Notes on the Durham Report: A Reading Diary

On Monday, the Justice Department released the Durham Report—the long-awaited account by Special Counsel John Durham of his investigation into the conduct of the 2016 Russia investigation. Yesterday, I read the executive summary and formed some initial impressions. Starting Wednesday, however, I am reading the entire document carefully, starting at the beginning. Much as I did when I wrote a reading diary of the Mueller Report back in 2019,  I will be writing up my thoughts as I go in this post. There will be no cohesive argument to this journal. It will simply be a collection of my observations, questions, and thoughts as I go through the document. It will get long. I will mostly not attempt to summarize the underlying document, merely to reflect on it, but I will organize this post by document section, so that you can read it as a commentary on the actual text. I will update the post as I read. I hope people find it useful.

The following table of contents are links to the sections of this journal, which correspond to sections of the report itself:

Introduction and Executive Summary

III. APPLICABLE LAWS AND DEPARTMENT AND FBI POLICIES

Introduction and Executive Summary

I am largely going to skip over the report’s front matter, including the executive summary, which largely summarizes information discussed in more detail elsewhere in the document. But there are three points in the report’s first 17 pages that seem to me worth highlighting. 

The first is the emphatic and unequivocal statement, made twice, that Durham was permitted to conduct his investigation with full independence and without Justice Department interference. The first of these occurs in his cover letter transmitting the report to Attorney General Merrick Garland, in which Durham writes, “Finally, we want to thank you and your Office for permitting our inquiry to proceed independently and without interference as you assured the members of the Senate Judiciary Committee would be the case during your confirmation hearings to become Attorney General of the United States.” Durham repeats this sentiment on the third page of the report itself: “The Office very much appreciates the support, consistent with his testimony during his confirmation hearings, that the Attorney General has provided to our efforts and the Department's willingness to allow us to operate independently.”

This should put to rest any questions about whether Durham would be able to finish his investigation unimpeded or whether the Democratic administration might put any strictures or limits on his probe. By his own account, it did not. We should, therefore, take his report as reflecting an account of his conclusions following an investigation that was exactly as exhaustive as he thought it should be. Indeed, Durham writes, “The Office's investigation was broad and extensive. It included investigative work both domestically and overseas. It entailed obtaining large document productions from businesses, firms, government agencies, universities, political campaigns, internet service providers, telephone companies, and individuals. The Office interviewed hundreds of individuals, many on multiple occasions.” Neither the introduction nor the executive summary contains a word suggesting that inappropriate limits were put in its way.

Second, the executive summary usefully identifies the five major questions the report tries to address: 

• Was there adequate predication for the FBI to open the Crossfire Hurricane investigation from its inception on July 31, 2016 as a full counterintelligence and Foreign Agents Registration Act ("FARA") investigation given the requirements of The Attorney General's Guidelines for FBI Domestic Operations and FBI policies relating to the use of the least intrusive investigative tools necessary?
• Was the opening of Crossfire Hurricane as a full investigation on July 31, 2016 consistent with how the FBI handled other intelligence it had received prior to July 31, 2016 concerning attempts by foreign interests to influence the Clinton and other campaigns? 
• Similarly, did the FBI properly consider other highly significant intelligence it received at virtually the same time as that used to predicate Crossfire Hurricane, but which related not to the Trump campaign, but rather to a purported Clinton campaign plan "to vilify Donald Trump by stirring up a scandal claiming interference by Russian security services," which might have shed light on some of the Russia information the FBI was receiving from third parties, including the Steele Dossier, the Alfa Bank allegations and confidential human source ("CHS") reporting? If not, were any provable federal crimes committed in failing to do so? 
• Was there evidence that the actions of any FBI personnel or third parties relating to the Crossfire Hurricane investigation violated any federal criminal statutes, including the prohibition against making false statements to federal officials? If so, was that evidence sufficient to prove guilt beyond a reasonable doubt? 
• Was there evidence that the actions of the FBI or Department personnel in providing false or incomplete information to the Foreign Intelligence Surveillance Court ("FISC") violated any federal criminal statutes? If so, was there evidence sufficient to prove guilt beyond a reasonable doubt?

