The Durham Investigation Ends with a Thud
Photo by United States Attorney’s Office, District of Connecticut, Public domain, via Wikimedia Commons
John Durham started his special counsel investigation into the FBI’s handling of the Trump-Russia allegations in 2019. Prior to the 2020 elections, Donald Trump and many of his allies seemed to expect an October surprise from Durham that would salvage Trump’s flagging campaign. Instead, Durham finally released his report this week.
Duraham’s investigation was based on the allegation that the FBI improperly investigated the Trump campaign and had engaged in illegal spying. At one point, the tinfoil hat crowd and QAnon adherents believed that Durham was part of the “Storm” that would sweep Trump’s opponents from Washington and usher in the millennial reign. Or something like that.
Instead, Durham only brought charges against three individuals and his final report criticizes the FBI but won’t cause any heads to roll. The one conviction netted by the report was FBI lawyer – not agent – Kevin Clinesmith, who admitted to doctoring an email that was used to support a FISA application for Carter Page, a campaign advisor to Donald Trump in 2016.
Two other indictments resulted in acquittals. Michael Sussman, a lawyer for the Hillary Clinton campaign, and Igor Danchenko, a private intelligence analyst who provided much of the Steele dossier, were both found not guilty of lying to the FBI.
The full Durham report, snappily titled, “Report on Matters Related to Intelligence Activities and Investigations Arising Out of the 2016 Presidential Campaigns,” is available on the Department of Justice website.
The report does criticize the FBI, but the criticism is based more on the agency’s acting on confirmation bias than on illegal activities. Durham found that the “speed and manner in which the FBI opened and investigated Crossfire Hurricane during the presidential election season based on raw, unanalyzed, and uncorroborated intelligence also reflected a noticeable departure from how it approached prior matters involving possible attempted foreign election interference plans aimed at the Clinton campaign.”
The report states that the “Department [of Justice] and the FBI failed to uphold their important mission of strict fidelity to the law in connection with certain events and activities” pertaining to the investigation of Trump campaign members.
It also points out that “senior FBI personnel displayed a serious lack of analytical rigor towards the information that they received, especially information received from politically affiliated persons and entities.”
“The Department did not adequately examine or question these materials and the motivations of those providing them, even when at about the same time the Director of the FBI and others learned of significant and potentially contrary intelligence,” the report continues.
In a Truth Social post, Donald Trump responded, saying, “WOW! After extensive research, Special Counsel John Durham concludes the FBI never should have launched the Trump-Russia Probe! In other words, the American Public was scammed, just as it is being scammed right now by those who don’t want to see GREATNESS for AMERICA!”
Reading between the lines, Durham says that there should have been an attempt to find better intelligence, but he stops far short of Trump’s claims. The report “does not recommend any wholesale changes in the guidelines and policies that the Department and the FBI now have in place to ensure proper conduct and accountability in how counterintelligence activities are carried out.”
The investigation cited a “lack of analytical rigor, apparent confirmation bias, and an over-willingness to rely on information from individuals connected to political opponents” that led to a lack of objectivity on the part of investigators.
Durham also faults the FBI for rationalizing away contradictory information, ignoring some exculpatory information, and failing to pursue investigations into leads that were not in line with the prevailing theories of the case. This is indicative of confirmation bias and groupthink. It’s bad police work but not illegal.
I do like a suggestion made at the end of the report to create a position for a “nonpartisan FBI agent or lawyer” to play devil’s advocate in challenging partisan investigations and FISA requests. This might solve the problem of overzealous investigations but not necessarily that of letting politicians get away with metaphorical or literal murder. We shouldn’t give politicians a free pass if there is evidence of wrongdoing, but we also shouldn’t allow partisans in government to investigate them without cause, whether intentionally or not.
Trump partisans will seize on the criticism of the FBI and claim that The Former Guy was right again and that yesterday’s conspiracy theory is tomorrow’s headline, but this is only partly correct. Frequently, Trump’s supporters seem to forget what he actually said by the time all the investigations are done and he is not going to remind them of the stuff that he missed the mark on.
So yes, there is evidence that the FBI investigators gave more credence to opposition research from the Clinton campaign than they should have, but that wasn’t the gist of Trump’s claims. Among other things, Trump claimed that “Obama had my ‘wires tapped’ in Trump Tower” and that “DOJ put a spy in the Trump campaign.”
