Special Counsel Durham’s Protect-The-Establishment Approach Is Destroying The Country

Margot ClevelandSeptember 26, 2022

Special Counsel John Durham continues to ignore the FBI’s malfeasance in the Crossfire Hurricane targeting of Donald Trump, a Friday court filing by prosecutors in the criminal case against Igor Danchenko confirms. While that approach may have been prudent and in the country’s best interests three and a half years ago, when then-Attorney General Bill Barr tasked Durham to investigate the origins of the Russia collusion hoax, it is no longer judicious.

The special counsel’s failure to appreciate this reality threatens the government’s case against Danchenko, but more significantly has spurred the Biden administration, the D.C. deep state, and partisan state officials to further weaponize the criminal justice system against their political enemies.

Since May of 2019, when the public first learned that Barr had tasked Durham — who at the time was the U.S. attorney for Connecticut — to investigate the origins of Crossfire Hurricane, there have been only three criminal prosecutions. In August of 2020, Durham obtained a conviction of former FBI lawyer Kevin Clinesmith, after Clinesmith pleaded guilty to making a false statement to the government. Clinesmith’s crime consisted of him altering an email about former Trump campaign adviser Carter Page to falsely indicate Page had not served as a source for the CIA. For his offense, Clinesmith received a sentence of 12 months of probation and 400 hours of community service.

In September of 2021, Durham, who by then had been appointed a special prosecutor, initiated a second prosecution when he indicted former Clinton campaign attorney Michael Sussmann with one count of lying to former FBI General Counsel James Baker. That indictment alleged that Sussmann lied when he provided Baker with data and three “white papers” purporting to establish a secret communication channel between the Trump organization and the Russia-based Alfa Bank, telling the former FBI general counsel that he was sharing the information on his own, when, in fact, according to the indictment, Sussmann represented the Clinton campaign and tech executive Rodney Joffe. A D.C. jury acquitted Sussmann in May of 2022.

Next month, the third criminal case related to the Russia collusion hoax goes to trial in a federal court in Virginia when Durham seeks to convict Russian-national Danchenko on five counts of lying to the FBI. The special counsel charged Danchenko late last year with lying to the FBI concerning his role as Christopher Steele’s primary sub-source. Earlier this month, Danchenko asked the court to dismiss the charges against him, claiming his supposed lies to the FBI were not “material” to the government’s investigation. “Crossfire Hurricane agents never intended to drop their investigation of Donald Trump, and therefore any lies he told the FBI did not affect their decision-making,” Danchenko argued in his motion to dismiss.

As I explained at the time, Danchenko’s argument is wrong as a matter of law because for a lie to be “material,” “the falsehood need not actually influence the agency’s decision-making process, but merely needs to be ‘capable’ of doing so. Thus, legally speaking, that the Crossfire Hurricane team, and later Special Counsel Robert Mueller’s office, seemed unconcerned with what Danchenko said … is irrelevant. The question is whether the lie was capable of influencing how a hypothetically ‘objective’ government official would have acted had they known the truth.”

The reality remains, however, that the jurors will be unlikely to believe the government’s argument that Danchenko’s alleged falsehoods “were capable of influencing several decisions of the FBI agents,” unless Durham “tells the jury that Danchenko’s alleged lies did not actually influence the government’s investigation because the agents were out to get Trump.” But additional pre-trial court filings from the last 10 days indicate the special counsel’s office has no intention of taking that tack, and will instead argue to the jury “the fact that the FBI apparently did not identify or address” inconsistencies in Danchenko’s stories or follow up with his contradiction of the Steele dossier.

This approach seems destined to fail, doubly so given the recent revelation that the FBI made Danchenko a paid confidential human source (CHS) in March 2017 — a designation Danchenko held until October of 2020. The FBI cleared Danchenko as a CHS even though he had been a subject of an FBI counterintelligence investigation from 2009 to 2011, based on claims that he had “engaged two fellow employees about whether one of the employees might be willing or able in the future to provide classified information in exchange for money.”

That the FBI hired Danchenko as a CHS for years will further bolster Danchenko’s forthcoming argument to the jury that his supposed lies could not possibly have been material to the government, especially since neither the FBI nor Special Counsel Robert Mueller believed Danchenko had committed a crime.

