Donald Trump and William Barr have spent years alleging that the Russia investigation was a criminal plot by the FBI. The Department of Justice’s inspector general found the Russia investigation was adequately predicated, but Barr disagreed. So he selected a prosecutor, John Durham, who would supposedly uncover this scheme and begin frog-marching its perpetrators to justice.
By 2020, Barr was conceding that Durham might not reach all the way up to Barack Obama but would bring down his accomplices. “As to President Obama and Vice-President Biden,” he said that spring, “whatever their level of involvement, based on the information I have today, I don’t expect Mr. Durham’s work will lead to a criminal investigation of either man. Our concern over potential criminality is focused on others.” By the fall, Barr was reportedly “communicating that Durham is taking his investigation extremely seriously and is focused on winning prosecutions.”
However focused he may be, Durham is not winning prosecutions. His investigation has produced a single guilty plea from one extremely small fish for a likely immaterial error that the Inspector General already found. And now he is losing prosecutions. Durham abused his authority by trying to prosecute Michael Sussmann, a lawyer working for Hillary Clinton, whom Durham tried to convict on a single perjury charge. And the case turns out to have been so pathetically threadbare that it resulted in a rapid acquittal.
Sussmann went to the FBI in 2016 with evidence compiled by computer researchers that the Trump campaign was coordinating with Russia through a server run by the Russian bank Alfabank. The scientists were not sure if the server was a communications link between Trump and Russia and wanted the FBI to investigate. The link was never proven, and the FBI quickly decided not to pursue the thread, though Dexter Filkins has argued in detail that the case remains uncertain.
The charge against Sussmann alleged that he misled the FBI by saying he was not working on behalf of a client when in fact he was working for the Hillary Clinton campaign. Not only is a single charge of lying to the FBI weak tea for a prosecution, it was obvious all along that the evidence for even this small charge was tenuous. The prosecution hung its case on the testimony of one FBI official, James Baker, based entirely on his recollection of a conversation. Baker, however, was foggy on many of the specifics of his interactions with Sussmann, and even testified to Congress that he couldn’t remember if he knew who Sussmann was working for.
The trial went badly enough for Durham that his fans in the right-wing media were already laying the groundwork for acquittal by blaming the judge for allowing a juror who believed (but wasn’t sure) she had contributed to Clinton’s campaign. That excuse might have held some water in the event of a hung jury. But the jury’s unanimous and extremely speedy verdict suggests a single possible former Clinton-donating juror is not the reason. The reason is that Durham didn’t have the goods.
The fact Durham even had to bring this case was a testament to the failure of his probe. He had set out to uncover the FBI’s crimes against Mr. Trump. He was reduced to trying, and failing, to prosecute somebody for lying to the FBI.
In the meantime, Durham supplied hours of commentary for Fox News personalities by filling his indictment with lurid claims that were not backed by evidence. Durham attempted to use the Sussmann trial to prove a version of the theory Trump claimed all along: that the Clinton campaign and the FBI had opened an investigation into Trump, knowing its evidence was fake, and then leaked the evidence of the investigation to the media in order to elect Hillary.
Durham tried to use his charge against Sussmann as a hook for the larger conspiracy theory that he, Trump, and Barr have been expounding: that investigation was ginned up in order to smear Trump in the media before the election. “You can see what the plan was,” Assistant Special Counsel Andrew DeFilippis told the jury. “It was to create an October surprise by giving information both to the media and to the FBI to get the media to write that there was an FBI investigation.”
There are several flaws with this theory. The first is that the Russia investigation was already underway before Sussmann approached the FBI with his suspicions about the server.
The second is that the FBI never leaked its investigation until after Trump was elected. The only reporting on the whole matter before the election was in a New York Times report that the FBI “saw no clear link to Russia.” Meanwhile, the Hillary Clinton investigation had sprung leaks all over the place. So the Trump-Barr-Durham theory somehow posits that the FBI set up a phony investigation in order to leak it and then forgot to leak, instead doing the opposite by telling the Times that the Bureau did not suspect the Trump campaign.
Indeed, the Sussmann trial revealed that the Clinton campaign did not want the FBI to open a probe into the Alfabank server because it feared an investigation would make it less likely that the media would write about the story at all. So to the extent Durham deepened the public understanding of Trump’s conspiracy theory of the Russia investigation, he inadvertently undermined it. I argued in 2020 that Joe Biden’s Justice Department was correct to let Durham continue his investigation because it would expose the hollowness of Trump’s allegations. And it has.
The final, largest hole in the conspiracy theory is that there were in fact serious grounds for suspicion. By 2016 it was already apparent that Trump had hired as his campaign manager a guy who owed money to a Russian oligarch and who had previously managed the foreign campaign of a Russian puppet, had publicly asked Russia to hack his opponent’s emails, had exploited the results of that hack, among other things. The investigation turned up many more details, including a secret meeting where Trump’s campaign manager passed polling data on to a Russian agent, a secret business deal that promised to give Trump hundreds of millions of dollars in profit at no risk (and which he was exposing himself to Russian blackmail by denying in public), and so on.
Why would Sussmann go to the FBI? No doubt he wanted Clinton to win. Durham presupposes this was his only motive. But Sussmann was also privy to an allegation whose technical details he wasn’t qualified to judge, but which had potentially alarming implications. The reason Sussmann was afraid Trump posed a security threat to the United States is that Trump posed a security threat to the United States.
Editor’s note: This piece has been updated to clarify the Inspector General and Durham’s respective roles in Durham’s one successful guilty plea.
