Published by The Lawfare Institute
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In July, Jack Goldsmith and I published an analysis of U.S. Attorney John Durham’s ongoing probe of the government investigators responsible for examining Trump-Russia related matters before and after the 2016 election. We concluded that a federal prosecutor was not the appropriate institutional actor for the inquiry as it developed, and that President Trump and Attorney General William Barr have damaged the investigation’s credibility through their public commentary about it.
Since then, there have been some developments. On Aug. 19, Durham secured a guilty plea from former FBI attorney Kevin Clinesmith, who doctored an email that the government relied on in its fourth and final warrant application to surveil former Trump campaign aide Carter Page. (The existence of the altered email had been known since November 2019, when CNN first broke the story that Justice Department Inspector General Michael Horowitz had turned it over to Durham.) On Sept. 9, when Barr was asked if Durham is nearing the end of the investigation, he replied: “I’m not going to characterize exactly where he is.” Barr also said that there could be further criminal charges. And most recently, the Hartford Courant reported that Nora Dannehy, a top Durham aide and highly regarded federal prosecutor, had resigned from the Department of Justice “at least partly out of concern that the [Durham] investigative team is being pressed for political reasons to produce a report before its work is done.”
Much remains unknown about Durham’s work. But two new sources of information—the fifth volume of the Senate Select Intelligence Committee’s bipartisan report on Russian interference in the 2016 election and New York Times reporter Michael Schmidt’s new book “Donald Trump v. the United States”—raise even more questions about the investigation.
Durham’s Investigation of Then-FBI Director Comey in 2017
Schmidt reports in his book that around March 2017, Attorney General Jeff Sessions tapped Durham—then an assistant U.S. attorney in Connecticut—to open a leak investigation into FBI Director James Comey following reporting by the New York Times that Comey had asked the Justice Department to refute Trump’s baseless allegations that former President Barack Obama had ordered the wiretapping of Trump Tower. The investigation reported directly to Sessions. Schmidt adds that Durham’s investigation “unnerved career officials in the deputy attorney general’s office,” which is generally responsible for the department’s day-to-day operations and normally would have overseen an investigation like Durham’s.
The existence of the investigation shows that Durham has been involved with the investigation of Russia-related matters from the very start of the Trump administration, a point the New York Times’s Charlie Savage made on Twitter. It is unclear to what extent Durham’s 2017 inquiry is related to a January 2020 report that federal prosecutors were investigating whether Comey improperly disclosed information to reporters in the spring of 2017.
The Predication of the FBI’s Counterintelligence Investigation
Both Barr and Durham have contested one of the main conclusions from the Justice Department inspector general’s December 2019 report: that Trump campaign adviser George Papadopoulos’s comment to a foreign official that the Russians had dirt on Hillary Clinton was an adequate predicate to open a counterintelligence investigation into Russian election interference and links to the Trump campaign. In one interview, Barr called the incident “a very slender reed to get law enforcement intelligence agencies involved in investigating the campaign of one’s political opponent” and confirmed that Durham was looking at the matter.
The Senate Intelligence Committee’s report does not explicitly address the FBI’s decision to open an investigation. But it does, in considerable detail, analyze Papadopoulos’s communications with foreign nationals throughout 2016. Based on those contacts, the committee concluded:
Papadopoulos’s efforts introduced him to several individuals that raise counterintelligence concerns, due to their associations with individuals from hostile foreign governments as well as actions these individuals undertook. The Committee assesses that Papadopoulos was not a witting cooptee of the Russian intelligence services, but nonetheless presented a prime intelligence target and potential vector for malign Russian influence. (Emphasis added.)
The report also found that “Papadopoulos likely learned about the Russian active measures campaign as early as April 2016 from Joseph Mifsud, a Maltese academic with longstanding Russia ties, well before any public awareness of the Russian effort.” The committee described Papadopoulos’s contacts with Mifsud and another individual named Sergei Millian, both of whom “have significant ties to Russian government and business circles,” as “highly suspicious.” Still, the full picture is not public as a subheading of the report titled “Counterintelligence Concerns about Papadopoulos’s Interactions” remains almost entirely redacted.
Additionally, the committee determined that while it did not have affirmative evidence that Papadopoulos communicated his knowledge that the Russians had compromising information on Clinton to Trump campaign officials, “the Committee finds it implausible that Papadopoulos did not do so.”
