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How Attorney General Bill Barr Controls the End of John Durham's Investigation

Time logo Time 9/18/2020 Tessa Berenson
a man wearing glasses: US Attorney General William Barr gestures as he speaks during a daily briefing at the White House in Washington D.C. on March 23, 2020. © Brendan Smialowski—AFP via Getty Images US Attorney General William Barr gestures as he speaks during a daily briefing at the White House in Washington D.C. on March 23, 2020.

John Durham has said almost nothing about his 15-month probe into the FBI’s investigation of the Trump 2016 campaign. Not so Durham’s boss, Attorney General William Barr, who has called “Crossfire Hurricane” one of the “greatest travesties in American history.” Now, as America heads into the final weeks of a contentious presidential campaign, experts say it is Barr who will control how, and possibly when, Durham’s findings are presented to the country.

That has Democrats feeling deja vu. In 2016, former FBI Director James Comey infamously revealed that the bureau had reopened an investigation into Hillary Clinton’s private email server just days before the election. With Trump’s intense interest in Durham’s work, Barr’s controversial comments and a fast-approaching presidential election, the timing and manner of the end of this probe could affect voters as they go to the polls.

In the spring of 2019, Durham was tasked with “exploring the extent to which a number of countries, including Ukraine, played a role in the counterintelligence investigation directed at the Trump campaign during the 2016 election,” Justice Department spokeswoman Kerri Kupec said. His mandate, the Justice Department also said, is to determine whether “intelligence collection activities by the U.S. government related to the Trump 2016 Presidential Campaign were lawful and appropriate.”

Since then, Durham has largely been quiet, and it remains unknown what exactly he is looking at. His investigation has garnered one guilty plea so far, from former FBI attorney Kevin Clinesmith, who admitted to making a false statement when he altered an email used in a request for a warrant against former Trump campaign adviser Carter Page. It’s not known whether Durham is pursuing other criminal matters. Barr himself has traveled internationally to enlist the support of foreign officials in Durham’s investigation, including to the U.K. and Italy.

In the most recent development, one of the top prosecutors working for Durham resigned from his team last week. Durham’s office confirmed to TIME that Nora Dannehy’s resignation was effective on September 11, but declined to comment further. The Hartford Courant, which first reported the news, quoted anonymous colleagues saying that Dannehy resigned “at least partly out of concern that the investigative team is being pressed for political reasons to produce a report before its work is done.” The Courant said that this perceived pressure is coming from Barr.

In theory, some norms control whether and how Durham’s findings would become public. If Durham does not have any other criminal indictments resulting from his work, typically the Justice Department would refrain from making much information public. The Department tends not to release information about what it has found about someone if that person isn’t going to be criminally charged. (This was the norm Comey broke in his public statements about Clinton’s email investigation in 2016.) On the other hand, if people are charged as a result of Durham’s work, the Justice Department has an unwritten “60-day rule” that urges caution on taking major action in any politically significant cases within a window of time before an election if it could affect the results.

But in practice, it’s up to Barr how much deference to give to these traditions. “Other than those soft norms, he basically can do what he wants,” says Jack Goldsmith, professor at Harvard Law School who served in the Justice Department’s Office of Legal Counsel (OLC) under President George W. Bush. Unlike Robert Mueller, whose investigation was governed by the special counsel regulations, Durham has no formal roadmap to follow for how he needs to present his findings. Barr “has enormous discretion,” says Goldsmith. “There are no express Justice Department rules governing this.”

The findings are set to drop at a moment of particular concern about politics influencing the course of justice in America. Democrats allege Barr has turned DOJ into a political arm of the White House. They point to Barr’s handling of the rollout of the Mueller report, his interventions in politically-charged prosecutions of Trump allies and even his appointment of Durham, among numerous other actions. Barr himself gave a speech recently extolling the virtue of political appointees holding influence over DOJ career prosecutors as a mechanism for accountability.

Former Justice Department officials and former federal prosecutors say Barr will almost certainly be briefed on the findings once Durham finishes his work, and then Barr will decide whether to make any of those findings public, when to do so, and in what form. “It would be very surprising if on a high-profile matter like this, that the Attorney General wasn’t at least briefed before the investigation was closed,” says John Bies, who worked in OLC under President Barack Obama and is now chief counsel at American Oversight. Barr has said he expects there will be some form of “public disclosure” of Durham’s work, and said in congressional testimony this summer he would not necessarily wait until after the election to make some of Durham’s findings public.

There are clues about how both Barr and Durham may handle the coming weeks. In the spring of 2019, shortly after he was confirmed as Attorney General, Barr oversaw the release of the Mueller report on whether members of the Trump campaign had conspired with Russia, and whether Donald Trump obstructed justice. Before releasing the report, Barr held a press conference and put out his own summary of the findings, framing Mueller’s work in the most favorable way for the president. The Attorney General drew significant criticism for how he handled the matter. Even Mueller himself was frustrated by the way Barr managed the rollout, writing him a letter arguing that Barr’s summary “did not fully capture the context, nature and substance” of Mueller’s full report.

Durham has already shown that he might be willing to take a similar stand if he disagrees with any aspect of how Barr characterizes his findings. In December 2019, Justice Department Inspector General Michael Horowitz released a report based on his own office’s probe of “Crossfire Hurricane”. Horowitz found that the FBI had adequate justification to open the investigation and did not find evidence of political bias in the decision. But both Durham and Barr publicly disagreed. Durham’s statement said, “Based on the evidence collected to date, and while our investigation is ongoing, last month we advised the Inspector General that we do not agree with some of the report’s conclusions as to predication and how the FBI case was opened.”

In hindsight, that may have been a particularly revealing moment. While Barr and Durham were aligned in their views on Horowitz’s findings, Durham’s willingness to publicly contradict Horowitz suggests that he might do the same for Barr, if he thinks Barr distorts his findings the way Mueller felt about his own report. “His default position will start with, I’m not saying a word to anybody,” says a former federal prosecutor who knows Durham. “But there are scenarios that could obviously arise where John would feel that he had an obligation to say something publicly.”

That may be, but as the Mueller probe showed, it’s the first impression, as much as the last word, that may count most in the current atmosphere of politicized justice in America. And when it comes to the Durham probe, Trump’s loyal Attorney General, Bill Barr, controls them both.

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