While much speculation inside the Beltway says U.S. Attorney John Durham will punt the results of his so-called Spygate investigation past the election to avoid charges of political interference, sources who have worked with Durham on past public corruption cases doubt he'll bend to political pressure — and they expect him to drop bombshells before Labor Day.
AG William Barr was asked, "Under oath, do you commit to not releasing any report by Mr. Durham before the November election?” His reply: "No.'
(Chip Somodevilla/Pool via AP)
Durham’s boss, Attorney General Bill Barr, also pushed back on the notion his hand-picked investigator would defer action. Under Democratic questioning on Capitol Hill last week, he refused to rule out a pre-election release.
"Under oath, do you commit to not releasing any report by Mr. Durham before the November election?” Rep. Debbie Mucarsel-Powell (D-Fla.) asked Barr, citing longstanding Justice Department policy not to announce new developments in politically sensitive cases before an election.
“No,” the attorney general curtly replied.
Justice Department policy prohibits prosecutors from taking overt steps in politically charged cases typically within 60 days of an election. Accordingly, Durham would have to make a move by the Friday before Labor Day, or Sept. 4.
Sidebar: A Brief History of the '60-Day Rule Paul Sperry, RealClearInvestigations
A low-profile prosecutor, Durham has kept a tight lid on his investigation into the origins of the specious Russiagate investigation of Donald Trump and his 2016 campaign, leading to rampant speculation about who he might prosecute and whether he would take action ahead of the Nov. 3 presidential election.
Former Vice President Joe Biden: Durham's probe involves officials in two administrations, including Trump's presumptive Democratic opponent.
(AP Photo/Andrew Harnik)
That could well be of historic consequence, since his probe involves both the Trump administration and high-level officials in the previous administration, including Trump's presumptive Democratic rival, former Vice President Joe Biden. Recently declassified FBI notes show Biden offered input into the investigation of Trump adviser Michael Flynn in early January 2017. Another declassified document reveals that Biden was among those who requested Flynn’s identity be “unmasked” in foreign intelligence intercepts around that same time.
If Durham announces criminal indictments or plea agreements involving former officials operating under the Obama-Biden administration, or releases a report documenting widespread corruption, independent voters could sour on Biden and sympathize with Trump. On the other hand, kicking the ball past the election could dispirit Trump’s base.
“I would find it hard to believe that he punts under any circumstances,” said former assistant FBI director Chris Swecker, who knows Durham personally and has worked with the hard-nosed prosecutor on prior investigations.
He pointed out that Durham would risk throwing away 16 months of investigative work if he delayed action beyond the election.
Chris Swecker, ex-assistant FBI director: “No question that if Biden is elected, everything Durham has done at that point will be canceled out.”
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“There’s no question that if Biden is elected, everything Durham has done at that point will be canceled out,” Swecker explained, adding that Biden would replace Barr and possibly even Durham. But by putting indictments and reports "into the public arena” before the election, Durham would put a Biden administration in the position of either taking further action or closing down his probe.
“It would make it very difficult for Biden’s appointees to undo his charges or bury the results of his probe,” he said. “John knows this and I fully expect he will take action before the election.”
Swecker, who’s also a former prosecutor, anticipates Durham will deliver criminal charges, a written report or some combination of the two around the first week in September, if not sooner. “He must get his work done and out to the public by Labor Day,” he said. "That way he avoids any accusations that he was trying to impact the election.”
Democracy 21, a liberal Washington watchdog group, has already cited the department policy in recent complaints to Barr demanding he suspend Durham's investigation and place on hold any further actions or public comments about it until after the election.
“If Barr allows indictments from the Durham investigation to come out during the presidential election campaign, he would be abandoning longstanding DOJ policy by misusing the department’s prosecutorial power to support Trump's reelection campaign,” Democracy 21 President Fred Wertheimer argued.
Swecker, who served 24 years with the FBI before retiring as assistant director of the FBI's Criminal Investigative Division, said he expects Durham to take more action “than just issuing a report” similar to the 500-page document issued in December by Justice’s inspector general, Michael Horowitz. The IG made criminal referrals to Durham, including against an FBI attorney accused of altering evidence used to support a surveillance warrant on a former Trump adviser.
“I know John Durham. I worked under him on the Whitey Bulger case, which resulted in indictments of [corrupt FBI] agents,” Swecker said. “I don’t think he’s the least bit squeamish about bringing indictments if there is criminal exposure.”
John Brennan: Indictments of the CIA boss, James Comey and James Clapper are not expected. Says ex-FBI official Swecker: “It’s hard to prove criminal intent at their level, and unless there’s a smoking gun, like an email or text, they’ll probably get off with a damning report about their activities.”
AP Photo/Pablo Martinez Monsivais, File
Swecker says he’s confident Durham has uncovered crimes. “He's onto something, I’m convinced of it, otherwise he would have folded up his tent by now,” he asserted in a RealClearInvestigations interview.
The lack of media leaks coming from Durham's office is another sign he is building a serious corruption case, Swecker said. Targets and witnesses have largely been kept in the dark about the scope and direction of his investigation, encouraging cooperation and possible plea deals. And the secrecy of grand jury proceedings has been fiercely protected.
“I’m impressed with the discipline his team has shown,” Swecker said. "There’s been no leaks. The investigation has been very close-hold.”
Durham, a Republican, has been known to threaten to polygraph investigators whenever he suspected a leak.
His team is led by his deputy, Nora Dannehy, who specializes in the prosecution of complex white-collar and public corruption cases. A Democrat with a reputation for integrity, she left a high-paying corporate job to rejoin Durham’s office in March 2019, the month after Barr was confirmed.
