Patrick G. Eddington
For years, now former President Donald Trump and his key supporters have claimed the FBI’s investigation into his alleged collusion with Russian officials in order to influence the outcome of the 2016 election–internally known at the FBI as CROSSFIRE HURRICANE–was a hoax. Yesterday, Mr. Trump got some validation for his claim.
Late on the afternoon of May 15, Attorney General Merrick Garland released, in nearly unredacted form, the final report of Special Counsel John Durham. Durham’s “investigation of the investigation” was authorized on October 19, 2020, by then‐Attorney General William Barr.
Under the mandate he received, Durham was authorized to investigate whether any “federal official, employee, or any other person or entity violated the law in connection with the intelligence, counter‐intelligence, or law‐enforcement activities directed at the 2016 presidential campaigns, individuals associated with those campaigns, and individuals associated with the administration of President Donald J. Trump, including but not limited to Crossfire Hurricane and the investigation of Special Counsel Robert S. Mueller, III.” (Durham Report, p. 2)
So what did Durham find?
With respect to evidence of collusion between the Trump campaign and Russia, Durham found that before the initial receipt by FBI Headquarters of information from Australia on July 28, 2016, “the government possessed no verified intelligence reflecting that Trump or the Trump campaign was involved in a conspiracy or collaborative relationship with officials of the Russian government…neither U.S. law enforcement nor the Intelligence Community appears to have possessed any actual evidence of collusion in their holdings at the commencement of the Crossfire Hurricane investigation.” (p. 8)
Durham cited two key FBI officials as being responsible for getting the dubious CROSSFIRE HURRICANE investigation started:
“In particular, at the direction of Deputy Director Andrew McCabe, Deputy Assistant Director for Counterintelligence Peter Strzok opened Crossfire Hurricane immediately. Strzok, at a minimum, had pronounced hostile feelings toward Trump. The matter was opened as a full investigation without ever having spoken to the persons who provided the information. Further, the FBI did so without (1) any significant review of its own intelligence databases, (2) collection and examination of any relevant intelligence from other U.S. intelligence entities, (3) interviews of witnesses essential to understand the raw information it had received or (4) using any of the standard analytical tools typically employed by the FBI in evaluating raw intelligence. Had it done so…the FBI would have learned that their own experienced Russia analysts had no information about Trump being involved with Russian leadership officials, nor were others in sensitive positions at the CIA, the NSA, and the Department of State aware of such evidence concerning the subject. In addition, FBI records prepared by Strzok in February and March 2017 show that at the time of the opening of Crossfire Hurricane, the FBI had no information in its holdings indicating that at any time during the campaign anyone in the Trump campaign had been in contact with any Russian intelligence officials.” (p. 9)
For Durham, the evidence of bias in the FBI’s approaches to the Clinton and Trump campaign investigations was clear and unmistakable:
“The speed and manner in which the FBI opened and investigated Crossfire Hurricane during the presidential election season based on raw, unanalyzed, and uncorroborated intelligence also reflected a noticeable departure from how it approached prior matters involving possible attempted foreign election interference plans aimed at the Clinton campaign. As described in Section IV.B, in the eighteen months leading up to the 2016 election, the FBI was required to deal with a number of proposed investigations that had the potential of affecting the election. In each of those instances, the FBI moved with considerable caution. In one such matter… FBI Headquarters and Department officials required defensive briefings to be provided to Clinton and other officials or candidates who appeared to be the targets of foreign interference. In another, the FBI elected to end an investigation after one of its longtime and valuable CHSs went beyond what was authorized and made an improper and possibly illegal financial contribution to the Clinton campaign on behalf of a foreign entity as a precursor to a much larger donation being contemplated.” (pp. 9–10)
And with respect to “…highly significant intelligence it received from a trusted foreign source pointing to a Clinton campaign plan to vilify Trump by tying him to Vladimir Putin so as to divert attention from her own concerns relating to her use of a private email server…”:
