Key Takeaways
Special counsel John Durham’s long-awaited report was, as one would expect, as meticulous as it was damning in its findings of fact.
Russian intelligence officers could have fed disinformation to the very people who were ultimately cited in the series of six reports prepared by Christopher Steele.
Congress will, as it should, hold hearings to find out more about why senior leaders at the FBI intentionally skirted proper procedures.
pecial counsel John Durham’s long-awaited report was, as one would expect, as meticulous as it was damning in its findings of fact.
He concluded that there was no basis to immediately launch a full-fledged investigation against Donald Trump; that the FBI failed to follow up on intelligence reports that Hillary Clinton had approved a scheme to manufacture the Russia hoax and that her campaign funded opposition research to supply to the FBI and media with the false narrative; and that FBI leaders willingly subverted FBI policy, quashed investigations into Clinton’s potential violations of the law, and more.
The report, 306 pages long with 1,753 footnotes, is a sobering read.
Who Is John Durham?
Some in the media are now casting aspersions on the 73-year-old apolitical career prosecutor, calling his thorough report “political” and suggesting that there is “nothing new” in the report.
Any fair reading of the report itself shows that it is objective, fact-based, and provides not only new facts, but paints a devastating full picture of the degree to which senior leaders in the FBI, private industry, the Clinton campaign, and the media worked to push an utterly false narrative to help elect Clinton and kneecap Trump.
During the course of Durham’s sterling career, he has been tasked by attorneys general in Democratic and Republican administrations alike for decades to handle extremely sensitive and difficult assignments and has received praise from all sides for his professionalism, thoroughness, and apolitical approach.
A former state court prosecutor, Durham has been with the U.S. Department of Justice since 1982. In 1999, Attorney General Janet Reno appointed Durham as a special counsel to investigate how the Boston FBI office handled informants in mob cases after it was learned that mobster James “Whitey” Bulger and another mobster had influenced their FBI handlers.
In 2008, Attorney General Michael Mukasey appointed Durham to investigate whether the destruction of CIA tapes of detainee interrogations at overseas locations constituted a crime.
In August 2009, Attorney General Eric Holder named Durham to investigate whether interrogation of terrorist detainees by the CIA violated any laws, adding to the then-ongoing CIA tapes investigation. In 2010, Durham concluded his investigation into both matters.
Durham remained in the U.S. Attorney’s Office for the District of Connecticut as a line prosecutor until he was nominated in 2017 to be the U.S. attorney for that state by then-President Donald Trump. The Senate confirmed him on a voice vote.
Sen. Chris Murphy, D-Conn., said at the time that Durham had “a reputation of being apolitical and serious.”
Durham Investigation Begins
In May 2019, then-Attorney General Bill Barr tasked Durham with investigating the government’s handling of the fabricated allegations that surfaced in the months before the 2016 presidential election of collusion between the Trump campaign and Russia.
On May 12, Durham delivered his final report, detailing his findings and conclusions to Attorney General Merrick Garland. Garland reviewed it over the weekend, and the Justice Department made it public on Monday.
While Durham explained that the Justice Department has put in place new processes and procedures to prevent similar types of breaches of trust in the future, he concluded that the answer to the problems is not really “the creation of new rules, but a renewed fidelity to the old.”
That’s true so far as it goes. But it’s painfully clear, based on the report, that the old rules weren’t followed—egregiously so.
The origins of the Russia-collusion hoax allegations, the breathless treatment of them by the mainstream media, the government’s handling of those allegations, and the fallout from that handling have all been extensively catalogued elsewhere, but Durham’s report makes a valuable contribution to those previous efforts and provides a deep dive into what went wrong where.
His team “conducted more than 480 interviews; obtained and reviewed more than one million documents consisting of more than six million pages; served more than 190 subpoenas under the auspices of grand juries; executed seven search warrants; obtained five orders for communications records under 18 U.S.C. § 2703(d); and made one request to a foreign government under a Mutual Legal Assistance Treaty.”
Before delving into the facts, Durham explained the levels of investigations of counterintelligence matters that were in effect in 2016. With respect to such investigations, the FBI is required to use the least intrusive investigative techniques where feasible.
As found on Page 22 of the report, Durham notes, “The President has directed that the Intelligence Community ‘shall use the least intrusive collection techniques feasible within the United States or directed against United States persons abroad,’” referencing Executive Order 12333, Section 2.4 of Dec. 4, 1981.