Barr officially announced in May 2019 that he had put Durham in charge of looking into what he called the government's “spying" on the Trump campaign in 2016. Was that surveillance justified? Or was it done to smear Trump and sink his campaign -- and when that failed, his presidency? Durham is exploring a host of other questions, including: What role did the CIA play? Did it monitor Trump advisers overseas? Were U.S. laws restricting spying on U.S. citizens broken? Did the spy agency slant U.S. intelligence on Russian election interference to justify the anti-Trump operation?
“As a former CIA analyst, Barr recognized that this is the biggest thing since Watergate in terms of the abuse of the intelligence community,” Swecker said. “This is a huge, huge intelligence scandal."
Swecker named former FBI attorney Kevin Clinesmith among officials most vulnerable to possible criminal charges in Durham’s investigation of the investigators. Justice’s watchdog made a criminal referral pertaining to his conduct – specifically, that Clinesmith forged an email in a way that hid the fact that former Trump adviser Carter Page had been a cooperating CIA source on Russia. The information, if disclosed to the FISA court, would have weakened the FBI’s case that Page was a “Russian agent.”
On the other hand, Swecker does not expect Durham to indict former FBI Director James Comey, nor former CIA Director John Brennan or Director of National Intelligence James Clapper. None of these central figures in the scandal has been interviewed by Durham’s office, according to recent published reports, though Durham reportedly is working out details with Brennan’s lawyer for a pending interview. Durham’s investigators have already reviewed Brennan's emails, call logs and other records.
“It’s hard to prove criminal intent at their level, and unless there’s a smoking gun, like an email or text, they’ll probably get off with a damning report about their activities,” Swecker said.
Durham’s portfolio also includes exploring the extent to which Ukraine played a role in the counterintelligence operation directed at the Trump campaign during the 2016 election. Officials from Kiev, the Democratic National Committee and the Obama administration reportedly coordinated efforts to dig up dirt on Trump – and Biden was Obama’s point man in Ukraine at the time.
Though Biden may factor into Durham’s probe, don’t expect him to appear in any pre-election report. Another longtime Durham colleague noted that political candidates cannot be part of indictments or any report on investigative findings, according to Barr’s own rules.
“The policy says you can’t indict political candidates or use overt investigative methods targeting them in the weeks before an election,” said the former federal prosecutor, who requested anonymity.
Barr has publicly acknowledged the policy. “The idea is you don’t go after candidates,” he said in an April radio interview. “You don’t indict candidates or perhaps someone that’s sufficiently close to a candidate within a certain number of days before an election.”
The former prosecutor, who’s worked with Durham, said his old colleague may start revealing developments from his case weeks in advance of the 60-day cut-off, or ideally right after the political conventions. The GOP convention, which follows the Democrats’ gathering, ends Aug. 27.
“They are nervous about affecting the election, so timing is everything,” he said. “It will be tricky."
At the same time, the former Justice official said Durham could exploit a loophole in the department rule, memorialized in memos dating to 2008, that allows for action closer to the election. It states that “law enforcement officers and prosecutors may never select the timing of investigative steps or criminal charges for the purpose of affecting any election, or for the purpose of giving an advantage or disadvantage to any candidate or political party. Such a purpose is inconsistent with the Department’s mission.” (Emphasis added.)
The operative phrase – “for the purpose of” – leaves leeway for actions close to an election that aren’t taken “for the purpose” of affecting the election. In other words, Durham wouldn’t necessarily have to lie low for the two months in the run-up to the election.
Testing that loophole with an "October surprise” would almost certainly send Democrats and the Washington media into high dudgeon.
Some are skeptical Durham will deliver at all, regardless of the deadline, while others question his reputation as a fierce prosecutor. They point to his nearly three-year investigation of CIA officials who destroyed videos of terrorist detainees allegedly being “tortured.” Congress had sought the evidence, but Durham closed the case in 2012 without filing any criminal charges. And his final report about what he found remains classified. In a 2018 criminal case, moreover, he cleared Comey’s general counsel, James Baker, of unauthorized leaks to the media.
The Senate’s top FBI watchdog, Chuck Grassley, has grown frustrated with Durham’s lack of progress. “Durham sh[ou]ld be producing some fruit of his labor,” the Iowa senator groused in a recent tweet.
Swecker attributes the sluggish pace of Durham’s sprawling probe to the COVID-19 health scare, which has restricted travel and grand jury meetings in the D.C. area. Durham’s team of investigators, who include retired FBI agents, has been operating out of his New Haven, Conn., offices. Besides Washington, they have taken trips abroad. Before the coronavirus outbreak, they interviewed authorities and other sources in Italy, Britain and Australia.
In addition, Durham’s agents have been slowed by an avalanche of subpoenaed electronic media, including emails, texts and direct messages, “which are incredibly difficult and time-consuming to sort through,” Swecker said. Such evidence is not limited to FBI, Justice and CIA officials. Durham also has reportedly obtained, for instance, data and meta-data contained on two BlackBerry cellphones used by Joseph Mifsud, a shadowy Maltese professor who some believe was used by the FBI to create a predicate to open the original case against the Trump campaign.
During last week’s House hearing, Rep. Tom McClintock, R-Calif., asked Barr if he would be able to "right this wrong” against Trump before the election.
“I really can’t predict that,” the attorney general answered. "John Durham is looking at all these matters. COVID did delay that action for a while. But he's working very diligently.”
Added Barr: "Justice is not something you can order up on a schedule like you're ordering a pizza.”
McClintock warned Barr that if he is succeeded by a Biden appointee, Durham’s investigation will simply go away.
"I understand your concern,” Barr sighed.