others were charged with making false statements to the FBI. Both were found not guilty at trial.
Durham also determined that the FBI acted too quickly in the Trump-Russia investigation. He asserted that the FBI should not have opened a full investigation without further evidence. Instead, they should have limited the matter to a preliminary investigation. The difference lies in the ability of the FBI to collect information; they cannot use certain investigatory techniques in a preliminary investigation. Durham’s conclusion contradicted the Justice Department’s Inspector General who concluded the FBI acted properly. Neither found any FBI rule violations.
The investigation of the investigation displays the shallowness of partisan politics. Anyoen who cared to look deeper than the fact that Bill Barr appointed John Durham to investigate the FBI’s conduct would see that Durham’s conduct was not politically motivated. He had been investigating FBI and CIA operations for more than fifteen years. He worked for both parties.
Yet the question remains whether the special counsel was necessary in this instance. The Justice Department’s Inspector General was already on the job. That office’s responsibility is to investigate Justice components such as the FBI. It is meant to conduct this work independently of the Justice Department. The OIG has done this on numerous occasions in highly sensitive matters.
Once again, we see a special counsel that was not truly necessary. Perhaps Barr was concerned the OIG would not find what Barr believed was present. Perhaps Barr believed there was criminal activity associated with opening the investigation. Perhaps Barr knew the OIG would not find misconduct and Barr wanted someone who would be more critical of the FBI. Regardless of the motive, appointing special counsels, at least in the instances of the investigation of the Mueller investigation and the Hunter Biden matter, seems to occur more for the public relations aspect of the Justice Department and less for the substantive inquiry or to avoid actual conflict of interest.
I hope you enjoyed this issue and that it made you stop and think. I would love to hear any comments, questions, concerns, or criticisms that you have. Leave a comment or send a message! Also, if you enjoyed this or if it challenged your thinking, please subscribe and share with others!