“Unlike the FBI’s opening of a full investigation of unknown members of the Trump campaign based on raw, uncorroborated information, in this separate matter involving a purported Clinton campaign plan, the FBI never opened any type of inquiry, issued any taskings, employed any analytical personnel, or produced any analytical products in connection with the information. This lack of action was despite the fact that the significance of the Clinton plan intelligence was such as to have prompted the Director of the CIA to brief the President, Vice President, Attorney General, Director of the FBI, and other senior government officials about its content within days of its receipt. It was also of enough importance for the CIA to send a formal written referral memorandum to Director Comey and the Deputy Assistant Director of the FBI’s Counterintelligence Division, Peter Strzok, for their consideration and action.” (p. 10)
Regarding the sensational dossier of alleged Trump misconduct and ties to Russian officials, supplied to the U.S. government by former U.K. intelligence officer Christopher Steele, Durham found no corroboration for any of Steele’s claims:
“Our investigation determined that the Crossfire Hurricane investigators did not and could not corroborate any of the substantive allegations contained in the Steele reporting. Nor was Steele able to produce corroboration for any of the reported allegations, even after being offered $1 million or more by the FBI for such corroboration.” (p. 11)
Durham’s critics will no doubt point out that of the three actual criminal cases he brought against key figures in this case, he secured a plea bargain in only one–that of FBI attorney Kevin Clinesmith, who pled guilty to altering a document submitted to the Foreign Intelligence Surveillance Court (FISC) in connection with a FISA application on Trump associate Carter Page. Clinesmith got 12‐months’ probation (p. 232).
But on this, the critics miss a key point: The other two defendants–Russian national and Steele sub‐source Igor Danchenko and Perkins Coie attorney and Clinton campaign opposition researcher Michael Sussmann–were acquitted during jury trials on charges of making false statements to investigators. Those were not defeats for Durham, they were vindications of the American jury trial system, a system in which prosecutors are supposed to be forced to prove the guilt of the accused beyond a reasonable doubt. They represent a rare but welcome departure from the usual practice by DoJ prosecutors: coercive plea bargains.
So what are the key takeaways from the Durham Report?
The best‐case interpretation is that a handful of clearly anti‐Trump FBI agents and lawyers, suffering from a severe case of confirmation bias, managed to open and steer a totally unfounded counterintelligence investigation against an American presidential candidate and his campaign. The worst‐case interpretation is that the senior most FBI leadership was at least tacitly okay with that approach, while proceeding far more cautiously and carefully with an investigation into his chief political opponent.
The flagrantly disparate treatment of the Trump and Clinton investigations from legal, policy, and procedural standpoints is further evidence of the bias.
Durham’s reform proposals don’t begin to get at the core problem his own investigation uncovered. Durham suggests that “to provide additional scrutiny of politically sensitive investigations would be to identify, in advance, an official who is responsible for challenging the steps taken in the investigation. [Former NSA General Counsel] Stewart Baker proposes having a ‘career position for a nonpartisan FBI agent or lawyer to challenge the FISA application and every other stage of the investigation.’ ”(p. 306)
In fact, this is exactly the role federal courts are supposed to play: providing a real check and challenge to Executive branch prosecutors and the evidence they bring seeking warrants to investigate or indictments to charge people. The failure here is with the FISC and its proclivity–like nearly all federal courts–to show a ludicrous level of deference to executive branch claims brought before them. They key reform here is for the Senate to stop confirming so many executive branch advocates to the federal bench.
Finally, the fallout from this will not just be political, but potentially legal as well. The existing federal investigations into Trump’s culpability for the January 6, 2021, Capitol riot, as well as his alleged theft of hundreds of classified documents upon leaving office, will be viewed by his supporters and perhaps other Americans as nothing more than the continuation of the FBI’s vendetta against Trump–no matter how compelling and well‐grounded any evidence against him may be.
That House and Senate overseers of the FBI have for decades ignored complaints from civil society organizations about FBI surveillance and investigative overreach is a key reason why we face this new crisis.