Former U.S. President Donald Trump once predicted that a special prosecutor appointed during his administration would uncover “the crime of the century” — a conspiracy to sink his 2016 campaign.
Yet here are the results of the three-year probe by prosecutor John Durham: two trial acquittals — the latest on Tuesday — and a former FBI attorney sentenced to probation.
That has fallen far short of Trump supporters’ expectations that Durham would reveal a “deep state” plot behind the U.S. government’s investigation into ties between Russia and Trump’s 2016 presidential campaign.
The outcome has led to scrutiny over the purpose of Durham’s appointment by former Attorney General William Barr, who tasked him with sussing out misconduct in the Trump-Russia probe. It also has raised questions about whether or when the current attorney general, Merrick Garland, might move to rein in Durham’s work or hasten its completion.
“You really measure the success of an investigation by what it uncovers in terms of pernicious activity, and he’s uncovered nothing,” said Stephen Saltzburg, a George Washington University law professor and former senior Justice Department official.
There are no signs Durham plans to charge anyone else in his investigation. He is expected to produce a report at some point, but it’s unclear whether he will identify any significant misconduct or errors beyond those already reported by the Justice Department’s watchdog.
Barr gave Durham a broad mandate in 2019 to hunt for wrongdoing by the FBI or other agencies in the early days of their investigation into potential coordination between the Trump campaign and Russia. At the time, Durham was the U.S. attorney in Connecticut with decades of Justice Department experience, including investigating CIA interrogations of terror suspects.
Trump supporters cheered the appointment, and not just because of Durham’s bona fides.
The appointment was made shortly after the conclusion of an investigation by special counsel Robert Mueller, which found substantial contacts between Russians and Trump associates but did not allege a criminal conspiracy between them. In December 2019, a Justice Department inspector general report concluded that the Russia investigation was opened for a legitimate reason but identified numerous errors in how it was conducted — giving Trump and his supporters an avenue of attack and optimism over Durham.
But by the end of 2020, there were signs Durham’s investigation was losing momentum.
One of his top prosecutors resigned without explanation from the Justice Department. Months later, Barr told The Wall Street Journal that he did not believe there had been improper activity during the Russia investigation by the CIA, even though suspicions about the intelligence community had helped prompt Durham’s appointment in the first place.
The year ended with just one criminal case — a guilty plea by an FBI lawyer who admitted doctoring an internal email related to the surveillance of a former Trump campaign adviser. Kevin Clinesmith was sentenced to probation, rather than prison. Notably, the case involved conduct uncovered in an earlier investigation by the inspector general, rather than by Durham’s team.
Two other criminal cases, also narrow in nature, faltered. After deliberating for just a few hours, a jury in May acquitted Michael Sussmann, a lawyer for Hillary Clinton’s 2016 presidential campaign. He had been accused of lying to the FBI during a meeting in which he presented the bureau’s top lawyer with information about Trump he thought should be investigated.
On Tuesday, a jury acquitted Igor Danchenko, a Russian analyst at a U.S. think tank who’d been accused of lying to the FBI about his role in the creation of a largely discredited dossier — a compendium of unproven assertions that sought to tie Trump to Russia and whose creation was funded by Democrats. During the trial, he attacked the credibility of FBI agents who were his own witnesses.
Despite the lack of convictions, Durham has still managed to cast an unflattering light on aspects of the Russia investigation. The Danchenko trial, for instance, centred on the origins of the dossier, which helped form the basis of secret surveillance applications the FBI filed to monitor the communications of ex-Trump campaign aide Carter Page.
Even so, Page was one of numerous threads investigated by the FBI, and the dossier did not initiate the Russia probe. The allegations from Durham’s probe have also not erased the core finding of the Mueller probe — that Russia wanted Trump elected and that Trump’s team welcomed the help — nor have they swayed jurors.
“While Durham essentially tried to put the FBI itself on trial through these prosecutions by pointing to missteps and errors in the early Trump-Russia probe, the cases painted the FBI as more victim than perpetrator and evidence of any orchestrated scheme by FBI agents to steer the investigation for political purposes never materialized,” Robert Mintz, a New Jersey lawyer and former federal prosecutor, wrote in an email.
The Justice Department declined to comment about Durham’s future, including how much longer his team might continue or when he might produce a report. Weeks before he resigned, Barr designated Durham as a special counsel to ensure his investigation would continue in the Biden administration.
A spokesman for Durham declined to comment on criticism of the work.
Garland and senior Justice Department leaders, perhaps careful to avoid the perception of meddling in such a politically charged investigation, have taken a hands-off approach to Durham’s work.
Before Sussmann was indicted, his attorneys appealed to senior department officials in hopes of preventing a charge, according to a person familiar with the matter who insisted on anonymity to discuss private conversations. But the Justice Department rebuffed the protest, allowing the case to proceed.
Now, though, there is rising pressure not only on Durham to wrap up but on Garland, as attorney general, to urge him along.
“I think he was very wise to let this run its course,” Saltzburg said of Garland. “I believe the course has been run. It’s over. I believe what Merrick Garland should say to Durham is, it’s time to submit your report and go home.”
Associated Press writer Matthew Barakat in Alexandria, Virginia, contributed to this report.
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