BY 

 

Originally seen on Newsweek

 

John Henry Durham, the U.S. attorney for Connecticut, is a self-effacing, modest, deeply religious, hard-working prosecutor. Unlike a fair number of U.S. attorneys across the country, he also shuns the limelight relentlessly, even though, on several occasions through a storied career, the limelight has nonetheless found him.

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But not like this. Not like now.

Appointed by Donald Trump to lead Connecticut’s U.S. attorney’s office in 2017, Durham was tapped by Attorney General William Barr in May of this year to investigate the origins of the investigation into candidate and then President Donald Trump—and his alleged ties to Russia. Depending on where you fall on the red-to-blue spectrum, this makes him either an avenging angel, come to right the wrongs inflicted on Donald Trump by an evil deep state—or a deeply untrustworthy partisan hack, tasked to do the dirty work of an allegedly illegitimate president and his attorney general sidekick.

So which is he? Maybe a little of both now.

Until very recently, Durham had, somewhat magically, avoided being part of the partisan bludgeoning. That was all due to his record—and his reticence in talking about it. Though a registered Republican, Durham, now 69, earned chits from Connecticut Democrats for successfully prosecuting former Republican Governor John Rowland for corruption.

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Later, then–Attorney General Eric Holder put his trust in Durham, having appointed Durham to one of the most sensitive investigations of the Obama era. Holder’s predecessor, Michael Mukasey, had appointed Durham to lead an investigation into why the CIA had destroyed video of waterboarding sessions of captured detainees. In 2009, Holder ordered Durham to widen his probe: He was now to investigate whether any CIA officers should be prosecuted for their roles in applying “‘enhanced interrogation techniques” to prisoners. At the time, the political left in the U.S. was baying for blood in the wake of the torture allegations. After a lengthy Durham investigation, the Department of Justice decided not to charge. Holder praised his work publicly.

That might have been the last most people would have heard of Durham, until Barr decided to tap him to “investigate the investigators,” as the probe into the origins of the Trump-Russia investigation is known. That made him a potential lighting rod in the most bitterly partisan dispute of all in Washington. Barr, in his second stint as attorney general (the first being under George H.W. Bush), had made it clear that he had questions about the Russia investigation: specifically, whether it was “adequately predicated.” That is: Did the government have enough information about the Trump campaign and Russia to justify opening a probe? After all, he famously—or notoriously—said, “spying on a political campaign [in the United States] is a big deal.”

The statement caused a meltdown among Democrats. They had become deeply invested in the idea that the Trump campaign’s alleged involvement with Russia was going to bring the White House down. Barr, by agreeing to serve as Trump’s attorney general, was now simply a political pit bull, determined to go after Trump’s enemies at the president’s behest. In this view, his statement besmirching a perfectly legitimate counterintelligence investigation into Russia and any ties it might have to Trump was nothing less than scandalous.

On December 9, Justice Department Inspector General Michael Horowitz released a long-delayed, highly anticipated report into the FBI’s pursuit of a surveillance warrant against one-time Trump campaign aide Carter Page. The FBI, from former Director James Comey on down, had insisted that there was nothing wrong with the bureau’s applications to the Foreign Intelligence Surveillance Act (FISA) court. The FBI went before the court four times seeking the original warrant and three extensions. The FBI’s insistence was echoed by Democrats on Capitol Hill—led by now House Intelligence Committee Chairman Adam Schiff—a position largely echoed by the mainstream media. Several Republicans on the committee insisted the opposite was true: the FISA process had been badly corrupted and Page, an American citizen, had been wrongly surveilled for nearly a year.

Horowitz produced something for everyone. He blew the FBI line to shreds in his report. But Democrats happily grasped at two important Horowitz conclusions: that he had found, based on over 100 interviews and over 1 million documents, no “testimonial or documentary evidence” that bias played a role in the Russia investigation; and the investigation had been started for legitimate reasons. Barr had asked whether it had been “adequately predicated.” Here was Horowitz, who was well regarded (by both sides), saying it was.

And then, for John Durham, all hell broke loose. (Durham declined to speak for this story, but Newsweek spoke to more than 15 colleagues, friends and former Justice Department officials.)

The attorney general put out a statement saying he disagreed with Horowitz’s conclusion regarding the investigation’s start. He said the IG’s brief did not extend widely enough for him to reach such a conclusion. Durham’s investigation—which includes looking not only into the FBI but the CIA as well as other foreign intelligence agencies—does have the proper scope.

Thirty minutes later, the famously close-mouthed Durham, in the middle of his investigation, issued his own statement: “Based on the evidence collected to date, and while our investigation is ongoing…we advised the Inspector General that we do not agree with some of the report’s conclusions as to predication and how the FBI case was opened.”

In the context of the tong war that the Russia investigation had become, this was truly a “holy s***!” moment. Several current and former Justice Department officials who talked with Newsweek could not fathom why Durham would have spoken out. All assume he and Barr must have coordinated their statements and timing, but neither Justice nor Durham’s office would confirm that.

“I was stunned,” said former federal prosecutor and longtime Durham colleague David Sullivan. “It was very unusual for him to issue that statement. As much as anyone, he [usually] lets his work do his talking.”

