There are many runaway special counsels, and then there’s John Durham. He bombed spectacularly last week, the latest pratfall in his nearly four-year campaign to prove that the FBI’s probe into connections between Russia and former President Donald Trump’s 2016 campaign cut corners, violated the law, and was deeply unfair to the poor ex-president.
Durham failed to nail the Russian policy researcher Igor Danchenko on four felony false statements that helped lead to the Trump probe. The federal judge was so unimpressed with Durham’s pleadings that he threw most of them out. The jury hardly had time to order lunch before returning a not-guilty verdict.
Durham blew it in May, too, when another D.C. jury rejected his arguments. It acquitted Michael Sussmann, a one-time Hillary Clinton campaign lawyer, of making false statements to the FBI—a charge prosecutors make when they have nothing else. (See Martha Stewart and Scooter Libby.) Durham can’t even get the low-hanging fruit of what he says is a poisonous tree.
The mystery is not that Durham came up empty in his five-year campaign spanning two administrations to prove G-men were part of a leftist plot, but that he took the assignment in the first place. Durham was no Michael Flynn, a conspiracist seeing partisan conspiracists everywhere intent on smearing Trump. The longtime federal prosecutor wasn’t the sort to ignore incriminating information in plain sight, like Trump’s fervid plays to do business in Moscow or hiring Paul Manafort—choosing as his campaign manager a Washington fixer known for his ties to oligarchs who kept anything that might hurt Vladimir Putin’s feelings out of the GOP platform.
As his hunt proceeded, Durham must have noticed Trump’s bizarre behavior in Helsinki in 2018. That’s when the president of the United States kept American diplomats out of his sit-down with Putin and then declared that he believed the Russian leader’s denial of electoral interference over the entire American intelligence community. Searching for a pro-Hillary plot in the FBI may not have been as self-destructive as Joe McCarthy alleging that Reds had infiltrated the Army, but it was still strange behavior for Durham, a moderate Republican with a straight-arrow reputation as the U.S. attorney in Connecticut. The 72-year-old had been a VISTA volunteer in his youth and had helped put the Boston mobster Whitey Bulger in the clink. Like so many Republicans, Durham was honorable until he fell in with the wrong crowd in Washington.
While Durham’s was a classic runaway prosecution, at the same time he was as slow as sludge. Even the notorious Ken Starr didn’t drag out his appointment this long. While Starr only got to travel as far as Arkansas and the Virginia suburbs, Durham toured the world as if he were on a leisurely Viking cruise, starting with a four-star stay in Rome with his boss, then Attorney General Bill Barr, who tapped him for the assignment. In Trump’s last days in office, Barr would resign, in a futile effort to retain a shred of his former reputation, with a fawning letter to Trump. He elevated Durham to special counsel, insulating him from being removed by Merrick Garland (not that the attorney general would do such a thing). So Durham was left home alone to continue his witch hunt well into the Biden administration. The president could end it but only at the risk of dredging up memories of the Saturday Night Massacre, when three prosecutors pursuing Richard Nixon were fired.
Tuesday’s spectacular defeat in federal court was Durham’s second—and, if there’s any sanity, final—attempt to prove that the FBI relied on the work of a flaky former British spy, Christopher Steele, of the infamous Steele dossier, who, in turn, relied on other flaky ersatz spies in a politically tinged effort to smear Trump to the point of tapping the campaign’s phones. Durham’s enterprise was as flaky as Steele’s, relying on the preposterous assumption that the FBI was a hotbed of left-wingers and, incredibly, that any administration controls the FBI. It was notably the other way around when J. Edgar Hoover collected incriminating information on presidents to control them. The chaos wrought by James Comey while Barack Obama was president, closing and opening investigations into Hillary like a kitchen cabinet door, shows that the FBI is no administration’s pawn. Deep Throat was an FBI man.
From the outset, a junior associate at a small-town law firm could see that the FBI didn’t rely on the dossier for their investigation. At worst, the Bureau didn’t follow up on enough leads that may or may not have furthered their inquiry.
Special and (now-defunct) independent counsels have spotty records, the Watergate inquiry the only one remembered fondly enough to become a major motion picture. (No one would pay to see Brendan Gleeson play Ed Meese in Wedtech.) Durham, before he accepted Barr’s charge, was a standard-issue Republican working his way up the legal ladder to U.S. attorney in the Nutmeg State, not one to heed Trump’s call.
It’s easier to see why Barr called him. Durham was renowned for nailing Bulger and for the convictions won by his indomitable star deputy, Nora Dannehy, who racked up a perfect record putting corrupt Connecticut pols in jail, including the state treasurer who diverted pension funds to his buddies for kickbacks and John Rowland, the Republican governor who took gifts from contractors and political friends.
Durham must have had an inkling that he was mired in a fruitless mission when Dannehy up and returned to Hartford in September 2020, the first time the renowned prosecutor abandoned a mission before bringing it to a successful conclusion.
Before that, Durham knew he was rolling a rock uphill after one of Washington’s most respected inspectors general in government found that the Russia investigation was not confected. It wasn’t a plot launched by Obama or Clinton, or Comey’s deputy Peter Strzok, who had an affair with a fellow agent that generated embarrassing emails but revealed no plan to sic the Bureau on Trump. Despite a conservative news-and-publishing industry that has lavished millions on the proposition, there was no smoking gun. It’s hard to fathom why Durham invested himself so heavily in one of Barr’s and Trump’s more hopeless vendettas.
Durham is unlikely to ask the question posed by others who built successful careers at home and then failed when they came to Washington. “Where do I go to get my good name back?” pleaded Ray Donovan, Ronald Reagan’s labor secretary, after his time in the barrel. Durham’s just an errand boy who won’t long be remembered amid the rogues’ gallery of others sullied by associating with Trump: John Kelly, H. R. McMaster, John Bolton, Deborah Birx, Barr himself. The former attorney general wrote a whole book trying to justify doing Trump’s lawless bidding. But you can only comfort yourself for so long with the notion that “it would have been worse if I hadn’t been there.”
If he’s lucky, history won’t dwell on Durham’s transformation from a respected prosecutor to a hapless proxy. No one will remember that he did for Barr what he would have never done in his old job: misused the court, where prosecutors are possessed of superpowers, to make a political point.
But Durham shouldn’t be forgotten. He’s a vivid example of someone who came to do good but ended up doing well, temporarily a bold name with a big budget, no one to tell him what to do, plus all the time in the world not to do it.
In Washington, there’s an effort periodically to put an end to special counsels, outsiders who take a troubling situation off the front page but often become troubling themselves. Starr’s Javert act led Congress to drop the independent counsel, but special counsels, an only slightly less feral beast, continue to roam the Earth. Next chance lawmakers get, they should tighten the reins further, with Durham’s two courtroom fiascos, costing the taxpayer about $14 million, as Exhibit One.