Special counsel John Durham, who once enjoyed a solid reputation as a prosecutor, now owns what may be the worst trial record of any special counsel or independent prosecutor in American history: no wins, two losses.
Durham’s ignominious record further tarnishes the reputation of former Attorney General William Barr,
Durham’s ignominious record further tarnishes the reputation of former Attorney General William Barr, the man who brought Durham to Washington in May 2019 and gave him the job of trying to poke holes in the FBI’s 2016 Trump-Russia investigation. Just before his exit from the Trump administration in December 2020, Barr protected Durham from removal by elevating him from a U.S. attorney within the Justice Department to the more protected role of special counsel.
On Tuesday, Durham suffered his second straight trial loss. A D.C. jury acquitted Igor Danchenko on all four remaining counts in Durham’s 2021 indictment for making false statements to the FBI. Last Friday, Oct. 14, the federal judge overseeing the case tossed the first count as unsupported by the evidence.
Durham’s previous defeat came in May, when another D.C. jury acquitted Michael Sussmann, the one-time Clinton campaign lawyer. As in Danchenko’s trial, Durham failed to convict Sussmann of making false statements to the FBI.
To be sure, in 2020 and before being named special counsel, Durham notched a guilty plea, that of Kevin Clinesmith, the one-time FBI agent who lied to a court about Trump campaign aide Carter Page. Failing to secure a plea here would have been somewhat shocking, however; eight months earlier, DOJ Inspector General Michael Horowitz painstakingly cataloged the evidence of Clinesworth’s misconduct.
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Fast forward to Durham’s current loss. The special counsel was trying to prove that Danchenko had lied about information that he provided the FBI about the so-called Steele dossier. The bureau’s investigation of Donald Trump started with sources independent of that dossier and did not rely on it, as The New York Times reported. Fox News hosts, however, do not like or accept that record. And as the Washington Post’s Philip Bump writes, while unproductive, Durham’s prosecution of Danchenko has certainly helped MAGA supporters and Trump continue to circulate and repackage old conspiracies.
And therein lies the reason underlying Durham’s losing trial record. He has done what prosecutors are duty-bound to avoid: using the criminal courts to amplify a false political narrative.
He has done what prosecutors are duty-bound to avoid: using the criminal courts to amplify a false political narrative.
In effect, it seems like Durham’s assignment from Barr was to become the courthouse arm of Trump’s meme that the FBI’s work was a “witch hunt.” It would be wildly naïve to say that he was simply following the facts.
On Monday, during Durham’s closing argument against Danchenko, the special prosecutor made a point of rebuking the FBI’s 2016 investigation. He called the FBI “the elephant in the room.” As reported by the Washington Examiner, Durham argued that “the FBI failed here,” “mishandled the investigation” and “didn’t do what [it] should have done.”
During the trial last week, Durham attacked both of the FBI agents he put on the stand. He did so after those agents, on cross-examination, testified that Danchenko had been a valuable source of information. It would be an understatement to label a trial strategy that treated FBI agents as hostile witnesses as “unique” in the annals of DOJ prosecutions.
Durham also joined Barr’s attack on his own department’s independent inspector general after the IG’s 2019 report concluded that the FBI had legitimately initiated the Trump-Russia investigation. “We advised the Inspector General that we do not agree with some of the report’s conclusions as to ... how the FBI case was opened,” Durham wrote.
Nonpartisan federal prosecutors just don’t do such things.
We also know that in September 2020, Nora Dannehy, Durham’s highly regarded aide, resigned from his team without public explanation. The Hartford Courant reported her concern about “pressure from Barr ... to produce results before the election.”
Durham, however, stuck with Barr. And it is really Barr’s career that is most undermined by the special counsel’s clear fail. Durham’s work casts yet another dark shadow on the man who was his patron. And Barr’s energetic attempts after Jan. 6 to rehabilitate his image cannot erase his sad final legacy as a Trump enabler.