In 1998, U.S. Attorney for Massachusetts Donald Stern needed someone to look into allegations that the FBI had been protecting mob leaders in Boston. One of them was Irish mob boss James “Whitey” Bulger. This was a big case, involving potential misdeeds by high-ranking federal law enforcement agents. And Stern knew who he wanted.
“We didn’t go to Washington with a list,” Stern later told the Associated Press. “We went to Washington and said, ‘We want John Durham to do it.' ”
John Durham did it. The new special prosecutor’s work would lead to the overturning of four 1968 murder convictions after he unearthed secret documents revealing an FBI informant had framed the men. By 2002, he secured the conviction of retired FBI agent John Connolly, who had protected Bulger and top associate Stephen “The Rifleman” Flemmi. (Connolly tipped off Bulger ahead of his 1995 indictment, allowing him to flee. Bulger would evade arrest until 2011.) The investigation also led to another indictment of a retired FBI agent, but the agent died before trial.
Two decades later, Durham is again being called upon to investigate allegations of FBI wrongdoing, this time when it comes to surveillance of members of the 2016 Trump campaign. Republicans have alleged such a conspiracy for the past two years, and they’ve finally found a receptive attorney general, William P. Barr. We learned Monday that Barr had tapped Durham to look into the matter.
Durham comes to the job with what is by almost all accounts a sterling decades-long career as a prosecutor. Though he was nominated to his current post as the U.S. attorney for Connecticut by President Trump, he has been selected by both Republican and Democratic administrations to conduct high-profile investigations involving alleged wrongdoing by the federal government.
After Bill Clinton’s attorney general, Janet Reno, selected him for the Boston mob case, George W. Bush’s attorney general, Michael Mukasey, picked him in 2008 to look into the destruction of CIA interrogation tapes. The next year, Barack Obama’s attorney general, Eric Holder, expanded Durham’s probe to look into potential criminal charges against CIA officials who employed “enhanced interrogation techniques.”
Unlike in Boston, neither case led to any criminal charges. In the latter investigation, Durham recommended closing all but two cases without filing charges, leaving some critics of the Bush administration’s interrogation practices disappointed.
Through it all, Durham has maintained a remarkably low profile, seldom speaking outside of a courtroom. The New Republic in 2011 named him one of “Washington’s Most Powerful, Least Famous People.” His pedigree of investigating public corruption includes a case that landed the former governor of Connecticut, John Rowland, in jail. Rowland, like Durham, is a Republican.
The high point in his career, though — and the one most applicable to today — was the Boston mob case.
“I think that he proved that he wasn’t there simply to whitewash the FBI misconduct,” Boston criminal defense lawyer Anthony Cardinale told the Boston Globe in 2008. “If it’s the right call, he’s going to make it no matter who it hurts or helps.”
In 2001, then-FBI Director Louis J. Freeh called the scandal “a very sad chapter in the history of this agency.” A congressional committee in 2003 issued a scathing report labeling it “one of the greatest failures in the history of federal law enforcement.”
The matter even tangentially involved Robert S. Mueller III. He was an assistant U.S. attorney in Boston in the 1980s, even serving as acting U.S. attorney when Bulger was informing. Mueller succeeded Freeh as FBI director in 2001 when the scandal was still coming to light. While reforms were instituted governing the use of informants, Mueller emphasized, “I think the public should recognize that what happened, happened years ago.”
Durham will now be probing the beginnings of an investigation which was eventually handed over to Mueller, who was appointed as a special counsel. Barr has drawn criticism for using Trump’s talking point that the FBI was “spying” on the Trump campaign — a characterization FBI Director Christopher A. Wray recently took issue with.
The Mueller report states that the Russia investigation was initially launched based upon Trump campaign adviser George Papadopoulos telling a foreign official that Russia had dirt on Trump’s 2016 opponent, Hillary Clinton. Republicans have also cried foul that the so-called “Steele dossier” — a document full of unverified claims that was funded in part by Clinton and the Democratic National Committee — was used to get a warrant to surveil then-former Trump campaign adviser Carter Page in late 2016. The FBI also used an informant to contact Trump campaign aides, including Papadopoulos.
Because of his limited public comments, it’s difficult to ascertain much about Durham’s prosecutorial philosophy when it comes to public corruption. In 2001, he urged reporters to talk to other people involved in the Boston mob case, not him. In 2002, he issued a brief statement after Connolly’s conviction, saying, “Nobody in this country is above the law, an FBI agent or otherwise, and ultimately the ends do not justify the means.”
But in 2018, he gave a rare speech at the University of St. Joseph. In the process of recounting the Boston mob case, he spoke to the pitfalls and the “two-edged sword” of informants.
“The damage that can be done when law enforcement or prosecutors misuse these tools is difficult to overstate,” he said. “And we unfortunately have seen it in some recent instances.”
Now Durham is charged with figuring out whether that applies here.