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John Durham's endgame: Don't expect criminal charges

John Durham's endgame: Don't expect criminal charges
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It is becoming apparent that the prosecution of former FBI attorney Kevin Clinesmith may be the zenith of special counsel John DurhamJohn DurhamGarland stresses independence in first speech at DOJ Senate votes to confirm Garland as attorney general Special counsel investigating Russia probe to retire as US attorney MORE’s investigation into the roots of the FBI’s “Crossfire Hurricane” investigation involving Russia and Donald Trump’s 2016 campaign. Recent reporting suggests no other senior FBI or Department of Justice (DOJ) officials will face criminal charges. 

Clinesmith pleaded guilty to lying to the Foreign Intelligence Surveillance Act (FISA) Court and was sentenced on Jan. 29 by U.S. District Judge James Boasburg. As evidence of Clinesmith’s political bias as a possible motive, the government’s sentencing memo cited Clinesmith’s 2018 suspension for “sending improper political messages to other FBI employees,” including, “viva la resistance.”   

Boasburg, a FISA Court judge, sentenced Clinesmith to probation, community service and no fine. Exhibiting no indignation regarding the fraud perpetrated on his court, Boasburg accepted Clinesmith’s defense that he never intended to defraud the court (though he pleaded guilty to doing so). 

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In April 2019, before the Senate Appropriations Subcommittee, former Attorney General William BarrBill BarrLieu calls Catholic bishops 'hypocrites' for move to deny Biden communion The Hill's Morning Report - After high-stakes Biden-Putin summit, what now? Senate Judiciary Democrats demand DOJ turn over Trump obstruction memo MORE testified: “Spying on a campaign is a big deal; I think spying did occur. The question is whether it was adequately predicated. I am not saying that improper surveillance occurred; I am concerned about it. There is a basis for my concern.” This was the impetus for Barr’s assigning Durham in May 2019 to investigate activities during and after the 2016 election. 

There are hints that Durham’s 20-month autopsy of Crossfire Hurricane may amount to findings of violations of FBI policies and investigative procedures, and other noncriminal matters. Other than additional false statement charges, the activities under investigation may not reach a criminal threshold. Moreover, since Durham’s appointment, the government has declined to prosecute former FBI director James ComeyJames Brien ComeyMystery surrounds Justice's pledge on journalist records NYT publisher: DOJ phone records seizure a 'dangerous incursion' on press freedom Trump DOJ seized phone records of New York Times reporters MORE and deputy director Andrew McCabeAndrew George McCabeThe FBI should turn off the FARA faucet John Durham's endgame: Don't expect criminal charges Carter Page sues over surveillance related to Russia probe MORE on criminal referrals arising from Office of Inspector General (IG) investigations.

In February 2020, the DOJ declined to charge McCabe with making false statements. In an FBI administrative inquiry, McCabe was questioned about his role in an October 2016 leak to the Wall Street Journal. IG investigators also interviewed McCabe, prompting a criminal referral to the DOJ in April 2018. The IG found that McCabe “lacked candor, including under oath, on multiple occasions” and his decision to publicly confirm the existence of an FBI investigation was done “to advance his personal interests at the expense of department leadership.”

A McCabe prosecution may have been problematic. First, the IG’s referral came about through an internal FBI investigation. Usually, when someone is charged with lying to the FBI, it is part of a larger investigation of substantive criminal violations, not an administrative inquiry.  Second, as president, Trump criticized McCabe, calling for his firing, so charging McCabe may have created the perception that the DOJ capitulated to pressure. Lastly, a grand jury simply may have refused to indict McCabe.

In August 2019, the DOJ announced that Comey would not face charges for releasing internal FBI memos (not classified at the time) documenting his conversations with President TrumpDonald TrumpHead of firms that pushed 'Italygate' theory falsely claimed VA mansion was her home: report Centrists gain foothold in infrastructure talks; cyber attacks at center of Biden-Putin meeting VA moving to cover gender affirmation surgery through department health care MORE. Comey provided the memos to a friend, with instructions to pass them to the New York Times.  The IG referral indicated the memos may have contained sensitive information and that Comey violated FBI policy by sharing them. Comey rationalized that the memos were his personal property, a diary of sorts. Since there was no proof of Comey’s intent to mishandle classified information, the DOJ declined to prosecute. 

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Although McCabe and Comey avoided criminal charges, they have been excoriated in IG reports that describe their brazen transgressions and falsehoods. Evidently, the two held an arrogant disregard for DOJ policy guidelines and FBI investigative standards, believing the country had elected a compromised president who must be removed by any means necessary.

Though Trump fired Comey over his handling of the Hillary ClintonHillary Diane Rodham ClintonWhite House denies pausing military aid package to Ukraine Monica Lewinsky responds to viral HBO intern's mistake: 'It gets better' Virginia governor's race poses crucial test for GOP MORE email investigation, an IG review concluded: “We did not find documentary or testimonial evidence that improper considerations, including political bias, directly affected the specific investigative decisions we reviewed.” But investigators know the lack of documentary or testimonial evidence of bias-influenced decisions is not proof that it did not exist or did not influence decisions.

Let’s be honest: No one will admit when interviewed, or divulge in emails, their antipathy for Trump as their primary motive for any official decision. The IG cannot divine a person’s true motive or intent, unless there is an abundance of circumstantial evidence, such as private texts between colleagues that indicate state of mind. Official decisions covertly influenced by political bias will always be cloaked in some aura of legitimacy.  

The Office of Inspector General published three reports that focus on the actions of Comey and McCabe. They are lengthy but easy to read, and the executive summaries alone are jaw-dropping:

  • A Report of Investigation of Certain Allegations Relating to Former FBI Deputy Director Andrew McCabe (February 2018) 
  • A Review of Various Actions by the Federal Bureau of Investigation and Department of Justice in Advance of the 2016 Election (June 2018)
  • Report of Investigation of Former Federal Bureau of Investigation Director James Comey’s Disclosure of Sensitive Investigative Information and Handling of Certain Memoranda (August 2019) 

These testimonials chronicle the epic fall from grace of the FBI’s top two leaders. The conclusions are rooted in facts and testimony gathered through a meticulous, objective investigation. For Comey and McCabe, and possibly others, Durham’s efforts may not find much more than what the IG unearthed. The IG’s reports are likely Americans’ best opportunity to learn the truth about what happened. It’s no substitute for a criminal prosecution, but it is some measure of justice and accountability.

Some will believe that anything less than criminal charges resulting from Durham’s efforts will demonstrate a disappointing failure by an inept justice system. And tragically, it may take a long time for the FBI to overcome the perception that the bureau was a corrupt tool of “deep state” operatives committed to a political agenda. In truth, a small faction appears to have hijacked the most consequential investigations in FBI history for their own partisan, selfish motives — cases that should have been worked by capable field offices. 

Barr’s December 2020 order naming Durham as special counsel required that Durham “submit to the Attorney General a final report, and such interim reports as he deems appropriate, in a form that will permit public dissemination.” The final Durham Report may not be as gratifying as criminal indictments, but if it is anything like the IG reports, it will come darn close.

Mark D. Ferbrache was an FBI agent from 1983 to 2011 specializing in white-collar criminal investigations. He later worked in the bureau’s National Security Division and CIA’s Counterterrorism Center, and held diplomatic assignments in Prague, London and Bucharest, as well as field office assignments in Seattle, New York and the FBI Headquarters in Washington. He is currently employed as a contractor in the U.S. intelligence community.