It is also noteworthy that the Senate investigators concluded that on April 26, 2016, the date Papadopoulos met Mifsud, there was minimal “public awareness of the Russian effort [to interfere with the election].” That is, Mifsud mentioned the emails to Papadopoulos before the issue became a major story—suggesting that Mifsud may have received his information directly from the actors involved. Offering a different view of roughly the same time period, Barr has described Papadopoulos’s comment to the diplomat as unremarkable since “at that time in May 2016 there was rampant speculation going on in the media, on the blogosphere, and in political circles that Hillary Clinton’s email server had in 2014 been hacked, and therefore the Russians might have those emails.”
The Senate report’s findings are of only limited value in assessing whether the FBI’s investigation was adequately predicated because when the FBI launched its investigation, it did not know about any of Papadopoulos’s activities beyond the comment to the foreign diplomat. Nonetheless, the report suggests that Papadopoulos’s conduct around the time the FBI launched the investigation raised real counterintelligence concerns, and this conclusion offers some amount of confirmation that the FBI’s judgement was reasonable. Crucially, the report’s determination that Papadopoulos’s conduct was in fact suspect makes it unlikely that Barr and Durham possess undisclosed evidence that demonstrates that the FBI’s investigation lacked a predicate. Or, at least, if Barr and Durham possess that information, they did not share it with the committee.
The Role of Joseph Mifsud
Joseph Mifsud’s interactions with Papadopoulos appear to have been one focus of the Durham investigation. In October 2019, Italian Prime Minister Giuseppe Conte confirmed that Barr and Durham had met Italian intelligence officials in Rome to discuss Mifsud. Trump allies like Rudy Giuliani and Papadopoulos have said that Mifsud was an Italian operative handled by the CIA. By contrast, court papers filed during the Mueller investigation noted that Mifsud “claimed to have substantial connections to Russian government officials.”
The Senate report presents Mifsud as “a Maltese academic with longstanding Russia ties.” It goes on to determine that Mifsud “exhibited behavior consistent with intelligence tradecraft.” In support of that conclusion, the report notes Mifsud’s use of another person “as a proxy to further induce contact with Papadopoulos,” which “is consistent with intelligence tradecraft.”
In addition, the report concludes that “Mifsud was aware of an aspect of Russia’s active measures campaign in the 2016 election and that Mifsud told Papadopoulos what he knew.” Summarizing the basis of that finding, the committee determined that:
The timing of Mifsud’s visit to Moscow and his subsequent conversation with Papadopoulos are consistent with the timeline of the GRU’s cyber penetration of the DNC and DCCC, several weeks before any information about that activity was public. Furthermore, the information Mifsud conveyed to Papadopoulos was consistent with the GRU’s information disclosure operations intended to damage the candidacy of Hillary Clinton.
The report also described Mifsud as “play[ing] a central role in Papadopoulos’s attempts to engage the Russian government on behalf of the Trump Campaign.”
Altogether, the Senate report casts further doubt on the Trump camp’s theory that Mifsud was working on behalf of Western intelligence agencies to entrap Papadopoulos.
The Intelligence Community’s Assessment That Russia Interfered in the 2016 Election to Benefit Trump
In 2019, the New York Times reported that Durham is investigating the intelligence community’s conclusion that “President Vladimir V. Putin of Russia intervened to benefit Donald J. Trump.” A more recent story from the Times added that “critics” of the assessment “have focused on the fact that the National Security Agency had a lower level of confidence than the C.I.A. and the F.B.I. on the conclusion that Mr. Putin supported Mr. Trump’s election” and that “Mr. Durham … can provide proof” that inappropriate considerations influenced the intelligence community’s assessment.
The Senate report, however, “found that Russian President Vladimir Putin directed the hack-and-leak campaign targeting the DNC, DCCC, and the Clinton Campaign.” According to the committee,
Moscow’s intent was to damage the Clinton Campaign and tarnish what it expected might be a Clinton presidential administration, help the Trump Campaign after Trump became the presumptive Republican nominee, and generally undermine the U.S. democratic process. The Committee’s findings are based on a variety of information, including raw intelligence reporting.
As part of the inquiry into the intelligence community’s assessment, the Times had previously reported that Durham was scrutinizing the role of then-CIA Director John Brennan, noting that Durham had requested “Mr. Brennan’s emails, call logs and other documents from the C.I.A.” But recently, Brennan’s former chief of staff released a statement saying that Brennan sat for an interview with Durham at CIA headquarters and that, according to Durham, Brennan “is not a subject or a target of a criminal investigation and that he is only a witness to events that are under review.”