And when the investigation involves a “sensitive investigative matter,” to include a political candidate, then “particular care should be taken when considering whether the planned course of action is the least intrusive method.”
The four levels of investigation, from least intrusive to most intrusive are:
- Evaluate the information, such as looking at government records, commercially and publicly available information, conduct voluntary clarifying interviews and the like.
- Open an assessment if there is an authorized purpose and clearly defined objective. Techniques include recruiting and using confidential human sources, physical surveillance in 72-hour increments, and obtaining grand jury subpoenas.
- Open a preliminary investigation if there is information or an allegation that a federal crime or threat to national security may be occurring. Techniques include undercover operations, trash covers (digging through trash to see if a suspect has discarded incriminating items), consensual monitoring, pen registers (obtaining a court order to disclose numbers dialed on a suspect’s phone), national security letters, and polygraphs.
- Open a full investigation, but only if there is “an articulable factual basis for the investigation that reasonably indicates that … an activity constituting a federal crime or a threat to national security … is or may be occurring … and the investigation may obtain information relating to the activity.”
Durham found, and the facts he lays out establish, that senior leaders at the FBI violated their own rules with respect to the level of investigation, and also applied a double standard as between Trump and Clinton.
A Bar in London
It all started on May 6, 2016, when a foreign policy adviser for candidate Trump named George Papadopoulos met three men for drinks at a bar in London. The three men were Australian High Commissioner Alexander Downer, a foreign diplomat, and an Australian diplomat. The men talked politics, and Papadopoulos talked about Trump and his belief that Trump could win the presidency.
Two months after the meeting, on July 26, 2016, Australia provided the U.S. Embassy in London with an email its diplomats had memorialized from the meeting with Papadopoulos. That information was passed along to the FBI’s attaché in London.
Paragraph five of the email noted that Papadopoulos had commented that the Clintons had a “lot of baggage” and that the Trump team had “plenty of material to use in its campaign” against her. He also “suggested that the Trump team had received some kind of suggestion from Russia that it could assist this process with the anonymous release of information during the campaign that would be damaging to Mrs. Clinton and [then-President Barack] Obama.”
The Australian diplomats later informed the FBI that the reason they even sent the email about Papadopoulos, whom they characterized as “insecure” and “trying to impress,” was because of the public release by Wikileaks of email communications that had been hacked from the Democratic National Committee’s servers.
Zero Investigation
Durham noted on Page 58 of his report that the information from Papadopoulos was “clearly raw and unevaluated.” The information, even though unverified or uncorroborated, was the sole basis for the full-scale investigation of Trump.
As Durham noted, “the Crossfire Hurricane investigation [into claims that the Trump campaign colluded with Russia] was immediately opened as a full investigation [rather than as an assessment or as a preliminary investigation], despite the fact that it was … predicated on unvetted hearsay information.” In fact, the “matter was opened as a full investigation without [the FBI] ever having spoken to the persons who provided the information.”
Durham concluded that “the record reflects, as of early 2017, the FBI still did not possess any intelligence showing that anyone associated with the Trump campaign was in contact with Russian intelligence officers during the campaign.”
But worse still, “an experienced FBI analyst assessed that as a result of their access to information, [the sub-sources (secondhand sources) of certain information the FBI possessed] could have been compromised by the Russians at a point in time prior to the date of the first … dossier report” that was provided to the FBI.
In other words, Russian intelligence officers could have fed disinformation to the very people who were ultimately cited in the series of six reports prepared by Christopher Steele—the so-called Steele dossier—on behalf of the Clinton campaign and furnished to the FBI.
Durham detailed how the FBI agents in charge of the investigation failed to take simple investigative steps, such as questioning the sources of some of this information and how befuddled allied intelligence services eventually declined to provide further assistance into this absurd investigation.
But some of these missteps may make more sense considering that “ … at the direction of [FBI] Deputy Director Andrew McCabe, Deputy Assistant Director for Counterintelligence Peter Strozk opened Crossfire Hurricane immediately.”
“Strzok was the agent who both wrote and approved the electronic communication opening the matter from the very start … .”
Durham said, though, that his “investigation gathered evidence that showed that a number of those closest to the investigation believed that the standard [for opening a full investigation] had not been met.” Durham emphasizes that “(e)ven Strzok, who both drafted and approved the opening EC [electronic communication], said that ‘there’s nothing to this, but we have to run it to ground.’”
Still, as Durham understatedly put it, “Strzok, at a minimum, had pronounced hostile feelings toward Trump.” Durham said that the “record reviewed by [his] office demonstrated a rather clear predisposition on the part of at least certain FBI personnel at the center of Crossfire Hurricane to open an investigation into Trump.”
