Barr-Durham investigation again fails to produce a main event

On Sept. 17, John Durham, former Attorney General William Barr’s designated special counsel, unveiled a molehill he had made out of the mountain Barr hired him to build. In May 2019, Barr appointed Durham, a former Connecticut U.S. Attorney, to “investigate the investigators” who launched the FBI’s 2016 Trump-Russia probe.

Friday’s product of Durham’s two-plus year effort had nothing to do with that. Durham indicted former Democratic Party attorney Michael Sussmann for false statements to the FBI. Sussmann allegedly lied in September 2016 when he offered the FBI information about the Trump campaign’s supposed communications channel to a Russian bank. Sussmann allegedly denied, falsely, that he was representing any client in presenting the information.

Sussmann disputes the charges.

Notice that Sussmann’s alleged lie occurred months after the Trump-Russia investigation began and is therefore irrelevant to Durham’s mission — to determine whether the FBI launched its investigation legitimately. The collateral nature of the indictment surpasses even that of Durham’s only other product, the August 2020 guilty plea of former FBI agent Kevin Clinesworth, who admitted altering a June 2017 email he submitted to the Foreign Intelligence Surveillance Court (FISA) 11 months after the 2016 FBI investigation began.

Make no mistake: however incidental to Durham’s charter, these kinds of crimes are serious. Deceiving the FISA court to obtain a wiretap on former Trump adviser, Carter Page, violated Mr. Page’s constitutional rights, undermined the FISA court’s credibility, and eroded the rule of law. 

So does lying to the FBI. Without any penalty for false statements to investigators, our law enforcement system unravels.

Recall that Michael Flynn pleaded guilty to special counsel Mueller’s indictment for such lying. Flynn’s falsehood, however, went to the heart of the investigation that Mueller inherited from the FBI. After Trump’s win, Flynn lied to agents to cover up the substance of his December 2016 friendly phone conversation with Russia’s U.S. ambassador. That exchange looked a lot like part of a “quo” offered up for a “quid” of Russia’s alleged help for Trump’s campaign.

In contrast, Sussmann’s supposed lie was completely peripheral to what Durham was investigating: the 2016 investigation’s origin. Through cascading media interviews, Barr used the Durham inquiry to promote Trump’s unfounded claims that he was victim of a “hoax” and one of the “biggest political scandals in history.”

In December 2019, when Michael Horowitz, DOJ’s independent inspector general, determined that the FBI in fact had a legitimate basis to open its 2016 probe, Barr “spun” Horowitz’s conclusion, saying: “The Inspector General’s report now makes clear that the FBI launched an intrusive investigation of a U.S. presidential campaign on the thinnest of suspicions that, in my view, were insufficient to justify the steps taken.”

Barr called the original investigation “completely baseless.” He implied that Durham might well reverse the IG’s conclusion because Durham could “require people to testify,” authority Horowitz lacked.

Two months later, Barr pontificated on Fox News that what happened to Trump was “one of the greatest travesties in American history. Without any basis they started this investigation of his campaign.”

Justice Department rules disfavor public comment on investigations. Barr raised hard-to-meet expectations and thereby damaged the investigation itself, not to mention the FBI, Justice Department and nation. And after 28 months of investigating, Durham has produced nothing to show the Trump-Russia probe began improperly. 

Even the prospects for Sussmann’s conviction are uncertain. His jury must decide whether he lied and if so, whether it was “material” — did it tend to influence how the FBI proceeded? That may be difficult because the indictment acknowledges that the FBI was aware at the time of Sussmann’s work for the Clintons and the Democrats; its allegation is that he falsely told the FBI that he wasn’t representing any client in bringing the FBI the information he handed over, when — according to the indictment — he later billed the Clinton campaign for the meeting.

While the FBI surely treats political information from someone working for a presidential campaign as less credible than information from a “good Samaritan,” Sussmann apparently did tell the FBI that he represented the Democratic National Committee and the Clinton Foundation.

And the FBI decided not to pursue the allegations Sussmann brought them.

Expect the defense to argue that Sussmann, with an otherwise unblemished record, should not be sent to prison even if there was a technical failure to disclose. Attorney General Merrick Garland wisely chose not to interfere in a politically fraught matter.

We do not know what Durham’s investigation may eventually yield. To date, however, the rose garden that Barr promised Trump and company seems to have sprouted only a couple of thorns.

NOTE: This post has been updated to correct the date of Sussmann’s alleged lie: According to the indictment it occurred in 2016 — one year earlier than what was claimed in the original version.

Dennis Aftergut is a former federal prosecutor, who has successfully argued before the Supreme Court. He is currently of counsel at the Renne Public Law Group in San Francisco.