Schmidt’s book also adds previously unknown details about the sources the intelligence community relied on in forming its assessment. In December 2019, the Times had reported that Durham was looking into the intelligence community’s evaluation of a particular CIA informant inside the Kremlin. That source was later extracted from Russia over concerns that the source was in danger. Now, according to “a former top government official,” Schmidt reports for the first time that “the CIA had at least one other source in Putin’s orbit who provided information that the intelligence community relied on to reach its conclusion about Putin’s role in the election interference.” In addition, Schmidt writes that “[o]n top of that human source, the intelligence community had some form of electronic surveillance that they believed buttressed the validity of their sources and of the [assessment].”
On Jan. 6, 2017, when Comey briefed then-president-elect Trump on the assessment—including the sources on which the intelligence community had relied— Schmidt reports that Trump “told the intelligence chiefs that he was skeptical of their trustworthiness.” Trump said: “I don’t believe in human sources …. These are people who have sold their souls and sold out their country. I don’t trust human intelligence and these spies.”
In sum, both the Senate investigators and Schmidt have closely examined an issue that appears to overlap squarely with Durham’s investigation. Neither source unearthed indications that the intelligence community’s judgments were inappropriately influenced by political motivations.
The Steele Dossier
Durham is also reportedly investigating the Steele dossier—the collection of reports authored by former British intelligence officer Christopher Steele, whose work was funded by the Democratic National Committee (DNC) and Hillary Clinton’s campaign. Barr has said that the FBI’s use of Steele’s reports in a FISA warrant application, in the face of evidence that Steele’s work lacked credibility, is “one of the most troubling aspects” of the FBI’s counterintelligence investigation. Barr also suggested that the Steele dossier could have been the product of a Russian disinformation campaign. While the Department of Justice inspector general’s report found that FBI officials were aware of the possibility that Steele’s information could have been part of a Russian plot, the inspector general also concluded that “more should have been done” to determine if disinformation influenced Steele’s reporting.
The Senate report did not address the issue of why the government continued to rely on the Steele dossier in the warrant application even after it became aware of its deficiencies—much to the dissatisfaction of some commentators. But consistent with the inspector general’s findings that the FBI did not adequately vet the Steele dossier, the Senate report concluded:
Regarding the Steele Dossier, FBI gave Steele’s allegations unjustified credence, based on an incomplete understanding of Steele’s past reporting record. FBI used the Dossier in a FISA application and renewals and advocated for it to be included in the [Intelligence Community Assessment] before taking the necessary steps to validate assumptions about Steele’s credibility. Further, FBI did not effectively adjust its approach to Steele’s reporting once one of Steele’s subsources provided information that raised serious concerns about the source descriptions in the Steele Dossier. The Committee further found that Steele’s reporting lacked rigor and transparency about the quality of the sourcing.
In two separate instances, Schmidt’s book is careful to note that then-FBI Director Comey was not aware of the details of the bureau’s interview with the Steele subsource. (Schmidt discussed this aspect of his reporting in a recent podcast interview with Yahoo’s Michael Isikoff.) Schmidt reports that “for reasons that still remain unclear” Comey was not told about the subsource interview shortly after it happened in January 2017. And again in March 2017, according to Schmidt, “Comey was still being kept in the dark by his underlings at the bureau about how the FBI had been told by the dossier’s main subsource a month and a half earlier about how much of it was rumor.”
Schmidt’s account is consistent with Comey’s own public statements: In an interview with Fox News’s Chris Wallace, Comey said that “in general, I didn’t know what they’d learned from the sub-source. I didn’t know the particulars of the investigation.” But Barr has repeatedly told the press that he does not believe that Comey’s account “holds water.”
On the Russian disinformation issue, the Senate report pointed to two sources discussed in the inspector general’s report that show that the FBI was aware that the Steele dossier might have been polluted by Russia. However, a likely crucial paragraph discussing “additional specifics about both reports” remains redacted. The Senate report also concluded that an email Steele sent to a Russian oligarch named Oleg Deripaska “strongly suggests Deripaska’s awareness of Steele’s work, generally.” The report found that “Deripaska conducts influence operations, frequently in countries [including Russia] where he has a significant economic interest.”
Notably, Schmidt’s book goes farther than any other source in suggesting that the Steele dossier was in fact part of a Russian disinformation campaign. He writes: “The FBI would become increasingly convinced as it continued to investigate the dossier that some of its information had been planted, as part of a Russian disinformation campaign.” That conclusion is in tension with statements by top FBI counterintelligence official Bill Priestap to the inspector general, in which Priestap said that the FBI was aware of the possibility that the Steele dossier could have been part of a Russian disinformation campaign but concluded this was unlikely.