Why then does Durham appear poised to refuse to reveal to the jury the real reason his predecessors ignored Danchenko’s apparent lies? Why also is Durham’s case against Danchenko only the third criminal case from his multi-year investigation, when evidence suggests several other players, either within the government or working with the government, engaged in potentially criminal activity? For that matter, why did Barr refuse to prosecute former FBI Deputy Director Andrew McCabe for allegedly lying to investigators when he claimed he had not authorized a media leak about an investigation into the Clinton Foundation?

A Once-Defensible Mindset

While some critics on the right frame Barr and Durham’s failure to prosecute more broadly as proof that their goal has always been to protect the establishment and cover up wrongdoing, an honest assessment of the former attorney general’s words and conduct suggests a different answer — one that was reasonable and prudent at the time but can no longer be justified.

“I love the Department of Justice, I love the FBI, I think it’s important that we not, in this period of intense partisan feeling, destroy our institutions,” Barr said in explaining why he did not regret serving as Trump’s AG. “From my perspective,” Barr added, “the idea of resisting a democratically elected president and basically throwing everything at him and, you know, really changing the norms on the grounds that we have to stop this president, that is where the shredding of our norms and our institutions is occurring.” So, seeing that our “country was headed toward a constitutional crisis,” and that the Russiagate narrative was “being used to cripple his administration and drive him from office,” Barr accepted the position, believing the president “needed an attorney general who could stabilize the situation.”

Barr rightly noted in explaining his decision to probe the Crossfire Hurricane and Mueller investigations that foreign interference in our elections is bad, but stressed that “it’s just as dangerous to the continuation of self-government and our republican system … that we not allow government power, law enforcement, or intelligence power to … intrude into politics, and affect elections.”

“The use of foreign intelligence capabilities and counterintelligence capabilities against an American political campaign,” Barr added, “is unprecedented and it’s a serious red line that’s been crossed.”

As AG, Barr faced the constant wrath of the corrupt media and congressional Democrats, who falsely portrayed him as Trump’s patsy. When Mueller failed to redact the Special Counsel report as promised, Barr issued a letter summarizing the conclusions and then ignored the firestorm that ensued, accusing him of misleading Americans about Mueller’s findings. And when Mueller inexplicably refused to reach a decision on whether obstruction charges against Trump were appropriate, Barr declared prosecution would not be appropriate. Barr later called “Mueller’s stewardship of the investigation … outrageous,” and Mueller’s hiring of “a lot of partisan Democrats, headhunters” inexcusable.

Barr also directed outside U.S. attorneys to investigate the prosecution of Michael Flynn and directed the dismissal of the criminal case against Trump’s former national security adviser. Barr also intervened when a rogue U.S. attorney’s office recommended an excessive sentence for Roger Stone. And then, of course, Barr’s tasking of Durham to investigate Crossfire Hurricane and the Mueller investigation and his later stealth appointment of Durham to continue the investigation under the protection of a special counsel designation speak not of a man desiring a cover-up to protect the establishment.

Barr’s goal instead appeared to be to return the DOJ and FBI to their proper role, where everything is “about the law, and the facts and the substance,” and “to make sure that government power is not abused and that the right of Americans are not transgressed by abusive government power.” But Barr also considered the “pathology of our age” to be the belief that “simply because circumstances suggest wrongdoing, some set of people should go to prison for a crime.” “Not all censurable conduct is criminal,” Barr stressed in his memoir, adding that “the current tendency to conflate the foolish with the legally culpable causes more harm than good.”

As AG, Barr also made clear that he would not take creative license with the federal criminal code “to gin up allegations of criminality by one’s political opponents based on the flimsiest of legal theories.” Using the criminal justice system for partisan political ends “is not a good development” and “is not good for our political life. And “the only way to stop this vicious cycle, the only way to break away from a dual system of justice, is to make sure that we scrupulously apply the single and proper standard of justice for everybody,” Barr stressed, promising justice “will not be a tit-for-tat exercise.”