“Our findings and conclusions regarding these and related questions are sobering,” Durham writes.

But, third, there is a big question missing from this list, and it is the question that launched the Durham investigation in the first place. Remember that Durham was not initially appointed as a special counsel. Back in 2019, then-Attorney General Bill Barr asked him to conduct an internal “review” of what Barr later termed “certain intelligence and law-enforcement activities surrounding the 2016 presidential election.” That review was not just about the Steele Dossier and the Carter Page FISA requests. It dealt, bizarrely, with the question of whether the FBI was lying about the origins of the Russia investigation. The FBI had claimed—and Special Counsel Robert Mueller had affirmed—that the whole thing started when an Australian diplomat named Alexander Downer provided the U.S. with information that a Trump campaign advisor named George Papadopoulos had volunteered in a London meeting over drinks that the Russians had “dirt” on Clinton in the form of “thousands of emails.” But a bunch of Trump supporters ginned up a set of conspiracy theories that this was not how the investigation started, that it all started with Steele, or some secret informant, or that the CIA was involved somehow. Barr had been quite indiscreet about his own conspiracy theories about the Russia investigation, talking openly in congressional hearings about “spying” on the Trump campaign. And major newspapers reported on how he and Durham had traveled overseas together seeking cooperation from foreign allied governments to upend the supposed Australian origins of the investigation. The Washington Post, for example, reported in September 2019 that:

Barr has already made overtures to British intelligence officials, and last week the attorney general traveled to Italy, where he and Durham met senior Italian government officials and Barr asked the Italians to assist Durham, according to one person familiar with the matter, who spoke on the condition of anonymity to discuss a sensitive issue. It was not Barr’s first trip to Italy to meet intelligence officials, the person said. The Trump administration has made similar requests of Australia, said people who discussed the interactions on the condition of anonymity because they involve an ongoing investigation and sensitive talks between governments.

The executive summary actually answers the question of when the Russian investigation started, and it does so unequivocally:

As set forth in greater detail in Section IV.A.3 .b, before the initial receipt by FBI Headquarters of information from Australia on July 28, 2016 concerning comments reportedly made in a tavern on May 6, 2016 by George Papadopoulos, an unpaid foreign policy advisor to the Trump campaign, the government possessed no verified intelligence reflecting that Trump or the Trump campaign was involved in a conspiracy or collaborative relationship with officials of the Russian government. Indeed, based on the evidence gathered in the multiple exhaustive and costly federal investigations of these matters, including the instant investigation, neither U.S. law enforcement nor the Intelligence Community appears to have possessed any actual evidence of collusion in their holdings at the commencement of the Crossfire Hurricane investigation. (p. 8)

In other words, the FBI was telling the truth all along, and Mueller was right. And Inspector General Horowitz was right as well to affirm that story. And there was no conspiracy involving the CIA or the Italians or a confidential human source. And there was no secret “spying” on the Trump campaign. 

But ironically, Durham turns all this on its head and makes it seem like a bad thing that the FBI had no prior evidence of collusion when it opened the investigation following the Downer allegations. 

I will treat this issue at greater length when I get to Section IV, where Durham himself lays out his evidence on the point. For now, let me just say that it seems exceptionally ungraceful of Durham not to say right up front that he investigated at length a series of conspiracy theories about the origins of the investigation and found no evidence of any of them. And it seems perverse that having found that, after all, the FBI’s account of the investigation’s origins was truthful, that he pauses not a moment to acknowledge that fact and to debunk the conspiracies theories before pivoting to bashing the bureau for opening its investigation without “(i) any significant review of its own intelligence databases, (ii) collection and examination of any relevant intelligence from other U.S. intelligence entities, (iii) interviews of witnesses essential to understand the raw information it had received or (iv) using any of the standard analytical tools typically employed by the FBI in evaluating raw intelligence.”

