The Washington PostDemocracy Dies in Darkness

What if — and bear with me here — John Durham doesn’t have the goods?

Special counsel John Durham, the prosecutor appointed to investigate potential government wrongdoing in the early days of the Trump-Russia probe, arrives at federal courthouse in Washington on May 16. (Manuel Balce Ceneta/AP)
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The last time anyone saw them, the goal posts were about three miles due west of Ottumwa, Iowa, having been dragged there, foot by painful foot, from their original position just outside of William P. Barr’s Justice Department.

Since Donald Trump first sought to undermine the investigation into whether any members of his 2016 campaign had knowledge of or worked with Russia’s effort to aid his candidacy, the goal posts have been in motion. Over and over, he and his allies presented some alternate explanation for the investigation that shifted all of the questions about legality and ethics onto his real and perceived opponents. Maybe what the media should really be looking at was unmasking Michael Flynn or the Peter Strzok text messages or the Carter Page warrant or the dossier from Christopher Steele or the machinations of Hillary Clinton’s competing campaign. I’ve probably forgotten a few.

In each of those endlessly elevated cases, the strategy was the same: take something either legitimately iffy or easy to perceive as iffy and reassemble the Russia probe on top of it. That the “real” triggers for the Russia investigation changed so much is pretty robust evidence that they were not the real triggers at all. An investigation centered on the obvious ties between Trump’s team and Russia — his campaign manager’s ties to Russian officials, an adviser who was already on the FBI’s radar taking a July 2016 trip to Moscow, another adviser getting an apparent heads-up on Russian hacking, his son’s interaction with a Kremlin-linked lawyer — was repeatedly cast as being about something else, something invariably harder to pin down.

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Nowhere was more institutional energy invested than in the formal investigation into the Russia investigation authorized by Barr more than three years ago. U.S. Attorney John Durham, later elevated to special counsel, was given a mandate to figure out where the Russia investigation came from and, as needed, to upend the conventional wisdom about its origins. And no one would argue that he’s shirked from that task, as he has regularly provided conservative media with new places to locate their shuffling goal posts. When the Justice Department inspector general released a lengthy report determining that the original Russia investigation was predicated on the available evidence, Barr and Durham quickly released a “not so fast”-style statement suggesting that the other shoe was yet to drop.

It was supposed to drop Tuesday morning. For months, Durham’s seemingly been building toward an argument that Clinton’s campaign bears central responsibility for the emergence of the Russia investigation. After indicting an attorney who worked for a firm hired by Clinton on charges that he lied to the FBI, Durham released little tidbits about what he and his team had learned, tidbits that could be interpreted to suggest that he was building a case not against the Russia probe but instead against Clinton.

You may recall, for example, when Durham earlier submitted a court filing implying that the attorney, Michael Sussmann, and his firm had approached federal investigators with electronic data that seemed as though it may have come from the Trump White House. This became the peg for various “Clinton spied on Trump’s presidency!!” takes, including from Trump. But it was not true: Sussmann had data about the apparent presence of unusual Russian cellphones near the White House but only while Barack Obama was president. If anything, it was exonerating, suggesting that Sussmann and the researcher with whom he was in contact were focused more on Russia’s activities than Trump’s. At another point, a Durham filing was interpreted to suggest that the data was somehow counterfeit. That also quickly evaporated.

What Durham’s team hoped to prove was that Sussmann had misled the FBI about working for Clinton as he sought to get them to investigate an unexplained connection between Trump’s private business and a Russian bank. Instead of providing the first significant reinforcement of the conspiracy theory that the Russia probe was downstream of Clinton’s efforts, though, a jury found that Durham didn’t prove his case.

Even if he had, though, it’s clear that this particular theory was not the spur for the Russia probe. By September 2016, when Sussmann met with the FBI, the bureau was already investigating individuals associated with Trump’s campaign and was already aware of Russia’s efforts to influence the election. This idea that Clinton was the trigger for all of it was clearly appealing; Trump’s administration had floated it about a month before the 2020 contest. When Clinton’s 2016 campaign manager Robby Mook testified during Sussmann’s trial that Clinton had approved the leak of the (dubious and quickly debunked!) claim about a Trump-bank connection, Trump’s allies again tried to reverse-engineer this into proof of Clinton’s overall culpability despite the obvious timeline problems. “The Russia probe was Clinton’s fault” appeals more than “there were real questions about Trump’s team and Russia.”

This is the point. It seems clear based on Barr’s public comments that he’s skeptical of how the Russia probe began, which is certainly his right. It also seems clear that Durham was tasked with proving that skepticism correct. That effort is not going well. For those orbiting Trump, it doesn’t matter. The investigation itself and any little part of it is enough to simply say that the point was proved, because (like the “stolen election” assertions) the belief is what’s concrete and the evidence for that belief what’s malleable and evolving.

Durham’s probe has become everything that Trump and his allies accused special counsel Robert S. Mueller III’s Russia investigation of being: a fishing expedition that’s gone on for an extended period of time without actually surfacing anything that significantly aids the central case. Mueller could point to dozens of indictments and a voluminous exploration of how Russia tried to swing the 2016 election two years into his assignment. Three years into Durham’s, he failed to obtain a conviction on his central line of attack.

To objective observers, there was always reason to be skeptical that Durham would be able to fulfill his mandate of proving that the Russia probe was dubious and, by unstated extension, that Trump was right all along. It seems far more unlikely now.

Here’s hoping the goalpost-movers have stayed in shape.

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