This perspective explains the dearth of criminal cases resulting from the Russia collusion hoax before Barr resigned. And given that Barr personally tapped Durham to oversee the investigation into the Crossfire Hurricane and Mueller probes, Durham presumably shares his former boss’s views. But a prudent exercise of prosecutorial discretion does not equate to a cover-up of misconduct, and Durham’s speaking indictments in the Sussmann and Danchenko cases establish that the special counsel will expose the malfeasance of the DOJ and FBI and their complicity with the Clinton campaign and other politically motivated actors.

The Sussmann trial likewise exposed many significant details related to the Russia collusion hoax, and the upcoming Danchenko trial seems sure to as well, especially with the special counsel revealing on Friday that Danchenko’s handler will testify. The breadth of DOJ, FBI, and intelligence agencies’ malfeasance, however, extends much beyond these cases and the earlier Clinesmith guilty plea, indicating the special counsel’s office always intended to issue a final report censuring those responsible for the abuse of government power and the political targeting of Trump and others connected to him.

But Barr and Durham’s high-minded approach to prosecutorial discretion did not stop the vicious cycle. On the contrary, the tepid approach to prosecuting those who abuse government power to target political enemies emboldened the DOJ, FBI, and intelligence community’s intrusion into politics and its interference in elections.

Things Got Much Worse

Crossfire Hurricane looks like child’s play compared to the FBI’s direct interference in the 2020 election, as recently revealed by Facebook CEO Mark Zuckerberg: The FBI lied to tech giant Facebook, and presumably also Twitter and others, that the about-to-drop Hunter Biden laptop story was Russian disinformation, causing the “free press” to censor a story damaging to the politically favored Democrat candidate.

Barr and Durham’s restraint likewise did not teach the DOJ and FBI to “scrupulously apply the single and proper standard of justice for everybody.” Sussmann’s trial revealed this on a small scale when former FBI General Counsel Baker proved himself a grudging witness against his friend, so much so that Baker didn’t reveal Sussmann’s damning “I’m coming on my own—not on behalf of a client or company—want to help the Bureau,” text message until after the statute of limitations expired for any charge related to that apparent falsehood.

Baker would later confirm his reluctance to assist the special counsel. The DOJ’s Office of Inspector General also resisted Durham’s efforts to convict Sussmann, keeping quiet about several cell phones it had taken possession of and failing to disclose that Sussmann had met with the inspector general on behalf of Joffe as well.

The lack of prosecutions and Clinesmith’s slap on the wrist, coupled with the media’s nonchalance over the DOJ’s political weaponization, instead convinced the bad actors that they own the DOJ and FBI. Thus Mueller’s pit bull Andrew Weissmann, fired FBI Director James Comey, and Crossfire Hurricane lead-hoaxer Peter Strzok unabashedly take to Twitter to cast Barr and Durham as the corrupt ones or to ignore or laugh about what they did to the country and Trump. Worse yet, when Durham announced that Sergei Millian, an innocent American Danchenko framed as a source for the Steele dossier, refused to testify at Danchenko’s trial because he feared for his family’s safety and worried rogue FBI agents may attempt to arrest him, Strzok posted a thread suggesting Millian was “a Russian intelligence officer or co-optee.”

The Twitter trolling over their misconduct proves minor, though, compared to the internalizing of the we-own-the-DOJ-and-FBI lesson Democrats learned. FBI whistleblowers revealed this reality when they told Iowa Sen. Chuck Grassley: “Washington Field Office assistant special agent in charge Timothy Thibault and other FBI officials … ‘falsely portray[ed] as disinformation evidence acquired from multiple sources that provided the FBI derogatory information related to Hunter Biden’s financial and foreign business activities, even though some of that information had already been or could be verified.’” The whistleblowers also told Grassley that “in August of 2020, FBI supervisory intelligence analyst Brian Auten opened an assessment, which was used by a team of agents at FBI headquarters to improperly discredit and falsely claim that derogatory information about Biden’s activities was disinformation, causing investigative activity and sourcing to be shut down.”

Since then, and following Biden’s election, the DOJ and FBI have gone nuclear in political targeting, with the Biden administration running a redo of the Russia collusion hoax to raid Trump’s Mar-a-Lago home. Yet even after personally seeing the DOJ and FBI’s deceit, Barr believes the narrative peddled to justify the search and only hopes his successor, Attorney General Merrick Garland, will act prudentially, keeping in mind that “this is a former president.” Prudence has no place in the calculus, however, because the latest targeting of Trump appears as political as every former get-Trump effort.