As evidence, Durham cited the series of now-infamous text messages Strzok exchanged with McCabe’s special assistant, Lisa Page, denigrating Trump and saying things like “ … Hillary should win 100,000,000-0” and “Trump is a disaster. I have no idea how destabilizing his presidency would be.”
Hillary Clinton Gets a Pass
Not only did Durham’s investigation reveal that Strzok and Page wanted Clinton to be president, but it also revealed that they thought she would be president and, as a result, slow-walked several investigations related to her.
The slowness and caution exhibited by FBI officials in those investigations stands in stark contrast with the aggressive actions they took in the Trump investigations. For instance, in an investigation related to the Clinton Foundation, “both senior FBI and [Justice] Department officials placed restrictions on how those matters were to be handled, such that essentially no investigative activities occurred for months leading up to the election.”
At a Feb. 22, 2016, meeting, McCabe ordered FBI “field offices to close their cases [into the Clinton Foundation], but following objections, agreed to reconsider the final disposition of cases.” Still, any overt investigative steps had to be approved by him. One attendee described McCabe’s demeanor at the meeting as “negative,” “annoyed,” and “hostile.”
Durham—and others—also criticized Strzok’s actions related to investigations involving Clinton.
Durham wrote:
The speed of [Strzok’s action in opening a full investigation into Trump] sharply contrasts with Strzok’s decision-making in the referral in September 2016 of a matter involving former Congressman Anthony Weiner’s laptop computer. In that instance, according to the OIG [Office of Inspector General], the FBI and Strzok did not act for over a month to pursue legal process to review thousands of missing Clinton emails found on Weiner’s laptop. The OIG sharply criticized the FBI, and particularly Strzok, for this delay … [T]he immediate opening of Crossfire Hurricane as a full investigation contrasts with the care taken in connection with the investigation of the Clinton Foundation and other matters.
Of course, these differing approaches make more sense when put into context. Durham explained:
In the end, the perceived difference between the approaches taken and mindsets of FBI personnel central to both the Clinton and Trump matters is well-captured in a Feb. 24, 2016, email between McCabe’s special assistant, Page, and Strzok. Prior to the FBI’s interview of Clinton in the investigation of her use of a private email server while she was serving as secretary of state, the following exchange took place:
Page: One more thing: [Clinton] may be our next president. The last thing you need [is] going in there loaded for bear. You think she’s going to remember or care that it was more DOJ than FBI? Strzok: Agreed … .
But the FBI’s disparate treatment of the two candidates and campaigns didn’t stop there. When the FBI thought Clinton’s campaign could unwittingly fall victim to foreign-influence attempts, it provided her with a defensive briefing—basically warning her of the danger and advising her on the steps to take to avoid entanglement. It never provided—nor apparently contemplated providing (or if so, only cursorily contemplated providing)—such a briefing to Trump or his campaign.
Clinton Campaign Plan
Then there’s the issue of the Clinton campaign plan.
Essentially, in late July 2016, U.S. intelligence services picked up information from their monitoring of Russian intelligence of “an alleged approval by Hillary Clinton on July 26, 2016, of a proposal from one of her foreign-policy advisers to vilify Donald Trump by stirring up a scandal claiming interference by Russian security services.”
As the intelligence reports indicated, she wanted to distract from her own legal problems; specifically, her own illegal use of a personal email server while secretary of state. When interviewed by Durham’s office, Clinton and other campaign officials denied that such a plan was ever devised.
Regardless of whether such a plan was memorialized, it is clear her campaign engaged in a slew of activities that were consistent with such a plan.
Durham explained that “this intelligence—taken at face value—was arguably highly relevant and exculpatory because it could be read in fuller context, and in combination with other facts, to suggest that materials … [relied on by the FBI] were part of a political effort to smear a political opponent and to use the resources of the federal government’s law enforcement and intelligence agencies in support of a political objective.”
But the FBI “failed to act on what should have been—when combined with other, incontrovertible facts—a clear warning sign that the FBI might then be the target of an effort to manipulate or influence the law enforcement process for political purposes during the 2016 presidential election.”
Durham explained that even “CIA Director [John] Brennan and other intelligence officials recognized the significance of the intelligence by expeditiously briefing it to the president, vice president, the director of national intelligence, the attorney general, the director of the FBI, and other senior administration officials.”
