House Judiciary Committee members are gearing up this week to grill former special counsel John Durham over the misconduct he uncovered through a yearslong inquiry of the start of the Russia investigation.
His more than 300-page report, released last month, contained many details of allegations that had first surfaced years earlier, including claims of bias against former President Donald Trump and unequal treatment of him related to his 2016 rival, Hillary Clinton.
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The findings revealed the FBI never had any evidence of collusion between Russia and the Trump campaign and that the Department of Justice continued to pursue invasive surveillance measures after months of coming up empty.
But the report also left many questions unanswered, and House Republicans are likely to press Durham for more answers during the hearing on Wednesday.
Who from Crossfire Hurricane remains at the Justice Department?
Many of the top Justice Department and FBI officials involved in opening Crossfire Hurricane, the internal name of the Russia investigation, have been fired or have resigned since 2016.
Former FBI Director James Comey, former Deputy Director of the FBI Andrew McCabe, former FBI agent Peter Strzok, former FBI attorney Kevin Clinesmith, and others all parted with the Justice Department in disgrace since 2016.
But some appear to remain at DOJ, raising questions about whether everyone responsible for the misconduct has been held accountable.
For example, Dina Corsi, then the deputy assistant director for counterintelligence at the FBI, was found by Durham to have instructed FBI analysts in spring 2017 not to put in writing any of their findings about how little evidence they’d found to support the allegations of Russian collusion.
FBI analysts interviewed by Durham’s team said they were “shocked” at what they perceived as an attempt to avoid the creation of a paper trail that could expose just how weak the case, months after being opened, was. Corsi still appeared to be employed by the FBI at the time of the Durham report’s release.
With both the previous Russia investigation and the current Mar-a-Lago classified documents investigation involving FBI and DOJ counterintelligence officials, lawmakers will likely ask whether any people who worked on the deeply flawed Russia investigation are also working on the case against Trump in the classified document matter.
Why did Durham fail to get cooperation from key witnesses?
Durham said he conducted more than 480 witness interviews during the course of his investigation — far more than the DOJ inspector general conducted ahead of the 2019 report that first raised serious concerns with the opening of Crossfire Hurricane.
However, some of the key players involved in the investigation refused to speak with Durham’s team.
Comey, director of the FBI at the time the Russia investigation began, declined to cooperate with the Durham investigation.
Glenn Simpson, who founded the opposition research firm Fusion GPS, also refused to speak with investigators. Simpson’s firm pushed unverified claims about Trump’s ties to Russia to the media and, through a lawyer, to the Justice Department after the Clinton campaign paid Fusion GPS for the research, sparking the Russia investigation.
McCabe, then the deputy director of the FBI, did not cooperate with investigators. And Strzok, the former FBI agent found to have harbored a fierce anti-Trump bias, agreed to provide only limited information on a narrow aspect of the Russia investigation and otherwise refused an interview.
Durham had subpoena power as a special counsel and could have compelled those witnesses to cooperate; in fact, Durham said his team served more than 190 subpoenas and executed seven search warrants during his investigation.
Why some of the figures accused of the worst misconduct seemingly did not face subpoenas or warrants is likely to be a topic of interest for Hosue Republicans.
What took so long?
In 2019, the DOJ inspector general issued a scathing report that found the FBI and Justice Department flouted the rules for securing surveillance warrants in order to keep wiretapping Carter Page, a former Trump adviser, long after evidence suggested Page could not corroborate the collusion allegations.
By that time, some of the worst allegations of bias, including that Strzok had sent text messages about his intention to stop Trump from winning the election at the time he was playing a leading role in Crossfire Hurricane, had already come to light.
Then-Attorney General Bill Barr tasked Durham with investigating the Russia investigation in 2019, at arguably the height of scrutiny into how the FBI handled the collusion allegations.
But Durham took roughly four years to complete an investigation that, while thorough and devastating to the FBI, did little to advance the public narrative about the Russia investigation. Trump’s critics have misleadingly claimed that Durham found nothing new about the issue after those years of digging.
Durham did indeed uncover more evidence of corruption than the DOJ inspector general; however, lawmakers are likely to ask why Durham did not work faster to complete his work at a point where it might have made a difference in the 2020 or 2022 elections.
Why did the FBI never seriously investigate the Hillary Clinton campaign plot?
One new piece of information contained in the Durham report involved evidence the FBI obtained during the 2016 election that the Clinton campaign had developed a plan to frame Trump for colluding with Russia.
The FBI discovered “a Clinton campaign plan to vilify Trump by tying him to Vladimir Putin so as to divert attention from her own concerns relating to her use of a private email server,” Durham wrote in his report.
The evidence for this plot — besides the most obvious, the fact that the FBI shortly afterward received opposition research on this very topic from a source on the Clinton campaign’s payroll — was so strong that the CIA director at the time briefed then-President Barack Obama, then-Vice President Joe Biden, then-Attorney General Loretta Lynch, then-FBI Director Comey, and other senior Obama administration officials.
Intelligence that prompts such high-level briefings is typically thought to be strong, as the CIA can’t possibly brief the upper echelons of the government about every tip that comes its way.
“It was also of enough importance for the CIA to send a formal written referral memorandum to Director Corney and the Deputy Assistant Director of the FBI’s Counterintelligence Division, Peter Strzok, for their consideration and action,” Durham said of the intelligence that suggested the Clinton campaign was preparing to frame Trump for having nefarious Russian ties.