The political weaponization of the DOJ and FBI extends much beyond Trump, though, with the federal government targeting those in the former president’s orbit, seizing their cell phones, and likely seeming interested in prosecuting some of his closest advisers or supporters such as Rudy Giuliani, Jeff Clark, and Mike Lindell. And while Biden attempts to portray Trump and “MAGA” — which alone is half the country — as the only enemies of the state, the DOJ’s political targeting extends much further, such as framing parents who protest school board decisions as potential terrorists. The DOJ is also going after nonprofits that lobby states to pass legislation to protect children from chemical and surgical castration.

Friday saw a further escalation in the Biden administration’s fight against political enemies when the FBI reportedly dispatched 20-some SWAT agents, with guns drawn, to arrest Mark Houck in his house, terrifying his wife and seven children. Houck’s alleged crime? Supposedly violating the federal access to clinics law when he pushed someone connected to the clinic after the individual allegedly continued to harass Houck’s 7-year-old son. Yet Garland and FBI Director Christopher Wray have left unmolested those protesting illegally outside the home of conservative Supreme Court justices and seem unconcerned with the destruction of pregnancy and family resource centers.

State attorneys general and prosecutors have likewise learned the lesson — that the targeting of conservatives will be tolerated — as seen last week when New York’s Democrat AG Letitia James filed suit against Trump and his children, Don Jr., Eric, and Ivanka, alleging in a sprawling 200-plus-page complaint that “the Trump Organization committed all kinds of fraud in inflating real estate assets to get more favorable loans.”

In Michigan, the target is Trump-endorsed AG candidate Matthew DePerno, whom his Democrat opponent, Dana Nessel, made the subject of a special prosecutor investigation based on DePerno’s role in challenging the outcome of the 2020 election. Targeting of Republicans by Fulton County prosecutor Fani Willis proves even more widespread, with the Georgia prosecutor launching a “special grand jury” investigation into the 2020 election and subpoenaing several big-name Republicans, including Sen. Lindsey Graham; Trump’s election lawyers, Giuliani, John Eastman, Jenna Ellis, and Cleta Mitchell; and many state-level Republicans.

When Barr joined the Trump administration as AG in 2019, his apparent approach to righting the DOJ and FBI appeared eminently reasonable: Expose and remove those engaged in misconduct; reestablish the criminal process as sacrosanct, ensuring there is no political interference; and prove to the public, political appointees, and career employees that the DOJ will not be “used as a political football” by exercising prosecutorial discretion cautiously and by sparingly resorting to the criminal process to obtain justice. Durham’s similar approach to probing Crossfire Hurricane and Mueller’s investigation likewise rested within the realm of “reasonableness.”

But what was judicious nearly three and a half years ago proves foolhardy today because Barr and Durham’s discretion taught the left only one lesson: There will be no consequences to those who abuse the justice system to attack conservatives.

While it may be too late now to reverse course, with the statute of limitations likely expired on several of the crimes, if Durham is debating a broader conspiracy charge, prudence now compels a course change with every plausible charge filed against everyone complicit in the hoax and investigation. Nothing less will save the DOJ and FBI — and our country.

Margot Cleveland is The Federalist’s senior legal correspondent. She is also a contributor to National Review Online, the Washington Examiner, Aleteia, and Townhall.com, and has been published in the Wall Street Journal and USA Today.

Cleveland is a lawyer and a graduate of the Notre Dame Law School, where she earned the Hoynes Prize—the law school’s highest honor. She later served for nearly 25 years as a permanent law clerk for a federal appellate judge on the Seventh Circuit Court of Appeals. Cleveland is a former full-time university faculty member and now teaches as an adjunct from time to time.

As a stay-at-home homeschooling mom of a young son with cystic fibrosis, Cleveland frequently writes on cultural issues related to parenting and special-needs children. Cleveland is on Twitter at @ProfMJCleveland. The views expressed here are those of Cleveland in her private capacity.