The most thorough, impactful analysis of the decision to launch an investigation into Russia’s efforts to influence the 2016 election and possible connections to Donald Trump’s campaign is not the report released on Monday by special counsel John Durham. It is, instead, a report that Durham sought to undermine when it was released in December 2019: the one conducted by Justice Department inspector general Michael Horowitz.
That report introduced useful, important skepticism to the decision to launch the FBI’s investigation, though it ultimately concluded that the probe was warranted. Horowitz’s work uncovered the shoddy manner in which the FBI sought a warrant to surveil Trump campaign official Carter Page and it triggered the only successful criminal prosecution to stem from the examination of the Russia investigation, that of an FBI lawyer who’d altered an email used in the warrant application.
When Horowitz’s report came out, though, Durham was only a few months into his own probe of the same question — one that bore the imprimatur of Attorney General William P. Barr. So he took the unexpected step of releasing a statement in response to Horowitz.
“Our investigation has included developing information from other persons and entities, both in the U.S. and outside of the U.S.,” he wrote. “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.”
Over the course of the following three-plus years, Durham’s position didn’t change. He remains now, as he was then, opposed to the launch of the FBI probe. But while that period included several unsuccessful efforts to bring criminal charges against people loosely linked to the Russia probe, his final report contains no dramatic demonstration that Horowitz got things wrong.
That statement was useful, though, in establishing early on that Durham was headed toward a particular conclusion. That was reinforced in the efforts to prosecute individuals he alleged bore responsibility for stoking the idea that Trump and Russia were in cahoots. His and his team’s assertions were often vague enough to trigger right-wing furors that later had to be softened. His work was often an engine for conspiracy theories that were at no point validated.
In his final report, Durham winks at this role.
“If this report and the outcome of the Special Counsel’s investigation leave some with the impression that injustices or misconduct have gone unaddressed, it is not because the Office concluded that no such injustices or misconduct occurred,” it reads. “It is, rather, because not every injustice or transgression amounts to a criminal offense, and criminal prosecutors are tasked exclusively with investigating and prosecuting violations of U.S. criminal laws.”
In other words, just because he didn’t bring charges doesn’t mean that right-wing conspiracy theories weren’t validated. It may just be that there was no explicit violation of the law.
Ironically, this was a point that special counsel Robert S. Mueller III made in his own report, the one that Durham sought to undermine. Mueller noted that his team’s investigation into coordination between Trump’s campaign and Russia considered only “an agreement — tacit or express — between the Trump Campaign and the Russian government on election interference.” None was found.
“[T]he investigation established multiple links between Trump Campaign officials and individuals tied to the Russian government,” Mueller’s final report read. “Those links included Russian offers of assistance to the Campaign. In some instances, the Campaign was receptive to the offer, while in other instances the Campaign officials shied away. Ultimately, the investigation did not establish that the Campaign coordinated or conspired with the Russian government in its election-interference activities.”
Durham refers to this conclusion in his own report, in an effort to prove how skepticism of Mueller’s efforts was warranted.
“That investigation,” he writes of Mueller’s work, “‘did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities.’”
In mentioning that portion of Mueller’s findings, Durham did not pointedly note that “not every injustice or transgression amounts to a criminal offense.”
What’s striking about the final Durham report is the extent to which it acts as though events were occurring in isolation.
Durham spends an extended period considering the original predicate for the probe (code-named Crossfire Hurricane): The revelation from the Australian government that a Trump campaign official named George Papadopoulos had in May 2016 mentioned that Russia was in possession of material damaging Trump’s opponent Hillary Clinton. The report quotes the actual revelation provided to the U.S. government on July 26, 2016:
“The information — involving an ongoing presidential campaign — was precisely the kind of unevaluated information that required rigorous analysis in order to assess its relevance and value,” Durham writes. “Nevertheless, the FBI predicated Crossfire Hurricane and its subsequent investigative activities, including the use of [confidential human sources], undercover operations and [Foreign Intelligence Surveillance Act (FISA)] coverage, on the statements attributed to Papadopoulos.”
Crossfire Hurricane was launched on July 31, 2016. By that point, while the FBI may not have “possess[ed] any intelligence or other vetted, corroborated information regarding Trump or his campaign staff colluding with the Russian government,” as Durham continues, there was no shortage of reason to think that such a link might exist. Trump had multiple members of his campaign term who were linked to Russia, including Page (who’d visited Moscow in early July, as was reported contemporaneously) and his campaign manager, Paul Manafort (who would become a target of a separate probe soon after). He’d publicly asked Russia to hack Clinton’s email server in a news conference, doing so after it was already understood that Russia had hacked the Democratic National Committee’s network, with material stolen from the DNC being released in June and July.
It was the release of some of that stolen material by WikiLeaks beginning on July 22, 2016 that triggered the Australian government’s outreach, in fact, as Durham himself notes. That release triggered its concerns about what Papadopoulos had said … but the FBI was overreacting by launching an investigation?
Durham’s report focuses on other aspects of the Russia probe, too. There’s a lengthy look at the dossier of reports compiled by former British intelligence officer Christopher Steele, a packet of material that’s been thoroughly adjudicated and which was elevated as dubious in Horowitz’s 2019 report.
Durham also considers what he calls “the Clinton Plan,” a theory that has been particularly popular on the political right over the past few years. It centers on something the intelligence community learned “during the summer of 2016”: It had picked up Russian intelligence claiming that Clinton had approved a plan to try to link Trump to Russian interference efforts. In other words, to suggest that Trump was colluding with Russia.
For many of those ideologically sympathetic to Durham, this is all the needed proof. Clinton was planning to imply collusion just as collusion was implied? What more do you need?
We can start with the genesis of the rumor. It originated with the Russians themselves, with Durham admitting that he could not determine “the accuracy of this allegation or the extent to which the Russian intelligence analysis may reflect exaggeration or fabrication.”
Then there’s the timeline. The point at which the government picked up this information is unclear, but Durham describes a meeting between senior officials and President Barack Obama on July 28 when the subject is raised, suggesting that the information was received not long before. By this point, you’ll recall, all of the aforementioned factors were already in play: Trump asking the Russians to hack, his hiring Manafort, Page’s Moscow visit, the hack of the DNC and release of material from it, the Australians getting their hackles up.
If Hillary Clinton was behind the plan to link Trump to Russia, she had a lot of very unexpected allies in doing so.
This, that Durham picks out isolated trees as suspicious in an effort to obscure the forest, is the central flaw of his investigation. It has always been the central flaw.
“[G]iven the low threshold for predication … we concluded that the [Australia] information, provided by a government the United States Intelligence Community (USIC) deems trustworthy, and describing a firsthand account from an [Australian] employee of a conversation with Papadopoulos, was sufficient to predicate the investigation,” Horowitz wrote in 2019. “This information provided the FBI with an articulable factual basis that, if true, reasonably indicated activity constituting either a federal crime or a threat to national security, or both, may have occurred or may be occurring.”
Durham disagreed. He then spent three years apparently unable to demonstrate reasons other people should join his point of view.