The CIA even sent a formal referral memo addressed to FBI Director James Comey and to Strzok on Sept. 7, 2016.
Kept in Dark
Many, if not most, on the Crossfire Hurricane investigatory team were shockingly unaware of the intelligence reports outlining the alleged Clinton campaign plan. Durham said his office “showed portions of the Clinton plan intelligence to a number of individuals who were actively involved in the Crossfire Hurricane investigation.”
Their reactions? “Most advised they had never seen the intelligence before, and some expressed surprise and dismay upon learning of it.” In fact, one supervisory special agent “became visibly upset and emotional, left the interview room with his counsel, and subsequently returned to state emphatically that he had never been apprised of the Clinton plan intelligence and had never seen the aforementioned referral memo.”
He went on to express “a sense of betrayal that no one had informed him of the intelligence.” FBI General Counsel James Baker similarly said “that he had neither seen nor heard of the Clinton plan intelligence or the resulting referral memo prior to his interview with” Durham’s office.
Nonetheless, Durham said that “the government’s handling of the Clinton plan intelligence may have amounted to a significant intelligence failure and a troubling instance in which confirmation bias and a tunnel-vision pursuit of investigative ends may have caused government personnel to fail to appreciate the extent to which uncorroborated reporting funded by an opposing political campaign was intended to influence, rather than inform, the FBI.”
He concluded, though, that it “did not, all things considered … amount to a provable criminal offense.”
Misleading the FISA Court
As an integral part of its Crossfire Hurricane investigation, the FBI sought and obtained several warrants for electronic intercepts from the secretive Foreign Intelligence Security Court, which was established under the Foreign Intelligence Surveillance Act and is designed, among other things, to uncover foreign agents who pose a threat to national security.
The Durham report makes it crystal clear that the FBI misled the Foreign Intelligence Security Court by presenting false evidence and failing to provide exculpatory evidence that was inconsistent with its theory about alleged Trump campaign collusion with the Russians.
The FBI, among other things, reported the contents of the Steele dossier as though it contained corroborated, well-established facts. The FBI failed to report that individuals had made statements that were inconsistent with information contained in the Steele dossier during conversations that were recorded by confidential informants, and the FBI failed to report that the major source for the Steele dossier was a highly questionable character who had himself been the subject of a previous counterintelligence investigation by the FBI that was never satisfactorily concluded.
The list goes on and on.
In that regard, Kevin Clinesmith, an FBI attorney and self-proclaimed member of the resistance to Trump, altered an email that the FBI relied on in seeking warrants from the Foreign Intelligence Security Court against Carter Page, a Trump campaign adviser, to say that Page had never cooperated with another U.S. government agency, when in fact he had.
Clinesmith later pleaded guilty to one count of making a false statement in violation of 18 U.S.C. § 1001(a)(3). Like others involved in the Crossfire Hurricane investigation, Durham concluded that “it appears likely that political or personal bias contributed at least to some extent to Clinesmith’s conduct in this matter.”
Fidelity, Bravery, and Integrity Lacking
There are, of course, many more important—and damning—facts contained in Durham’s thorough and sobering report.
Given all of this, it is understandable that Durham’s final takeaway is that the “promulgation of additional rules and regulations to be learned in yet more training sessions would likely prove to be a fruitless exercise if the FBI’s guiding principles of ‘Fidelity, Bravery and Integrity’ are not engrained in the hearts and minds of those sworn to meet the FBI’s mission of ‘Protect[ing] the American People and Uphold[ing] the Constitution of the United States.’”
It’s very likely that the Durham report will not be the end of this saga. Congress will, as it should, hold hearings to find out more about why senior leaders at the FBI intentionally skirted proper procedures, abused their offices, and sent the country into a four-year tailspin.
Congress or others should consider bar referrals for those attorneys who knowingly violated the law or abused their office, though they, like Clinesmith, might only receive a slap on the wrist. Anyone and everyone involved in this sordid tale who violated their oath or duty should be fired from government service, and prevented from every holding another federal job.
But it’s likely time for a larger conversation about the FBI’s role and potential reforms to put in place additional guardrails to prevent future repeats of this type of conduct.
After all, if our Founding Fathers recognized that only power can check power and implemented institutional restraints accordingly, shouldn’t we do the same, too?
By John Malcolm
Vice President, Institute for Constitutional Government
By Charles “Cully” Stimson
Senior Legal Fellow and Deputy Director, Meese Center
By Zack Smith
Legal Fellow and Manager, Meese Center for Legal Studies
