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John Durham
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Perhaps the most politically charged criminal trial of the 2000s is fast approaching, and a citizen might like to think the prosecutor bringing the case is the kind of honorable, bipartisan sort fit for such a task. But Special Counsel John Durham, appointed by Trump Attorney General William Barr, has incidents in his past that suggest he might not be the right guy to oversee the case against Hillary Clinton-aligned attorney Michael Sussmann, who is charged with lying to the FBI. That's from investigative reporting by Andrew Kreig at the Justice Integrity Project (JIP). And it suggests the Sussmann trial might produce plenty of political fireworks -- based in the RussiaGate scandal of the 2016 presidential election and even touching on the U.S. attorneys firings of the George W. Bush era. But will the jury trial, set to begin May 16, produce justice? Kreig's reporting produces serious doubts about that. From Kreig's post at JIP, under the headline "On Eve of 'RussiaGate' Trial, Questions Loom About Special Counsel Durham":
With final preparations under way for one of the most politically
explosive federal prosecutions in years, U.S. Justice Department Special
Counsel John H. Durham’s record reveals legal error that undercuts his
image as a straight-shooting seeker of justice.
In a 2008 ruling that has never been reported by a major news outlet,
a New York federal appeals court vacated bribery, wire fraud and
racketeering convictions because
a team led by Durham, then the Deputy U.S. Attorney in
Connecticut (and Acting U.S. attorney for supervising the prosecution),
illegally withheld evidence that could have helped federal defendant
Charles Spadoni defend himself in a corruption case.
In another case, a Connecticut federal judge overturned a conviction
in 2003 because of what she ruled in a 57-page decision was Durham's
repeated prosecutorial misconduct at trial, a sanction that authorities
stated is extremely rare in the federal system.
Is this the kind of conduct the public should expect from the prosecutor in a case that likely will touch on international relations and national security? Kreig's timely reporting suggests the answer is no. Kreig writes:
Past performance is relevant now because Durham's three-year probe of
alleged illegality pertaining to the 2016 U.S. presidential election is
reaching a pivotal and controversial juncture with the trial this month
of the prominent cyberlaw attorney Michael Sussmann on a claim
that Sussmann falsely denied that he
was representing Democratic nominee Hillary Clinton when he sought to
alert FBI general counsel James Baker in the fall of 2016 to suspicions
of Russian interference.
Sussmann, his attorneys and some independent commentators have denied
wrongdoing and claimed that the prosecution is exceptionally weak and
also tainted by political partisanship by Durham, a career prosecutor
who was also nominated by President Trump for the political post of U.S.
attorney for Connecticut.
Several important pretrial motions were heard on April 27 by U.S.
District Judge Christopher R. Cooper in Washington’s federal court. (See . . . Sussmann Prosecutors Seek Legally Dubious "Tactical Advantage" At Trial, Defense Claims.) The judge largely resolved them on May 7 in favor of the defense, as reported here in Judge spares Clinton camp in Sussmann ruling.
What brings a special edge to the Sussmann case? Kreig explains:
Durham’s case against Sussmann, a former partner at the D.C. office of law
firm Perkins Coie, has generated substantial interest in the national
press, particularly in pro-Trump circles where some Trump supporters
regard it as their last best hope to vindicate Trump’s 2016 election
victory as a purely American popular effort, thereby debunking claims
that Russian operatives interfered in the 2016 election to hurt Clinton
and other Democratic candidates.
Sussmann and his defenders, on the other hand, have defended his
actions as both non-criminal and reasonable, particularly in view of
what they see as confirmed threats to the elections process posed by
Russians, Trump and their allies. Sussmann’s defense lawyers accused
Durham, for example, of promoting a “baseless narrative that the Clinton
campaign conspired with others to trick the federal government into
investigating ties between President Trump and Russia.”
Sussmann’s attorneys also have pointed to evidentiary problems in
Durham’s case, including the lack of contemporary notes by the key FBI
witness, James Baker, to support the Durham prosecution team's
allegation that Sussmann criminally deceived Baker regarding his
relevant clients.