As I say, I will deal with this issue in greater depth when I deal with Section IV.

III. APPLICABLE LAWS AND DEPARTMENT AND FBI POLICIES

To a considerable degree, Durham shows his cards in what should be a mundane discussion of the relevant laws and governing policies implicated by his investigation. 

He begins with a rather defensive account of the guidance in the Principles of Federal Prosecution as articulated in the Justice Manual. Given that Durham lost both of the cases he took to trial—in both instances after remarkably short jury deliberations—and faced much criticism for them, it is certainly no accident that he includes in this account that “the likelihood of an acquittal due to unpopularity of some aspect of the prosecution or because of the overwhelming popularity of the defendant or his/her cause is not a factor prohibiting prosecution.”

He then turns to the FBI’s policies surrounding assessments and investigations of counterintelligence matters. His focus? The subheadings here are revealing: “Use of least intrusive means,” “Levels of investigation,” “The Confidential Human Source Guidelines,” “Analytic integrity.” Durham even has a subsection devoted to “Recently upgraded protections,” which is to say rules that have been put in place since the Russia investigation and in response to it but which were not in place at the time it was conducted. Following this is a long discussion of the requirements of the Foreign Intelligence Surveillance Act (FISA), which focuses on the protection of First Amendment protected activity. 

You can tell just by looking at these sections that Durham is going to find that the FBI did not use the least intrusive means of responding to the Downer information, that it opened Crossfire Hurricane at the wrong level of investigation, that it didn’t handle its confidential human source (presumably Steele) appropriately, that it didn’t respond with analytic integrity to information as it came in, and that it didn’t comply with FISA. 

Some of these points are true—and they have been known since the inspector general’s report back in 2019. Some of them are absurd. But they cumulatively offer a window into Durham’s thinking through the investigation. He is examining what he considers the FBI’s overreaction to the problem of Trump’s and his campaign’s and business’s relationship with Russia in 2016 and 2017—and how that overreaction might have violated FBI or DOJ policy or the law. 

This becomes even clearer as Durham turns to what he terms “the principal statutes that we considered to evaluate possible criminal conduct” in the investigation. Those statutes include some laws that almost any investigation would look at: the false statements statute (18 U.S.C § 1001), the perjury statute (18 U.S.C. § 1621), the law forbidding falsification of records (18 U.S.C. § 1519), and the obstruction of justice statute (18 U.S.C. § 1512(c)). 

But it also includes some very suggestive laws. Durham considered cases under the law prohibiting the violation of civil rights (18 U.S.C. § 242), for example. Now whose civil rights do you imagine the FBI might have been violating in Durham’s view? 

He looked at conspiracy to violate civil rights (18 U.S.C. § 241), perhaps imagining Jim Comey and Andy McCabe huddled in a room feeding dog treats to Pete Strzok while plotting about how to mess with poor Donald Trump and paint him as a tool of the Russians. He looked at more general conspiracies under 18 U.S.C. § 371, which is a useful statute if you’re pursuing conspiracy theories. He looked at illegal campaign contributions under 52 USC § 30116(a)(1)(A) and illegal foreign campaign contributions under 52 U.S.C. § 30121(a)(1)(A). 

He looked at money laundering under 18 U.S.C. § 1956(a)(1)(A). He even looked at disclosure of national defense information under 18 U.S.C. § 793(d). 

And, of course, he looked at fraud against the United States under 18 U.S.C. § 1031(a). 

I swear I’m not making any of this up. Durham appears to be admitting here what a bunch of analysts—myself included—have suspected for while: that he saw this investigation as an effort to expose and prosecute a malicious effort by the Hillary Clinton campaign to defraud the FBI into investigating Trump and thereby violate his civil rights, and the dupes at the FBI who either colluded with or fell for this effort. 

Remember, this entire investigation produced exactly one conviction—on exactly one count—and it didn’t have anything to do with any such nonsense.