“Unlike the FBI’s opening of a full investigation of unknown members of the Trump campaign based on raw, uncorroborated information, in this separate matter involving a purported Clinton campaign plan, the FBI never opened any type of inquiry, issued any taskings, employed any analytical personnel, or produced any analytical products in connection with the information,” Durham wrote.
Why exactly the allegations of a Clinton campaign plot went from the president’s desk to a footnote in the Russian collusion investigation is a key question that Durham could attempt to answer during the hearing.
In his report, Durham notes that his team could not find evidence that proved beyond a reasonable doubt that FBI and DOJ officials intentionally suppressed the Clinton campaign plan intelligence. However, he did say the lack of investigation into the intelligence represented “a rather startling and inexplicable failure” by the FBI, which he could be asked to describe further.
How does Durham respond to criticism of his conviction record?
Many Democrats and commentators sought to dismiss Durham’s findings because, over the course of his four years of investigating, he secured only one conviction and failed at two other attempts to prosecute those involved.
Former FBI attorney Kevin Clinesmith pleaded guilty in 2020 to a criminal charge related to his decision to doctor an email from a CIA official to conceal the fact that Carter Page, a former Trump adviser and target of unethical surveillance, had actually shared information about his dealings with Russians with the CIA.
Clinesmith deleted language from an email that supported one of the FBI’s application for a surveillance warrant for Page so that the CIA official appeared to be confirming that Page never cooperated with the CIA, making his ties to Russians seem far more suspicious than they really were.
But Durham’s two other attempts to secure convictions were less successful.
Michael Sussmann, one of Clinton’s campaign lawyers, faced charges from Durham’s team of lying to the Justice Department because he approached DOJ officials in 2016 with what he said was evidence of Trump’s collusion with Russia and asserted that he did not do so on behalf of any client.
That was not true; he was also on the payroll of the Clinton campaign at the time.
A jury acquitted Sussmann despite the evidence Durham’s prosecutors presented.
Igor Danchenko, a Russian citizen working as an analyst in America, was charged with lying to the FBI over his role in providing most of the false allegations in the Steele dossier, which helped provide the basis for opening Crossfire Hurricane.
He, too, was acquitted by a jury.
Durham will likely have a platform from which to defend his conviction record, since that has become the main reason so many Democrats have dismissed his work.
Durham alluded to his defense in the report, noting that “juries can bring strongly held views to the courtroom in criminal trials involving political subject matters, and those views can, in turn, affect the likelihood of obtaining a conviction, separate and apart from the strength of the actual evidence.” He could have the chance to expand on why he did not secure convictions for two players accused of misconduct.
Why did Durham not prosecute people he accused of serious misconduct?
Durham accused many people of bad behavior in the early months of Crossfire Hurricane. He said Strzok “at a minimum” held a strong bias against Trump as he opened an investigation into the candidate, for example.
He said “certain personnel” responsible for preparing the applications for surveillance warrants “disregarded significant exculpatory information” that would likely have proven their targets innocent, which violates surveillance rules.
Why FBI and DOJ officials who knowingly twisted facts to fit a preexisting narrative of Russian collusion while openly disparaging Trump did not face any consequences is likely to be a leading question for Republicans. They have long claimed that people who initiated what became the biggest political scandal of Trump’s presidency escaped accountability and could want to know why Durham passed up on what might have been the best chance to impose that accountability.
Does Durham still have confidence in FBI Director Chris Wray?
While it was Comey who oversaw the start of the Crossfire Hurricane investigation, FBI Director Christopher Wray presided over the bureau as the investigation continued, and at the time, Durham was looking into the FBI’s internal processes.
Republicans have increasingly criticized Wray for what they describe as a failure to turn the page from the bias of the Comey era. GOP lawmakers threatened to hold Wray in contempt of Congress over the FBI’s refusal to cooperate with oversight efforts.
Durham’s yearslong investigation likely gave him a close-up view of how much FBI leadership did or did not address the company culture that led to such unethical behavior.
House Judiciary Republicans are almost certain to press Durham on whether he thinks, given the extent of misconduct revealed over the past few years, Wray can right the ship.
Who shut down the investigation of foreign campaign contributions to the Clinton campaign?
Durham also elaborates on a previously unreported allegation of an illegal campaign contribution to the Clinton campaign from a foreign national.
“The FBI elected to end an investigation after one of its longtime and valuable [confidential human sources] went beyond what was authorized and made an improper and possibly illegal financial contribution to the Clinton campaign on behalf of a foreign entity as a precursor to a much larger donation being contemplated,” Durham wrote in the report.
Specifically, he said his team uncovered evidence that the confidential source funneled the maximum legal donation amount to the Clinton campaign on behalf of “Insider-1,” an unnamed person “who was known to the FBI to have foreign intelligence and criminal connections,” according to Durham, and who had sought to send money to the Clinton campaign in exchange for favorable treatment for the foreign government he or she represented.
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When pressed by Durham, the confidential source’s contacts at FBI “could not explain why this apparent illegal contribution was not documented in FBI records,” and no investigation of the situation ever occurred. There did not appear to be any follow-up from FBI investigators at the time into whether the foreign government’s representative, Insider-1, succeeded in furthering his or her bribery plot.
The episode is a small section in the Durham report but could present House Republicans with a significant opportunity to deepen their argument that the Justice Department is operating a two-tiered system of government that allows allies to escape scrutiny.