The case, in other words, has come to be regarded in some quarters as
either a rigorous and fearless application of the law by Durham and his
team -- or, conversely, as an example of over-zealous overreach by an
unaccountable prosecutor suspected of bringing a baseless prosecution to
favor pro-Trump politics.
What about those ties to a George W. Bush-era scandal? Here's how they enter the picture:
A consistent theme in the news accounts exploring the Durham
investigation is that prosecutor and his team, including Nora R.
Dannehy, a former Acting U.S. Attorney in Connecticut and longtime
Durham colleague, bring to their work outstanding reputations as career
prosecutors long entrusted to fulfill their responsibilities with the
highest standards of professional expertise and justice-seeking.
And this is why the 2008 federal court decision, invalidating
Durham’s prosecution of Spadoni for prosecutorial misconduct, remains
especially relevant today in Durham’s prosecution of Sussmann.
Here’s the story: New Questions Raised About Prosecutor Who Cleared Bush Officials in U.S. Attorney Firings,
which we at the Justice Integrity Project originally reported in 2010
in Nieman Watchdog, a niche website published by Harvard University and
edited by Barry Sussman, the former Watergate editor of The
Washington Post who supervised its coverage of that scandal. Sussman is
also the author of the recently released fifth edition of The Great Cover-up, a widely praised account of the Watergate probe.
The Nieman Watchdog story focused primarily on the appointment of
Durham and Dannehy as special counsel investigating allegations of CIA
and Justice Department misconduct. The story began this way:
"Four days before Nora Dannehy was
appointed to investigate the Bush administration’s U.S. attorney firing
scandal, a team of lawyers she led was found to have illegally
suppressed evidence in a major political corruption case.....[T]his
previously unreported fact calls her entire investigation into question
as well as that of a similar investigation by her colleague John Durham
of DOJ and CIA decision-making involving torture."
The
New York-based U.S. Second Circuit Court of Appeals had ruled that
Durham’s team should have known that the Spadoni defense was entitled to
an FBI agent's notes, which could have been used by Spadoni to argue
that his conduct was legal.
The three-judge court ruled unanimously in vacating the major convictions against Spadoni. Judges held that the evidence unconstitutionally
withheld might have helped Spadoni's defense against prosecution claims
that he and his employer, Triumph Capital, Inc., illegally conspired to
hire a political consultant in hopes of winning a major contract from
the State of Connecticut.
U.S. District Judge John Gleeson, a former federal prosecutor, authored the opinion, which is available here.
It did not name the federal prosecutors at fault but the case caption
and relevant filings were signed by Durham and Dannehy as the most
senior attorneys.
Durham and Dannehy have maintained stellar reputations as public servants of high integrity and competence. But Kreig's reporting raises doubts about whether those reputations are deserved:
Durham
and Dannehy have achieved widespread praise and career advancement as
special prosecutors entrusted with reviewing several of the most
sensitive Justice Department controversies of recent years. These
include investigations of suppression of evidence, partisan prosecutions
or other alleged serious wrongdoing by Justice Department and CIA
personnel in major proceedings of historic stature.
That pattern continued after May 2019, when the Trump-appointed
Attorney General William Barr named Durham, later assisted by Dannehy,
to investigate the Trump team’s claims that the FBI and other Justice
Department concocted phony claims of Russian interference in the 2016
presidential election along with Democratic operatives associated with
Hillary Clinton’s campaign.
Tabloids, pro-Trump media outlets and some leftist critics of the
Democratic Party have labeled the claims of Russian interference
"RussiaGate" in many news stories and commentaries that suggest that
Russian "interference" is colossal fraud on par with the Nixon-era
scandal of the 1972 break-in by GOP and CIA operatives of the Democratic
National Committee headquarters at the Watergate complex in Washington,
DC. . . .
Fox News, pro-Trump Republican officers, and many bloggers have
similarly advanced arguments that Trump and Russians have been falsely
accused.
