Lawfare blog editor Ben Wittes did an analysis about the recent failure of special counsel John Durham to meet any of the aims outlined as part of his appointment as an investigator. After three years and millions of dollars, Durham lost his only case in the probe, against a lawyer from the firm hired by Hillary Clinton.
Wittes explained that it didn't come as a shock to most legal experts because, "the case was fundamentally about displacing the conventional worldview associated with the Trump scandals and establishing the respectability of the insurgent Trumpist counter-narrative…as with the effort to convict [lawyer Michael] Sussmann, Durham has failed."
For many Republicans in Trump World, the case wasn't about whether Sussmann was speaking to the FBI on behalf of the Clinton campaign, but it was about whether the entire investigation by special counsel Robert Mueller was a lie.
"Obama knew everything," Trump told Fox in Aug. 2020. "Vice President Biden, as dumb as he may be, knew everything, and everybody else knew. And [former FBI Director James] Comey, and [former CIA Director John] Brennan, and [former Director of National Intelligence James] Clapper, they were all terrible, they lied to Congress. They spied on my campaign, which is treason. They spied, both before and after I won, using the intelligence apparatus of the United States to take down a president, a legally elected president, a duly elected president of the United States. It is the single biggest political crime in the history of our country."
"We caught them all,” Trump said in Dec. 2020, after losing the election. "We’re still waiting for a report from a man named Durham who I’ve never spoken to and never met. They can go after me before the election as much as they want, but unfortunately, Mr. Durham didn’t want to go after these people…before the election, so who knows if he’ll ever even do a report."
"Where’s John Durham?" Trump asked in a March 2021 statement. "Is he a living, breathing human being? Will there ever be a Durham report?"
Durham couldn't prove any of the accusations that Trump ranted about over the past several years. In fact, one claim by Trump, that he was spied on in the White House after taking office, was actually disproven by Durham's evidence. Another Republican claim about Michael Flynn was disproven by his own attorney general, Bill Barr.
He recalled writing in Sept. 2021 that Durham's indictment was "one of the very weakest federal criminal indictments I have ever seen in more than 25 years covering federal investigations and prosecutions." The trial proved his assessment.
The experience of the trial itself only reinforced that impression. When the jury went into deliberations last week, he tweeted, “I would be stunned to see a conviction. And I would not be surprised at all to see an acquittal—even a fast one."
Wittes wrote that his main takeaways from watching the trial and reading through the evidence were that Durham's case was "beneath the standards of reasonable federal prosecution." It was a similar take by other legal analysts who responded to the news by saying that it was the perfect example of prosecutorial overreach and a politically motivated investigation.
Finally, Wittes pointed out that Durham's aim was to legitimize Trump's conspiracy theories.
One of the major challenges for Durham was that he couldn't get his witnesses on the same page. The key witness that testified about what Sussmann told the FBI seemed to evolve over time. Sussmann's defense attorneys made it clear that such a problem was enough to acquit. The late admission of text message exchanges made it clear that Sussmann was telling the FBI he wanted them to have the information and he was approaching them for that reason, not for Clinton.
Durham was never able to prove that Sussmann went to the FBI as part of some Clinton conspiracy to destroy Donald Trump one month before the election. Meanwhile, Clinton's general counsel and campaign manager both testified that they didn't tell Sussmann to speak to the FBI. In fact, they testified that they were talking about making the information public for use by the campaign. Reporting it to law enforcement was the anthesis of that. Elias explained that going to law enforcement would mean the story wouldn't get out in time for the election.
Trump responded to Durham's loss by trashing the federal grand jury as corrupt liberals. His attacks were parrotted by his eldest son and Fox hosts.