Lastly, the Senate report notes that the FBI’s efforts to corroborate information in the Steele dossier stopped when the Mueller investigation opened in May 2017. An FBI special agent on the Mueller team told the committee that “[t]he information that we collected would have superseded [the Steele dossier], and been something we would have relied on more, and that’s why you see what we did in the report and not the Steele dossier in the report.” The committee noted that it “was unable to secure from the [the Mueller team] a final accounting of which allegations [the Mueller team] pursued or was able to corroborate.”
There remain a number of open questions regarding the FBI’s handling of the Steele dossier. Both the Justice Department inspector general and now Schmidt have acknowledged that there are gaps in the public’s understanding. On this matter, perhaps Durham’s inquiry will provide an accounting of what happened.
Dutch Flash Drives Containing Stolen U.S. Documents
In February 2020, the Times reported that Durham was looking at a “fight” that was “centered on a certain data set.” Schmidt’s book now offers a number of previously undisclosed details about that matter. In early 2016, Dutch intelligence authorities were able to ascertain precisely which documents the Russian hackers had stolen from U.S. governmental and nongovernmental institutions, including the DNC. Once the Dutch understood how valuable this information would be in helping U.S. officials understand Russia’s motive, the Dutch officials handed over multiple flash drives to the FBI containing tens of thousands of stolen documents.
However, the documents presented serious legal issues for the FBI because they contained privileged communications from members of Congress and the executive branch. (Schmidt reports that “[p]eople familiar with their contents said that among them were emails that had been sent and received by President Obama.”) The FBI argued strongly that it should be able to access the documents. “Why shouldn’t we know what the Russians know?,” one senior American official said, according to Schmidt. But ultimately, in an Oct. 20, 2016, meeting with top FBI, CIA, and Justice Department officials, White House counsel Neil Eggleston refused to grant the FBI the authority to examine the contents of the documents. In Schmidt’s account, there is no suggestion that Eggleston’s judgment was based on inappropriate considerations.
Recent Statements From Trump, Grenell, Barr and Meadows
In recent weeks, Trump, former Acting Director of National Intelligence Richard Grenell, Barr, and White House Chief of Staff Mark Meadows have all made public comments about matters related to Durham’s investigation. Trump again accused Obama and Biden of spying on him without pointing to any evidence. And in a speech during the Republican National Convention, Grenell said that “the Obama-Biden administration secretly launched a surveillance operation on the Trump campaign and silenced the many brave intelligence officials who spoke up against it.”
In a Sept. 3 interview with CNN’s Wolf Blitzer, Barr also commented on the Durham investigation. Most significantly, Barr declined to say that he agreed with the Senate report’s conclusion that Russia interfered in the 2016 election to benefit Trump. In response to Blitzer’s attempt to pin him down on that issue, Barr said only that he didn’t “dispute an assessment that [Russia] attempted to interfere.” Barr also said that he did not interpret Trump’s recent statement that the outcome of the Durham probe will determine whether Barr is “the greatest attorney general” or just “an average guy” as an attempt to influence the investigation. And Barr refused to say that it was inappropriate for Trump to accuse Obama administration officials of treason. Barr said that Trump was using the word “colloquially” rather than legally and that Trump feels that Obama officials “were involved in an injustice” and that if Trump “feels that way, he can say it.” (Jack Goldsmith analyzed Barr’s similar use of the word “treason” in depth last year, here.)
On Sept. 8, White House Chief of Staff Mark Meadows said in an interview with FOX’s Maria Bartiromo that he had reviewed “additional documents” that demonstrate that a number of top Obama administration officials “are in real trouble because of their willingness to participate in an unlawful act.” But the Justice Department said that it had not shared nonpublic materials with the White House and suggested that Meadows was “referring to documents he reviewed when he was a Member of Congress.” This is not the first time Meadows has weighed in on the Durham investigation in recent months: Earlier this summer, Meadows told Bartiromo that “it’s time that people go to jail,” referring to FBI investigators.
Like any criminal investigation, it is not possible to judge Durham’s probe until its results are revealed. It remains possible that he has access to information from within the government that could support some of the claims that have been made about his findings. But what is clear now is that, with the notable exception of the Clinesmith email, the Justice Department inspector general, the bipartisan Senate intelligence committee, and a Pulitzer Prize-winning reporter—all serious investigators with strong incentives to uncover wrongdoing—have not found evidence of the type of misconduct that Trump and his top aides have alleged.