A few months after special counsel Robert S. Mueller III appeared on Capitol Hill to answer lawmakers’ questions about the investigation he led into Russia’s effort to influence the 2016 election, the Justice Department inspector general released a much-anticipated follow-up. It didn’t consider the question of whether Donald Trump or people in his campaign had aided or been linked to Russia, as Mueller had. Instead, the inspector general’s report released in December 2019 considered whether the probe that Mueller inherited from the FBI had itself been legitimate.
For two years, Trump had insisted that it wasn’t. He took to calling the Russia investigation a hoax or a witch hunt well before anyone had any sense of what was being investigated, much less any likely conclusions. He and his allies hoped that the report from Inspector General Michael Horowitz would provide them ammunition — particularly given that the impeachment investigation was just heating up.
In that regard, Horowitz’s report was a letdown. It confirmed that the FBI had a valid reason to open an investigation into links between a Trump campaign adviser and Russia, especially because the adviser had told an Australian diplomat he had learned Russia possessed stolen data from Hillary Clinton. Concerns were articulated, including in text messages between two FBI employees in which Trump was disparaged. More concerning was the discovery that an FBI lawyer had altered a document that was included in an effort to obtain a warrant to surveil a former Trump campaign official with links to Russia. Generally, however, Horowitz’s conclusion was one Trump didn’t want to hear: The Russia probe was properly predicated and legitimate.
But there was already another effort underway to undercut the Russia investigation. In May 2019, Attorney General William P. Barr — confirmed to that position a few months prior — appointed U.S. Attorney John Durham to conduct a broader review of the Russia investigation. Barr was clearly antagonistic to Mueller’s effort, masterfully releasing an aggressively Trump-friendly version of Mueller’s findings before a redacted version of the full report became public. Much of the sense that Mueller’s investigation came up empty depends on Barr’s framing and a pro-Trump audience primed for that frame.
Barr didn’t have similar control over Horowitz’s report, so when it came out, he was reactive. He released a lengthy statement mostly restating the Trumpworld view of the investigation. And then, unexpectedly, Durham also weighed in, producing a statement that had the effect of blowing on the dying embers of Trump’s hope that Mueller and the FBI would be exposed as biased partisans.
“Our investigation has included developing information from other persons and entities, both in the U.S. and outside of the U.S.,” it read. “Based on the evidence collected to date, and while our investigation is ongoing, last month 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.”
The implication? Both shoes had not yet dropped.
This week, the second one did. Durham’s probe — now more than three years in duration, nearly twice as long as the period between Mueller’s appointment as special counsel and the conclusion of his team’s work — had obtained an indictment against Igor Danchenko, a key source of information for the infamous dossier of reports alleging links between Trump’s campaign and Russia. But the prosecutorial effort failed, and a jury on Tuesday found him not guilty on the charges.
It was the second not-guilty verdict in a row for Durham’s team. He had similarly obtained an indictment against a lawyer who worked for a law firm hired by Clinton’s 2016 campaign, but he failed to prove his case to a jury’s satisfaction. The only criminal charge successfully resolved by Durham’s team was the one against that FBI official who had altered the document — a charge stemming from Horowitz’s work, not Durham’s. Contrast that with Mueller, who obtained dozens of indictments and a battery of guilty pleas.
Even if Durham had obtained convictions of Danchenko and that lawyer, Michael Sussmann, his achievements would hardly have matched the expectations of Trump and his allies. Nailing a guy for lying to the feds after Trump was already president? For an attorney not telling the FBI he was working for Clinton’s campaign (which he denied anyway)? Hardly the convictions that Trump’s most loyal advocates were hoping Durham would generate if he had been successful, which federal prosecutors usually are.
“John Durham’s team, this is not about working on another report like the IG,” Sean Hannity said in May 2020. “They actually have the ability to convene grand juries, and they’re working on criminal prosecutions potentially. Justice is hopefully coming.” If not, he added, the result would be that “the great American republic will disintegrate before your eyes.”
Not that Durham didn’t provide Hannity with a steady stream of fodder for his shows. Durham took to lacing his court filings with morsels quickly devoured by the right-wing media, as when, during the Sussmann prosecution, he hinted that Sussmann was part of an effort from the White House to spy on electronic data. Trump and the Fox News world went wild … until it became clear that the data was voluntarily shared with researchers by the Obama White House.
As Politico reported, the tail end of the Danchenko trial seemed to be focused more on prosecuting the FBI than the defendant. The FBI was always one of the central targets, of course, since it was the FBI that opened the investigation in the first place, until the firing of FBI Director James B. Comey triggered the appointment of Mueller. But on that front, too, all Durham managed to deliver were questions and critiques — most not dissimilar from what Horowitz’s December 2019 report contained.
Among Trump’s most eager defenders, responses to the Danchenko verdict were mixed. Hannity, no doubt understanding what Durham wanted the consolation prize to be, proclaimed that he “never really cared that much about Igor Danchenko.” Instead, “what we learned in the trial is what matters to me more.” John Solomon, a writer selected by Trump to craft an anti-Russia-investigation storyline, looked forward to a final Durham report and suggested that Republicans might put together a commission to study the situation. (That seems likely should Republicans win the House, but not for the reasons Solomon would like his readers to believe.)
Rep. Matt Gaetz (R-Fla.) was one of the few voices critical of Durham’s obvious failure to make the case.
“Durham has been on this investigation for years, and here we are, 0-and-2, with fewer wins than the Washington Generals,” Gaetz said. He noted that former California congressman Devin Nunes — now the head of Trump’s social media company — sent more than a dozen criminal referrals to Durham, and he wondered why those didn’t yield prosecutions.
The answer, of course, is that political rhetoric is not a strong substitute for actual evidence — if it’s even connected to reality at all. Stay tuned for that commission.
Barr and Durham got into this from the outset with the apparent belief that the FBI had acted rashly and without proper grounds for doing so. They spent months working together on evaluating the case, including flying to Europe to test alternate theories about the probe’s genesis. But, despite that belief and that effort, they weren’t able to make the case they sought. “Russia hoax” proponents like Solomon were left championing as Durham victories things like Clinton using Trump’s ties to Russia to help her campaign.
In other words, Durham spent three years and $4.5 million to advance the ball little further than Horowitz did. As has long been apparent, the “hoax” wasn’t the Russia investigation. The hoax was trying to present the Russia probe as a hoax.