How Garland’s release of Trump-Russia probe report differed from Barr’s
" Trump claimed Mueller's inquiry was a witch hunt. Barr, siding with Trump, suspected it may have been one. Driven by a desire to find evidence against law enforcement and/or intelligence agencies to give support to Trump's deep state witch hunt allegation Barr hired Durham to investigate Mueller's work. Sept. 2019 Barr and Durham make a surprise trip to Italy. The trip was both a surprise and surprising to all but Barr and Durham.
A tale of two special counsel reports, four years apart, and two attorneys general
By Devlin Barrett and Perry Stein May 16, 2023 at 4:00 a.m. EDT
Attorney General Merrick Garland quickly released the results of special prosecutor John Durham's report on the FBI's investigation of the Donald Trump campaign's possible collusion with Russia in 2016. (Bill O'Leary/The Washington Post)
Attorney General Merrick Garland’s handling of special counsel John Durham’s report Monday differed starkly from that of his predecessor, William P. Barr, who was criticized in 2019 by former federal law enforcement officials and Democrats for his handling of a final report from then-special counsel Robert S. Mueller III. Sign up for Fact Checker, our weekly review of what's true, false or in-between in politics.
The long-awaited report from Durham moved far faster from Garland’s desk to Congress — and the public — than Mueller’s report did four years earlier.
At the time, officials said the delay was because redactions had to be made to Mueller’s 448-page report, largely to remove information about ongoing investigations or prosecutions. The 306-page Durham report was written differently, as an unclassified document with a 29-page classified appendix that has not been made public. And there are no known ongoing investigations from Durham’s work.
A former U.S. attorney from Connecticut, Durham was asked to examine whether anyone at the FBI violated laws while investigating the 2016 Trump campaign — essentially an investigation of the probe that Mueller inherited in 2017.
Nor did Durham’s investigation find sizable criminal culpability. The two cases he brought to trial ended in acquittals. One former FBI lawyer agreed to plead guilty to a charge that carried no jail time.
The end of Durham’s special counsel assignment — almost four years to the day after he was appointed by Barr — drew immediate comparisons to the fractious finale of Mueller’s work.
After receiving Mueller’s report in the spring of 2019, Barr issued a brief memo describing its principal conclusions, but it took weeks for the bulk of Mueller’s actual findings to become public. In the meantime, President Donald Trump publicly declared victory, Mueller privately complained to Barr that his memo lacked context, and when the Mueller report was finally released and Mueller’s complaints became known, Barr faced a fresh round of criticism for his handling of the issue.
Garland received the Durham report on Friday and sent it to congressional leaders on Monday, shortly before the entire document was shared with reporters and posted online. He did not offer his own analysis or summary.
“The difference in the rollout was stark,” said Mary McCord, who served as acting assistant attorney general for national security during President Barack Obama’s administration and headed the department for the first several months of the Trump presidency. “Garland did what he said he would do when he maintained the special counsel appointment of Durham. He let him continue his work independent of the department.”
By contrast, she said, Barr’s memo “was a deceit on the American people.”
Anthony Coley, a former Justice Department spokesman for Garland, said the attorney general “played it by the book — minimum redactions, quick release of the total report — and left the public to draw its own conclusion. That’s how it should be done.”
Garland faced a challenge of “landing Barr’s plane — this politically motivated investigation that was meant to appease a sitting president — and to do so in a way that didn’t further politicize the department,” Coley said.
Barr did not immediately return a call seeking comment. A Justice Department spokeswoman declined to comment.
While Democrats were quick to dismiss the Durham report, noting the lack of new revelations, Republicans seized on it in an effort to make the case for additional disclosures about FBI investigations related to President Biden’s family.
Sen. Charles E. Grassley (R-Iowa) said in a written statement that the report “validates the concerns I’ve raised since we first learned of the bogus investigation in 2017. The FBI allowed itself to be hijacked and weaponized by political actors to target a political rival during a presidential election and administration. Restoring its integrity, if that’s even possible, will take humility, transparency and accountability.”
The FBI said in a statement that it had already implemented “dozens of corrective actions, which have now been in place for some time. Had those reforms been in place in 2016, the missteps identified in the report could have been prevented. This report reinforces the importance of ensuring the FBI continues to do its work with the rigor, objectivity, and professionalism the American people deserve and rightly expect.”
Frank Figliuzzi, a former FBI assistant director for counterintelligence, called the Durham investigation a failure, but said he expects Republicans to use snippets of the report to claim victory and portray the FBI negatively.
“If the goal was those multiple indictments, he failed miserably,” Figliuzzi said, alluding to past predictions by Trump that the probe would uncover significant crimes. “The consolation seems to be sound bites in a political product for Fox News.”
Partisan fights over how the Justice Department investigates politicians are nothing new. But the stakes have grown significantly in recent years, as prosecutors and agents have conducted high-profile inquiries into presidential candidates, from Hillary Clinton to Trump to Biden.
