Will he stay or will he go, and, if Special Counsel John Durham goes, after spectacularly botching a prosecution, will it be under his own sail? The career prosecutor might exercise the judgment he had before he fell in with the wrong crowd. Or, after three years of coming up with zilch, will Attorney General Merrick Garland deliver a deadline for the 72-year-old to begin a bucolic retirement in Connecticut?
The question is urgent after a Washington, D.C., jury returned a verdict of not guilty in Durham’s biggest case to date, charging the lawyer Michael Sussman with making a false statement. It followed on a meeting Sussman had with the FBI general counsel, James Baker, to inform him about information he had been given about curious activity between the computer servers of Donald Trump’s campaign and the Alfa Bank of Russia. Baker told Durham that Sussman hadn’t revealed his firm’s connections to Hillary Clinton’s campaign, although he admitted that his memory on the point had evolved.
That gave Durham a premise for charging Sussman with a false statement by omission. It gives the rest of us a premise for thinking Durham is a Justice Department careerist out of gas. After the verdict, the jury foreperson said that the government’s time “could have been spent more wisely” than on a “possible lie to the FBI.” If she thinks that, so too must Garland. So too, deep down, must Durham. The smug former Attorney General William Barr had commissioned Durham’s probe in a vain effort to prove to the crazy boss that the deep state had initiated all of the Russia business. Barr’s too smart to have believed it, but Trump had to be appeased.
Durham’s mission was impossible. Robert Mueller successfully convicted every bad actor he’d charged—more than three dozen—and stopped short of Trump because of a Justice Department memo saying a sitting president couldn’t be indicted. Mueller’s investigation was investigated and found to be predicated on sufficient, credible evidence by Inspector General Michael Horowitz. Republicans on the Senate Intelligence Committee agreed. They had to, there’s so much out there: Trump’s campaign manager sharing confidential information with Russian operatives and inserting a pro-Russia/anti-Ukraine plank into the 2016 GOP platform; a trip to Moscow in 2016 on top of many others by the oddball Trump campaign worker Carter Page; another adviser getting an early warning of a Russian hack; Don Jr.’s interactions with a Kremlin-linked lawyer, and not about adoption, as he claimed. Once in office, Trump kicked staff out of the room and nearly bear-hugged Vladimir Putin in Helsinki as he declared that he believed the Moscow strongman’s denials of election interference over the evidence vouched for by 17 American intelligence agencies.
Durham was lured into one last act by Barr, who he may have thought was conservative but not MAGA conservative. When Barr became attorney general, he was faced with a president still fuming that his predecessors wouldn’t open an inquiry into his baseless suspicion that Barack Obama, whom he resented for being born here, had wiretapped Trump Tower (perhaps, thought Trump, in cahoots with Hillary and Jeff Zucker). President Bonespur’s consolation would be Barr’s investigation to discredit the investigation by the even more offensive Mueller, his contemporary who’d gone from the Ivy League to enlisting in the Marines in Vietnam.
Barr set the tone for the inquiry by taking Durham on a James Bond–like three-star hotel, four-star eating tour of Rome to interview a peculiar professor we would never hear about again. From there, the probe dragged on. In 2021, Durham eked out a guilty plea from the former FBI attorney Kevin Clinesmith that he altered an email, with information he believed was true, to quickly fill out a surveillance warrant on Page, who frequented Moscow. Durham wanted Clinesmith, the first in his family to go to college and with a wife expecting their first child, to be incarcerated for six months for behavior that showed “his strong political views and/or personal dislike of [Trump].” Manna to Trump, if he were paying attention. The judge gave Clinesmith one year of probation.
Durham suffered a big loss, and something of a rebuke, when his top lieutenant, Nora Dannehy—a legend in the U.S. Attorney’s Office that Durham headed, for sending corrupt politicians to prison—left abruptly last year, and not for a better job. She said nothing publicly, but associates told the Hartford Courant that Durham was being pressured by Barr to issue a report ahead of the 2020 election, presumably pressure the special counsel might succumb to.
Garland, according to legal scholars, has the power to end the probe, despite Barr naming Durham as special counsel, the better to operate like a lone ranger. But the cautious attorney general may be tempted to let a man stuck in a hole keep digging to avoid the outraged cries of “Cover up!” from the right, from Fox News to the “Hang Mike Pence” crowd. Of all people, Garland knows the terrain. The mild-mannered moderate whom Obama nominated for the Supreme Court in 2016 was denied a Senate vote by Mitch McConnell, who kept the seat warm until 2017 when Trump could name Neil Gorsuch.
One guilty plea ending in probation, one not-guilty verdict, one not-guilty plea from an expat accused of lying about the Steele dossier, over three years? Like those Doomsday prophets who move the date of the Apocalypse forever forward when it doesn’t appear, Durham will convict all those people who’ve hurt Trump out of political spite on a timetable of his own.
The wise course for a man in the twilight of his career would be to discover a sudden need to spend more time with the family and follow Dannehy back to Connecticut. (In an earlier life, Durham was a VISTA volunteer in Montana, always a fine place to retire.) Otherwise, his prosecutorial career, replete with mobster scalps, is in danger of following the same trajectory as another former lawman, Rudy Giuliani. Both had gone after the bad guys: Rudy against the mob, Durham against a rogue FBI agent protecting the crime boss Whitey Bulger. That was until, enticed by one more round in the arena, they both took up with a bad guy themselves.