Trump promised a scandal that would shake the government to its foundation, but evidence for these claims never materialized and that has not changed with the Durham report. As I’ve pointed out several times in the past (2017, 2019, and 2022), there was no federal spying on the Trump campaign. Instead, there was surveillance of former members of the Trump campaign such as Paul Manafort and Carter Page after they left the campaign. Page seems to have been innocent, but Manafort went to federal prison.
The flip side is that former FBI agent Peter Strzok tweeted a list of Trump associates that have been convicted, and then asked, “Point me to the confirmation bias here?”
The problem with Strzok’s interpretation of events is that two of the convictions he cites, Mike Flynn, George Papadopoulos, were for lying to federal agents, crimes that wouldn’t have been committed without the investigation. Manafort, Rick Gates, and Roger Stone, and Michael Cohen were undoubtedly dirty but were never convicted on charges related to conspiring with Russia to fix the election.
As with many incidents during the Trump era, it seems that neither side is entirely clean, but that the breathless sky-is-falling pronouncements of The Former Guy fall way short. The FBI wasn’t corrupt, but it also wasn’t blameless. There was also plenty of corruption to go around in the Trump campaign.
When presented with allegations that Trump had conspired with Russia, it would have been inappropriate to do nothing, but Durham makes the point that immediately revving up a full investigation was also inappropriate. A better solution would have been to vet the sources of the original claims and check the information being passed along.
I’ve said before that public officials need to avoid the appearance of impropriety. The actions of some agents didn’t rise to the point of being illegal, but they were improper and damaged the agency.
The people involved in Crossfire Hurricane seem to have mostly left the agency in the intervening years. That is appropriate.
I believe most liberals pointed out this outcome at the time.
I’m still at my table waiting for the crow eating to start.Report
Pity George isn’t here to admit he was wrong (I’m kidding, he’d be on to the next shiny right wing object).Report
Eh. What difference, at this point, does it make? Thou hast committed Fornication; but that was in another country, and besides, the wench is dead.
PS “we investigated ourselves and found that our only problem was that we cared too much about doing the best job possible”Report
Durham also faults the FBI for rationalizing away contradictory information, ignoring some exculpatory information, and failing to pursue investigations into leads that were not in line with the prevailing theories of the case. This is indicative of confirmation bias and groupthink. It’s bad police work but not illegal.
Could the bad police work have been the result of Chinese influence?Report
Bah. You say “rationalizing away contradictory information, ignoring some exculpatory information, and failing to pursue investigations into leads that were not in line with the prevailing theories of the case,” and I say “not wasting taxpayers’ money and agents’ time chasing foolish wild gooses down dry rabbit holes”. Get with the goddam program, Jaybird!Report
You know, police do a lot of very difficult things and we really should take into account the difficulty of what we’re asking them to do when we ask them to do the impossible.
At the very least, we should make sure that they’re well-funded, they have the resources they need, and they don’t have to put up with silly criticisms from Monday-morning quarterbacks.Report
Brilliant!Report
Personally I’m tickled by the recommendation of ‘neutral’ Devil’s Advocates picked from Dept. Agents or maybe even Lawyers(!) to help pop institutional bubbles.
Jenkins! You seem inscrutable; we’re putting you in charge of the Devil’s Advocates.
Thank you, sir.
It’s a GS10 position and there is no GS11 position in that dept. Do you hear what I’m saying?
Indeed, sir.
Now get out there and pop some bubbles.
Oh, pop pop, sir.
The sea change in our institutional democracy is the reformers getting hold of the institutions and deciding that they were working as intended.Report
And we can be pretty confident Al Capone did more than just cheat on his taxes but that’s what he got convicted of.Report
“The FBI wasn’t corrupt, but it also wasn’t blameless.”