In 2019, Barr revealed that Mueller did not find a conspiracy between the Trump campaign and Russian officials seeking to interfere with the 2016 presidential election. Barr also said that Mueller had not reached a conclusion about whether Trump had tried to obstruct justice, but that Barr reviewed the evidence and determined it was insufficient to support such a charge. That determination, in particular, rankled Democrats, who viewed it as prejudging a question that Mueller may have meant for Congress to consider.
[Insert: Remember Mueller didn't find conspiracy, but he did outline plenty of collusion between Putin's people and members of the Trump campaign. ]
Days after Barr’s memo was released, Mueller wrote to the attorney general, complaining that the memo “did not fully capture the context, nature, and substance” of his team’s work.
The letter urged Barr to quickly release the 448-page report’s introductions and executive summaries, and made initial suggested redactions for doing so.
Republican lawmakers are seeking to have Durham testify about his findings, perhaps next week. So far, there does not seem to be the kind of tension that marked the previous special counsel report. In a letter sent to Garland on Friday along with the report, Durham thanked the attorney general for “permitting our inquiry to proceed independently.”
Devlin Barrett writes about the FBI and the Justice Department, and is the author of "October Surprise: How the FBI Tried to Save Itself and Crashed an Election." He was part of reporting teams that won Pulitzer Prizes in 2018 and 2022. In 2017 he was a co-finalist for the Pulitzer for Feature Writing and the Pulitzer for International Reporting. Twitter
Perry Stein covers the Justice Department and FBI for The Washington Post. She previously covered D.C. education. Before she joined The Post in 2015, she was a staff writer for Washington City Paper and wrote for the Miami Herald. Twitter
How Barr’s Quest to Find Flaws in the Russia Inquiry Unraveled
The review by John Durham at one point veered into a criminal investigation related to Donald Trump himself, even as it failed to find wrongdoing in the origins of the Russia inquiry.
By Charlie Savage, Adam Goldman and Katie Benner Jan. 26, 2023
WASHINGTON — It became a regular litany of grievances from President Donald J. Trump and his supporters: The investigation into his 2016 campaign’s ties to Russia was a witch hunt, they maintained, that had been opened without any solid basis, went on too long and found no proof of collusion.
Egged on by Mr. Trump, Attorney General William P. Barr set out in 2019 to dig into their shared theory that the Russia investigation likely stemmed from a conspiracy by intelligence or law enforcement agencies. To lead the inquiry, Mr. Barr turned to a hard-nosed prosecutor named John H. Durham, and later granted him special counsel status to carry on after Mr. Trump left office.
But after almost four years — far longer than the Russia investigation itself — Mr. Durham’s work is coming to an end without uncovering anything like the deep state plot alleged by Mr. Trump and suspected by Mr. Barr.
Moreover, a monthslong review by The New York Times found that the main thrust of the Durham inquiry was marked by some of the very same flaws — including a strained justification for opening it and its role in fueling partisan conspiracy theories that would never be charged in court — that Trump allies claim characterized the Russia investigation.
Under Trump, Barr and Durham Made a Mockery of the Rules I Wrote
Feb. 14, 2023
Special counsel John Durham. Samuel Corum for The New York Times
By Neal K. Katyal Mr. Katyal is a professor at Georgetown University Law Center, and a co-author of “Impeach: The Case Against Donald Trump.” He was an acting solicitor general in the Obama administration.
The recent revelations .. https://www.nytimes.com/2023/02/01/us/politics/durham-barr-russia-investigation.html .. about the special counsel John H. Durham’s investigation of the origins of Robert Mueller’s Russia inquiry paint a bleak picture — one that’s thoroughly at odds with governing law. Those rules, called the special counsel regulations, contemplate someone independent of the attorney general who can reassure the public that justice is being done.
I drafted those guidelines as a young Justice Department official, and there is zero chance that anyone involved in the process, as it was reported on by The New York Times, would think that former Attorney General William Barr or Mr. Durham acted appropriately.
According to the report, Mr. Barr granted Mr. Durham special counsel status to dig into a theory that the Russia investigation likely emerged from a conspiracy by intelligence or law enforcement agencies. That investigation has taken almost four years (longer than Mr. Mueller’s inquiry) and appears to be ending soon without any hint of a deep state plot against former President Donald Trump.
Furthermore, the reporting suggests that the Durham inquiry suffered from internal dissent and ethical disputes as it lurched from one unsuccessful path to another, even as Americans heard a misleading narrative of its progress.
But now Merrick Garland, not Mr. Barr, is the attorney general, and the regulations give him the power to require Mr. Durham to explain himself — and to discipline and fire Mr. Durham if the explanation is not adequate. Right now, there are a plethora of investigations in Washington — in addition to Mr. Durham’s, two special counsels are looking into presidential handling of classified documents, the new Republican House of Representatives has created a “weaponization” of government committee and the new House Oversight Committee is ramping up as well.
