Special counsel John Durham has issued a long-awaited report that sharply criticizes the FBI for investigating the 2016 Trump campaign based on “raw, unanalyzed, and uncorroborated intelligence” — a conclusion that may fuel rather than end partisan debate about politicization within the Justice Department and FBI.
The report, coming almost four years to the day since Durham’s assignment began, will probably be derided by Democrats as the end of a partisan boondoggle. Republicans will have to wrestle with a much-touted investigation that has cost taxpayers more than $6.5 million and didn’t send a single person to jail, even though Trump once predicted that Durham would uncover the “crime of the century.”
On Monday, Trump nevertheless claimed victory, posting on social media that the report showed “the American Public was scammed, just as it is being scammed right now by those who don’t want to see GREATNESS for AMERICA!”
Much of the FBI conduct described by the Durham report was previously known and had been denounced in a 2019 report by the Justice Department’s inspector general, which did not find “documentary or testimonial evidence of intentional misconduct.”
Durham goes further in his criticism, however, arguing that the FBI rushed to investigate Trump in a case known as Crossfire Hurricane, even as it proceeded cautiously on allegations related to then-Democratic presidential candidate Hillary Clinton. In particular, the report notes that while the FBI warned Clinton’s team when agents learned of possible evidence by a foreign actor to garner influence with her, agents did not give a similar defensive briefing to the Trump campaign before quickly launching an investigation.
The FBI’s handling of key aspects of the case was “seriously deficient,” Durham wrote, causing the agency “severe reputational harm.” That failure could have been prevented if FBI employees hadn’t embraced “seriously flawed information” and instead followed their “own principles regarding objectivity and integrity,” the report said.
As examples of confirmation bias by the FBI, Durham cites: the FBI decision to go forward with the probe despite “a complete lack of information from the Intelligence Community that corroborated the hypothesis upon which the Crossfire Hurricane investigation was predicated”; agents ignoring information that exonerated key suspects in the case; and the FBI being unable to corroborate “a single substantive allegation” in a dossier of Trump allegations compiled by British former spy Christopher Steele.
Durham’s appointment as special counsel was unusual, in that Barr essentially tasked him with investigating the work done for a prior special counsel: Robert S. Mueller III. Durham’s probe produced paltry results in court: Two people that he charged with crimes were found not guilty, while a former FBI lawyer pleaded guilty to altering an email used to help a colleague prepare a court application for surveillance of a Trump adviser.
After the second acquittal last year, Democrats and some lawyers urged the Justice Department to shut down Durham’s office as a waste of taxpayer money and time.
The report issued Monday said Durham and his team conducted more than 48o interviews, reviewed more than 1 million documents, executed seven search warrants and, with a grand jury, served more than 190 subpoenas.
It ended with a short recommendation for the FBI: Create a position for an FBI agent or lawyer to provide oversight of politically sensitive investigations. That person would be tasked with challenging every step of such investigations, including whether officials appropriately adhered to the rules governing applications to the Foreign Intelligence Surveillance Court, which handles matters of national security.
After the inspector general’s 2019 report criticizing the FBI’s conduct, Director Christopher A. Wray implemented many changes at the agency, which has been at the center of fierce political debates since the 2016 election.
The senior FBI officials who ran the Crossfire Hurricane investigation left the agency years ago. But they have long said the bureau had a duty to investigate the allegations against the Trump campaign.
Durham sent his report to Attorney General Merrick Garland on Friday, and Garland sent it to top members of the Senate and House judiciary committees on Monday afternoon, a Justice Department official said. The report contains no classified information, and Garland told lawmakers he released the report with no “additions, redactions, or other modifications.” Garland did not submit to Congress a 29-page classified appendix but said he would arrange for members to view it.
In a statement responding to the report, the FBI said the conduct in 2016 and 2017 that Durham examined “was the reason that current FBI leadership 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.”
A longtime federal prosecutor who was U.S. attorney in Connecticut during the Trump administration, Durham had previously taken on politically sensitive investigations in Washington — including cases involving the CIA and the FBI. But the special counsel appointment was his highest profile and most politically charged undertaking.
When the inspector general, Michael Horowitz, issued his findings in 2019, Durham took the unusual step of publicly disagreeing with him on a key point — disputing Horowitz’s finding that the decision to open the investigation into Trump’s campaign was justified.
“Based on the evidence collected to date, and while our investigation is ongoing, last month we advised the Inspector General that we do not agree with some of the report’s conclusions as to predication and how the FBI case was opened,” Durham said at the time.
Yet on Monday, he appeared to back away from that criticism, writing “there is no question that the FBI had an affirmative obligation to closely examine” allegations brought to the agency by an Australian diplomat who told them of alarming statements made over drinks by a low-level Trump adviser, George Papadopoulos.
Durham’s report suggests he thinks the FBI should have opened a preliminary investigation, rather than a full investigation, based on the Australian’s tip. The report highlights a conversation between two FBI officials at the time who appeared to bemoan the weakness of the new case.
“Damn that’s thin,” wrote one FBI official in early August 2016. “I know,” replied another, “it sucks.”
Durham’s final report comes against a backdrop of two failed prosecutions. Igor Danchenko — a private researcher who was a primary source for a dossier of allegations about Trump’s alleged ties to Russia — was acquitted in October of lying to the FBI about where he got his information. Durham personally argued much of the government’s case in that trial, in federal court in Alexandria.
Last year, a jury in D.C. federal court acquitted cybersecurity lawyer Michael Sussmann, whom Durham also had charged with lying to the FBI. A former FBI lawyer, Kevin Clinesmith, was sentenced to one year of probation after admitting in a 2020 plea deal with Durham that he had altered a government email used to justify secret surveillance of a former Trump campaign adviser, Carter Page.
The report means Durham’s time as a special counsel is coming to an end, while two other special counsels continue: one to investigate Trump and people close to him for classified documents found at his home, as well as events leading up to the Jan. 6, 2021, riot at the U.S. Capitol, and another to investigate President Biden and people close to him for classified documents found at his home and office.