Not corrupt? You quote that the “Department [of Justice] and the FBI failed to uphold their important mission of strict fidelity to the law in connection with certain events and activities”, and cite a “lack of analytical rigor, apparent confirmation bias, and an over-willingness to rely on information from individuals connected to political opponents”.Report
Incompetence ≠ Corruption
Failing to attain maximal competence ≠ IncompetenceReport
Failing to uphold strict fidelity to the law? Apparent confirmation bias?Report
p. 305:
Given the foregoing, and viewing the facts in a light most favorable to the Crossfire Hurricane investigators, it seems highly likely that, at a minimum, confirmation bias played a significant role in the FBI’s acceptance of extraordinarily serious allegations derived from uncorroborated information that had not been subjected to the typical exacting analysis employed by the FBI and other members of the Intelligence Community. In short, it is the Office’s assessment that the FBI discounted or willfully ignored material information that did not support the narrative of a collusive relationship between Trump and Russia. Similarly, the FBI Inspection Division Report says that the investigators “repeatedly ignore[d] or explain[ed] away evidence contrary to the theory the Trump campaign … had conspired with Russia …. It appeared that … there was a pattern of assuming nefarious intent.” An objective and honest assessment of these strands of information should have caused the FBI to question not only the predication for Crossfire Hurricane, but also to reflect on whether the FBI was being manipulated for political or other purposes. Unfortunately, it did not.Report
Yeah, sounds exactly like incompetence. Sounds exactly like what law enforcement and prosecutorial agencies do all the time.
In fact, it sounds exactly like how nearly all institutions vested with discretion in the face of complex and ambiguous facts behave, all the time.
Hanlon’s Razor is among the most useful items in your intellectual toolkit.Report
“sounds exactly like incompetence.”
and clearly we can’t expect much more from…who was doing this investigation, again? Barney and Opie from the Midlanowear, ND Police Department?Report
“Department [of Justice] and the FBI failed to uphold their important mission of strict fidelity to the law in connection with certain events and activities”
Okay, let me throw this out there:
In the absence of an exception scenario, policies and procedures are (typically) built off of avoiding historically bad things that have happened and reasonably predictable things that might happen in the future, so following them is a damn good idea… as a default.
In the *presence* of an exception scenario, following policies and procedures can be immediately contraindicated because – and hear me out here – those policies and procedures are built *without foreknowledge of the exception scenario, which often breaks numerous assumptions that the policies and procedures rely upon to work as intended*.
A silly example: you don’t let folks on a military base without an ID. Pretty bog standard policy, and it’s a good one to follow for lots of reasons – including when the guy that you know by sight is the base commander shows up at the gate and demands to be let in even though he doesn’t have his ID.
But, if that same guy showed up at the gate in a jeep with scorch marks and chunks of it bitten off, and the general says, “get out of my way, genetically engineered cyborg dinodragons are right behind me” and you look up and see one coming over the crest of the hill, maybe let the guy through without his ID, yes?
All of the policies and procedures about investigating political candidates during elections were built with decades of cases of people running for office. Lots of the sorts of guardrails have been erected since Eisenhower left office, and many presorting informal mechanisms that limited who got to “candidate” status.
In the specific cases of the Presidency, folks released their tax returns, divested from their companies or pre-made arrangements to do so if they won, had an established career in politics in almost all cases, had been vetted at multiple previous layers of election cycles.
Now here comes a guy who not only doesn’t do any of that, he’s saying *on an open mic at campaign rallies* “Hey Russia hack my opponent and send me the results”.
It would be *bananas* to treat him like everybody that came before him, an absolute dereliction of duty to just follow the policies and procedures that were designed to deal with guys like Jimmy Carter or Ronald Reagan or Mitt Romney or Barack Obama.
And regardless of what the FBI did (or didn’t) do, they were going to get real criticism… *and much of it would be fair in terms of what to do next time*, because not adapting your policies and procedures to a now-experienced-exception-scenario would be *just as bananas*.
But that doesn’t mean that (a) the breaking of the policies and procedures in this specific case wasn’t warranted and (b) that’s largely the fault not of the FBI but of the guy they were investigating, who broke all of the existing understood norms and rules.Report
“repeatedly ignore[d] or explain[ed] away evidence contrary to the theory the Trump campaign … had conspired with Russia”
A guy you don’t know shows up at the military base and says that dinodragons are right behind him, and you hear something that could be dinodragons or a lawnmower.Report
> He’s saying *on an open mic at campaign rallies* “Hey Russia hack my
> opponent and send me the results”.
Doesn’t sound like a lawnmower. Kinda sounds like someone intentionally trying to sound like a cyborg dinodragon whether he is one or not.
