Former Trump Attorney General William Barr’s 18-month campaign to rehabilitate his reputation just dove into an empty pool. What’s worse, his special counsel-appointee, John Durham, the one-time U.S. Attorney from Connecticut, is the man who drained the water.
Durham just disgraced himself in a DC courtroom. In September, he indicted Clinton campaign lawyer Michael Sussman for lying to the FBI, proscribed by 18 U.S.C. § 1001. On Tuesday, after two weeks of trial, the jury delivered a lightning acquittal—about six hours of deliberating . . . ouch! The courthouse version of “Don’t let the swinging door hit you on the way out.”
Starting in May 2019, Barr brought Durham to DC to prove Trump’s “witch hunt” mantra. In October 2020, just before the election that Barr expected to put a new administration’s AG into power, he made Durham a special counsel to immunize him from removal.
Hence, Tuesday’s verdict was also a blow to Barr. For 18 months, he’s been on a charm offensive to make himself a hero who stood up to Donald Trump’s Big Lie that there was election fraud.
He’d like to erase our memory that he unsuccessfully sought to dismiss Michael Flynn’s guilty plea.
He’d rather we not remember his scurrilous attack on his own department’s nonpartisan Inspector General, who found that the FBI’s investigation of Trump-Russia collaboration began legitimately.
Now John Durham’s trial embarrassment reminds us of Barr’s ill-doing.
Durham couldn’t prove what wasn’t true—that the 2016 FBI’s Trump-Russia investigation was a conspiracy with Hillary Clinton’s campaign. But prosecuting Sussman was like playing horseshoes—close enough for Fox News allies.
Sussman was a lawyer for the Clinton campaign, and he went to the FBI with a tip. There were signs of a secret Trump-Russia talk-channel between servers at the Trump Organization and at Russia’s state-controlled Alfa Bank.
Durham always had a little timing problem for the thesis that Sussman’s action had something to do with the FBI starting its Trump investigation unlawfully—Sussman went to the FBI six weeks after its investigation began.
Never mind that. Especially if you think that the Justice Department’s mission is less about serving justice than using public relations to manipulate facts for political ends.
Fortunately, we have juries to set the record straight, as Sussman’s jury did in short order on Tuesday. Durham’s problem was that he didn’t have the evidence to prove the lie that he alleged: It wasn’t that the Alfa Bank “tip” was never substantiated. Rather, the purported lie was that Sussman told FBI counsel James A. Baker that he (Sussmann) was not acting “on behalf of a client,” the Clinton campaign, whom he was representing at the time.
Sussman’s defense was that he went to Baker on his own behalf, as a private individual who wanted neither the FBI nor his friend Baker to be surprised by imminent press coverage of the Alfa Bank story. That could imperil any investigation the FBI might do.
Disproving Sussman’s stated motivation beyond a reasonable doubt was an impossible task. Baker’s testimony lent support to it, and Sussman’s billing sheets did not mention going to the FBI. Durham surely knew about both holes in his own evidence.
Let’s acknowledge two things from a former prosecutor’s perspective. In October 2019, before Barr made Durham a special prosecutor, Durham righteously obtained a guilty plea from FBI agent Kevin Clinesmith for doctoring documents. Our justice system cannot tolerate that.
Similarly for prosecuting provable lies to the FBI.
But Sussman’s indictment went beyond aggressive prosecution in that cause. Given the evidence Durham didn’t have, this was a prosecutor abusing the government’s awesome power and dangerously overstepping the line separating innocence and guilt. It has the bad odor of trying to cook up a prosecution using the moldy sausage of partisan politics.
It would give Barr more evil credit than even he deserves to suggest that he was trying to add to his sad legacy of giving future special prosecutors a bad name. But that may be the collateral damage that his choosing Durham hath wrought.
Here’s the key point. All of Durham’s prosecutions, including another he has set for trial in October, are about facts that post-date the fully legitimate launch of the 2016 Trump-Russia investigation. None could achieve the Trumpian mission that Barr gave Durham, to prove that investigation was a “hoax.”
That’s why his courthouse disgrace was also Barr’s. We shouldn’t forget it.