The significance of officials deeming Durham’s probe “criminal” is difficult to determine by itself. Durham’s appointment was noteworthy because he, unlike the inspector general, is a federal prosecutor with the ability to convene a grand jury that could compel witnesses to testify or charge people with crimes if Durham felt that was necessary.
It was not immediately clear whether officials’ consideration of his work as criminal represented a shift in the seriousness of his investigation or whether a grand jury had been convened. People familiar with the probe declined to say when precisely officials gave it that designation, what specific crimes or people Durham was homing in on, or what evidence he has found. They, like others in this story, spoke on the condition of anonymity to talk about an ongoing investigation.
Federal law enforcement generally needs some indication a crime has occurred to open a criminal investigation — though the standard for doing so is low, and the decision is not reviewed by a court.
Spokespeople for the FBI and Justice Department declined to comment.
Trump’s allies noted that the designation of Durham’s probe as criminal — first reported Thursday night by the New York Times — was a possible indication the well-respected federal prosecutor has found evidence of wrongdoing.
“Those who damaged America and broke the law to spread this hoax are about to face accountability,” Rep. Mark Meadows (R-N.C.) tweeted.
The president’s opponents argued the development shows Durham’s work has been politicized. In recent months, Trump and Barr have made efforts to get other countries to cooperate in the prosecutor’s investigation.
"These reports, if true, raise profound new concerns that the Department of Justice under AG Barr has lost its independence and become a vehicle for President Trump’s political revenge," House Judiciary Committee Chairman Jerry Nadler (D-N.Y.) and House Intelligence Committee Chairman Adam Schiff (D-Calif.) said in a joint statement. "If the Department of Justice may be used as a tool of political retribution, or to help the President with a political narrative for the next election, the rule of law will suffer new and irreparable damage."
The Washington Post reported last month that Barr traveled overseas to make personal overtures to British and Italian intelligence officials. Trump also urged Australian Prime Minister Scott Morrison to provide assistance to the Justice Department investigation, according to people familiar with the matter.
In Italy, people familiar with the matter said, Barr asked intelligence officials about Joseph Mifsud, a mysterious European professor whose conversation with an adviser to Trump’s 2016 campaign helped launch the FBI investigation into possible coordination with Russia.
Some conservatives have adopted an unproven theory that Mifsud was working to set up the Trump campaign when he boasted to campaign adviser George Papadopoulos about having “dirt” on Hillary Clinton in the form of “thousands of emails” — before Russia’s hacking of Democrats was publicly known. When the FBI learned of that conversation some months later, it opened a case.
Papadopoulos has asserted Mifsud is “an Italian intelligence asset who the CIA weaponized.” Italian officials, though, told Barr they had no involvement in the matter.
In May, Trump ordered U.S. intelligence agencies to cooperate with the Justice Department’s examination of the Russia probe. Durham has interviewed some of those involved in the investigation — though he has not yet talked to many who would seem to be major players.
Former CIA director John Brennan told NBC News recently that Durham had expressed his intent to interview him and a number of current and former intelligence officials involved in the Russia case, including former director of national intelligence James R. Clapper Jr.
Justice Department Inspector General Michael Horowitz, meanwhile, has completed his investigation of the Russia case, and his report is being reviewed by Barr and others to determine what can be released publicly. On Thursday, Horowitz notified lawmakers that review was “nearing completion,” and he did not expect to need to produce both a classified and unclassified version of his report.
How Horowitz’s probe dovetailed with Durham’s was not immediately clear. Often the inspectors general will refer their work to federal prosecutors to conduct their own inquiries to determine whether any crimes have been committed.