The other question: Why would Barr allow Durham to issue the statement? Several sources who have worked with the attorney general said it is much more in keeping with his style for him to take the public heat on a controversial case while shielding his prosecutors. Barr said later that the Durham statement was “perfectly appropriate. It was important for people to understand that his work was not being preempted, that he was doing something different.”

To the critics of the investigation, the statement simply intensified their suspicions: this, they reason, is a put up job, Barr and Durham, his handpicked prosecutor, going after Trump’s perceived enemies in an election year. Barr must have told Durham to issue his statement; and by doing so, he, like so many others who have worked for the Trump administration, tainted what had been an unblemished record. Eric Holder wrote a column warning Durham, “good reputations are hard-won in the legal profession, but they are fragile; anyone in Durham’s shoes would do well to remember that, in dealing with this administration, many reputations have been irrevocably lost.”

Some friends and former colleagues say they believe they know why he would issue a public statement in such a politically fraught case. As Sullivan, the former prosecutor who worked with Durham for years put it, “he obviously knows stuff. He’s not a guy that’s going to make things up. He may see something being reported in the wake of the Horowitz report that’s wrong, and he may be a little angry. And there are things in the report that would make him angry.”

Like what, exactly?

A friend who is familiar with Durham’s thinking says certain allegations in the Horowitz report about an FBI lawyer, Kevin Clinesmith, likely didn’t sit well with him. Clinesmith allegedly took information about Page from the CIA, which said he had been helpful to the agency over the years. Then Clinesmith, Horowitz alleges, said the opposite to the FISA Court. “It is the sort of thing that sets John off. Let’s face it, the press has underreported the possible gravity of that allegation. This was not some low level [FBI] lawyer making a clerical error. It raises a lot of red flags.”

Colleagues of Durham’s say he is also acutely aware of the power that federal law enforcement has. The power to do good—putting bad guys away—but the power also to damage lives when its authority is wrongfully deployed. Several people interviewed for this article point to a speech Durham gave at a small Connecticut college in March 2018. It is one of the rare instances in his career in which Durham spoke publicly and at length, about being a prosecutor. The entire focus of the talk was the power that prosecutors’ have, and why it must be used judiciously. He said: “Issuing a subpoena can destroy someone’s reputation. It can damage their business, hurt their families. It is an awesome power that we have, that should be used only in appropriate instances.” Later in the same speech he added, “Maybe accusations that are lodged against somebody are untrue, and again, we can destroy a person if that information gets out.”

It’s hard, under the current circumstances, to read those remarks and not think about the surveillance warrants granted to target Page, the former low level Trump campaign adviser. Once it became known publicly that Page was a former member of the Trump campaign and then the subject of FBI surveillance, his life, in his own words, “was ruined.” He’s had to move several times. He claims he has had death threats. His business as an energy consultant, with a focus on Russia, ended. And now, two years after Comey insisted that there was nothing wrong with the process of getting Page under surveillance, we now know, due to the Horowitz report, that that was not true.

This, David Sullivan speculates, may also have Durham worked up. “I imagine he’s pretty concerned about what he’s seen so far. It’s the only reason he would make a public statement like that.”

But not just about Carter Page. Durham’s focus is predication: On what basis was the entire Russia counterintelligence investigation—which turned into a criminal investigation of Trump, which turned into a special counsel investigation—started? The official story is that it started because another young low-level Trump aide, George Papadopolous, ostensibly told Alexander Downer, a senior Australian diplomat, in a London bar that someone had told him that the Russians had dirt on Hillary Clinton. A senior official with knowledge of Barr’s thinking on this matter says the attorney general is “dumbfounded” that Horowitz would say the investigation was legitimately founded based on this tale. In his public comments, Barr has made it clear that he is skeptical of that.

We now know that Durham is as well. And it’s his job to find out whether skepticism is warranted. Can he? One of the trademarks of his career has been long, painstaking investigations that often take a few years to complete. The CIA case took more than three years, so too did the prosecution of a Boston FBI official who was in cahoots with notorious gangster Whitey Bulger. Barr has said the Durham probe is “a big deal.” Yet it only began in May, and in mid-December Barr said he expected Durham would wrap up his investigation by late spring or early summer 2020 in the heat of a presidential campaign.

That puts Durham on the clock. Can that possibly be enough time for him to complete an investigation as politically charged and complex as this one? For a prosecutor as thorough as Durham? One indictment, say former prosecutors, seems likely: FBI attorney Clinesmith for allegedly falsifying a document submitted to the FISA court. And there may be other cases to be brought regarding misleading the FISA court, which is a felony. (Clinesmith’s attorney did not return calls for comment.)

But that’s only glancingly related to the issue of predication. The first FISA application was approved in October 2016, a couple of months after the formal launch of Operation Crossfire Hurricane in late July. Is Durham really going to get to the bottom of what actually happened to start the Russia investigation by next spring, and, if there are alleged crimes involved, to bring cases?

There are a lot of doubters among current and former law enforcement officials. “It really makes you wonder what all of this is really about,” says one former attorney in the Justice Department’s national security division.

As Eric Holder put it, reputations in the Trump era are easily lost. We’ll now see what comes of John Durham’s.

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