At this moment, it is critical for Mr. Garland to use the supervisory powers under the special counsel regulations that govern Mr. Durham to remind Americans of what actual justice, and independent investigations and decision making, look like.
The special counsel regulations say that a special counsel must have “a reputation for integrity and impartial decision making” and that, once appointed, the counsel “shall not be subject to the day-to-day supervision” of the attorney general or any other Justice Department official.
The point of the regulations was to create a strong degree of independence, especially in highly fraught political investigations where the attorney general’s status as a presidential appointee might cause the public to question the appearance of partiality. The appointment of Robert Hur, a former Trump-appointed U.S. attorney, to examine President Biden’s handling of classified documents is a perfect illustration. The special counsel is supposed to be someone who cannot be reasonably accused of laundering an attorney general’s dirty work.
In light of the new reporting, it is hard to view Mr. Durham as anything else. Indeed, no one involved in developing these regulations thought that a prosecutor who has regular Scotch-sipping sessions with the attorney general would ever be remotely fit for the job. Yet that was the relationship .. https://www.nytimes.com/2023/01/26/us/politics/durham-trump-russia-barr.html .. reportedly developed by Mr. Durham and Mr. Barr, who jetted as a team off to Italy, where they learned of a lead about President Trump and potential criminal acts. Mr. Barr gave that investigation, too, to Mr. Durham, where it appears to have died.
The regulations were set up to avoid a headless fourth branch of government, and so gave the attorney general the power to discipline or fire a special counsel. The Justice Department inspector general, too, should immediately begin an investigation, as members of Congress have recently requested .. https://www.nytimes.com/2023/02/01/us/politics/durham-barr-russia-investigation.html .
The regulations also require Mr. Durham to write a final report outlining his actions. Mr. Garland should call for that report immediately, and if Mr. Durham claims he has some ongoing work to do, he should be told to submit an interim report for Mr. Garland.
That report should go into detail about the Italy-focused investigation of Mr. Trump and what the investigators found. And Mr. Garland should scrutinize that report closely, because it certainly appears that we can’t trust Mr. Durham’s prosecutorial judgment. Mr. Barr has said that the Italian tip “was not directly about Trump” and that it “turned out to be a complete nonissue,” but given his and Mr. Durham’s many failures and obfuscations, there is a need for more than Mr. Barr’s word.
Remember, Mr. Durham tried to prosecute Michael Sussmann, a former lawyer for Hillary Clinton’s campaign, but the jury acquitted him. He then tried to prosecute Igor Danchenko about the Steele dossier, but that prosecution led to an acquittal, too.
As many lawyers will tell you, a federal prosecutor almost has to go out of his way to be 0-2 in federal jury trials. Mr. Durham managed to do it. (His only measly conviction was a minor plea for a low-level F.B.I. lawyer.) Still, Mr. Durham’s failures in court do not show a violation of the special counsel regulations. They just show bad judgment.
Attorney General William Barr with Donald Trump in front of the Capitol building in 2019. Doug Mills/The New York Times
Mr. Garland knows all this, so he should demand a report — though this would not be the sort of report that should be automatically made public. It may very well be that the investigation into Mr. Trump off the Italian lead fizzled because there was nothing to the allegations. If so, Mr. Garland can say that he is refusing to make the report public but that he has looked into the matter and is satisfied by Mr. Durham’s resolution of it.
That, too, is something the special counsel regulations contemplated — they were drafted after the Starr Report and its gratuitous tarnishing of individuals, and so they made clear the special counsel’s report need not be public. (More recently, James Comey tarnished Hillary Clinton in a similar way, underscoring the need for the Justice Department to speak through indictments, not public attacks.)
Unfortunately, Mr. Durham and Mr. Barr allowed a misleading narrative to gain traction in public. When news organizations began to report in October 2019 that Mr. Durham’s investigation had morphed from an administrative inquiry into a criminal investigation, creating the misimpression that there might have been criminal wrongdoing by those involved in the Russia investigation, neither man corrected the narrative, even though the real investigation involved Mr. Trump.
The Trump administration dealt an awful blow to the notion of a fair investigation. Mr. Trump’s playbook was to relentlessly attack the investigators.Yet foundational to our government is the notion that no one is above the law.
Assuming the reporting is accurate, Mr. Barr and Mr. Durham behaved in a way that betrayed this bedrock principle. The question of who guards the guardians has plagued democracies since Juvenal [ https://en.wikipedia.org/wiki/Juvenal ]. If Mr. Durham were not acting with the independence required for the position, it corrodes the rule of law and opens the door to the perception, if not the reality, of special treatment for the politically powerful.
Mr. Garland has the power now to examine the accuracy of the reporting and to take the corrective action necessary to ensure that no adverse precedent is set for future investigations into high-level wrongdoing.
Neal K. Katyal is a professor at Georgetown University Law Center and a co-author, with Sam Koppelman, of “Impeach: The Case Against Donald Trump.” He was an acting solicitor general in the Obama administration.
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