Special Counsel John Durham's final report on the origins of the FBI's investigation into Russian links to Donald Trump's 2016 campaign was released recently. The report spans over 300 pages and contains several noteworthy points.
Durham addresses criticism from some Republicans who were disappointed by the lack of significant criminal convictions related to alleged FBI misconduct in the Trump-Russia probe. He explains that not every injustice or transgression amounts to a criminal offense and that bad judgment alone is not necessarily a crime.
Durham brought criminal charges against only three individuals, losing both cases that went to trial. In one case, an ex-FBI lawyer named Kevin Clinesmith pleaded guilty to altering an email used to support a surveillance application but received no prison time. Durham emphasizes that bad judgment and unethical conduct by political campaigns do not always violate the law.
Durham dismisses the notion that quick acquittals by juries in two of the three prosecuted cases indicate misguided efforts by his team. He acknowledges the challenges of securing convictions in politically sensitive cases and notes that it requires proving criminal intent.
The report goes beyond a traditional criminal probe and includes recommendations for changes in how the Department of Justice (DOJ) and the FBI conduct their business. Durham suggests a renewed fidelity to existing policies rather than wholesale changes but also discusses ways to handle politically sensitive investigations differently, such as assigning a career official to challenge FBI surveillance applications and avoiding important information in footnotes.
While resembling an inspector general inquiry into waste, fraud, and abuse, the report lacks certain checks typically employed in that process, such as allowing individuals and agencies mentioned to provide factual corrections and rebuttals.
Durham's investigation expanded beyond the core question of whether individuals involved in initiating or executing the Trump-Russia probe should be prosecuted. He also examined the handling of unrelated allegations regarding foreign-influence efforts aimed at Hillary Clinton. His aim was to assess whether both sets of allegations were treated with equal rigor and aggressiveness to determine if there was institutional bias against either candidate.
The wide scope of Durham's final report can be attributed to the fact that his inquiry started as a broad review of the origins of the Trump-Russia investigation. Initially, Attorney General Bill Barr assigned Durham to re-review the DOJ Inspector General's decision not to declare political bias in early judgments and errors leading to the Robert Mueller probe. However, Durham's work transitioned into a criminal inquiry within months and retained elements of both a criminal investigation and an after-action report.
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