You’re gonna keep eliding over that, but it’s still there, m’man.
Keep pretending that’s normal.Report
Trump wasn’t normal. That comment about hacking was silly, but no, he wasn’t normal. So you send your experts and coordinate an investigation, right?
p. 68:
In terms of the analytical capabilities that were applied to Crossfire Hurricane, Lisa Page testified that the FBI used “line level analysts who [were] super experts on Russia.” The FBI’s Inspection Division Report found, however, that the intelligence analysts “selected for Crossfire Hurricane were uniformly inexperienced” and that “[n]one of them were subject matter expert analysts.” Aside from Auten, the most experienced analyst had less than nine months of experience working in that capacity, two had less than four months experience, and two came straight from analyst training.
The analysis done in Crossfire Hurricane was also limited by the Counterintelligence Division’s failure to integrate the Directorate of lntelligence into the investigation as required by policy. Rather, in at least one instance, Assistant Director of the Counterintelligence Division Bill Priestap appears to have deliberately shut down the involvement of the Directorate of Intelligence in an enhanced validation review of Christopher Steele, a key source.Report
What exactly do we mean by ‘bad police work’?
It’s pretty much average police work. It’s better than average! It’s above and beyond for police work! Average police work would be _hiding_ the exculpatory information and going ahead and going ahead and charging people with crimes at the end!Report
Police departments everywhere saying, “Oh, so that’s where the bar is… we could probably make that work.”Report
Uh, yeah, if that was the bar, we would indeed be better off. Because police department consistently do _less_.
I’m not really sure what part of this is confusing you.Report
Heh, I was agreeing with you and riffing on the joke.Report
Ah, okay, sorry.
Yeah, it’s like ‘Wait, the investigation only _ignored_ exculpatory information and focused on pet theories instead of following the fact, but in the end, we _didn’t_ get hiding of evidence or even the minimum of law enforcement bringing charges they know are baseless? The investigation came to seemingly correct conclusions and no one was railroaded?! Wow! Best investigation ever! The FBI really are professionals!’Report
Exhibit A:
Dozens of LASD deputies ordered to show suspected gang tattoos, reveal others who have them
https://www.latimes.com/california/story/2023-05-17/dozens-of-lasd-deputies-ordered-to-show-suspected-gang-tattoos-reveal-others-who-have-them
Yes, you’re reading that correctly. Dozens of Sheriff’s deputies appear to be members of several violent gangs.Report
Conservatives are people who strain at “He looks and acts like someone who’s colluding, we’d better investigate” while swallowing “He looks and acts like someone with WMDs, we’d better invade.”Report
“while swallowing “He looks and acts like someone with WMDs, we’d better invade.””
among the conservatives who “swallowed” that line were Obama’s DNIReport
What has always bemused me about the Durham clown show is its core premise. Every person in the fishin’ country watched as the FBI violated outstanding rules and precedent, taking an action that threw the election to Trump in 2016* and the Durham investigation premise is ‘The FBI was unfair and biased against Donald Trump.”
*Note: It is 100% on HRC that she allowed the race to get so close that Comey and the clowns at the NY FBI could swing it, she will always be responsible for losing to Trump. That does not absolve Comey of what he did.Report
I note at the time that we were told _specifically_ that Comey had to release the fact there were ‘more emails’ (Because, of course, finding emails that people sent to each other is somehow a criminal thing.) because FBI agents in the New York office were planning to release them even closer to the election with no possiblity the FBI could go through them in time.
Why did Comey think that? Was it true or not? DID WE EVER INVESTIGATE THAT?Report
It was very likely true. The leaks out of the NY FBI office (that is, from Rudy’s buddies) were constant.Report
The Durham report documents how the Russian collusion hoax was a deliberate attempt by the Clinton campaign to smear Trump.Report
She won the popular vote!Report
Good for her- pity that wasn’t the goal.Report
“Note: It is 100% on HRC that she allowed the race to get so close”
oooooooh that’s interesting, I always heard you claim it was Bernie’s fault, the dohlschstosselegendeReport
If that’s what you always heard, you need to get out more.Report
I feel I should point out that Roger Stone was convicted of obstructing that very investigation, including tampering with a witness. Saying that someone convicted of obscuring justice in an investigation didn’t have anything to do with the topic of investigation seems…dubious.Report