Special Counsel Durham's Protect-The-Establishment Approach Is Destroying The Country

[Leroy N. Soetoro]

https://thefederalist.com/2022/09/26/special-counsel-durhams-protect-the-
establishment-approach-is-destroying-the-country/

What was judicious a few years ago is foolhardy today because the left has
learned there are no consequences when they abuse the system to attack
conservatives.

Special Counsel John Durham continues to ignore the FBI’s malfeasance in
the Crossfire Hurricane targeting of Donald Trump, a Friday court filing
by prosecutors in the criminal case against Igor Danchenko confirms. While
that approach may have been prudent and in the country’s best interests
three and a half years ago, when then-Attorney General Bill Barr tasked
Durham to investigate the origins of the Russia collusion hoax, it is no
longer judicious.

The special counsel’s failure to appreciate this reality threatens the
government’s case against Danchenko, but more significantly has spurred
the Biden administration, the D.C. deep state, and partisan state
officials to further weaponize the criminal justice system against their
political enemies.

Since May of 2019, when the public first learned that Barr had tasked
Durham — who at the time was the U.S. attorney for Connecticut — to
investigate the origins of Crossfire Hurricane, there have been only three
criminal prosecutions. In August of 2020, Durham obtained a conviction of
former FBI lawyer Kevin Clinesmith, after Clinesmith pleaded guilty to
making a false statement to the government. Clinesmith’s crime consisted
of him altering an email about former Trump campaign adviser Carter Page
to falsely indicate Page had not served as a source for the CIA. For his
offense, Clinesmith received a sentence of 12 months of probation and 400
hours of community service.

In September of 2021, Durham, who by then had been appointed a special
prosecutor, initiated a second prosecution when he indicted former Clinton
campaign attorney Michael Sussmann with one count of lying to former FBI
General Counsel James Baker. That indictment alleged that Sussmann lied
when he provided Baker with data and three “white papers” purporting to
establish a secret communication channel between the Trump organization
and the Russia-based Alfa Bank, telling the former FBI general counsel
that he was sharing the information on his own, when, in fact, according
to the indictment, Sussmann represented the Clinton campaign and tech
executive Rodney Joffe. A D.C. jury acquitted Sussmann in May of 2022.

Next month, the third criminal case related to the Russia collusion hoax
goes to trial in a federal court in Virginia when Durham seeks to convict
Russian-national Danchenko on five counts of lying to the FBI. The special
counsel charged Danchenko late last year with lying to the FBI concerning
his role as Christopher Steele’s primary sub-source. Earlier this month,
Danchenko asked the court to dismiss the charges against him, claiming his
supposed lies to the FBI were not “material” to the government’s
investigation. “Crossfire Hurricane agents never intended to drop their
investigation of Donald Trump, and therefore any lies he told the FBI did
not affect their decision-making,” Danchenko argued in his motion to
dismiss.

As I explained at the time, Danchenko’s argument is wrong as a matter of
law because for a lie to be “material,” “the falsehood need not actually
influence the agency’s decision-making process, but merely needs to be
‘capable’ of doing so. Thus, legally speaking, that the Crossfire
Hurricane team, and later Special Counsel Robert Mueller’s office, seemed
unconcerned with what Danchenko said … is irrelevant. The question is
whether the lie was capable of influencing how a hypothetically
‘objective’ government official would have acted had they known the
truth.”

The reality remains, however, that the jurors will be unlikely to believe
the government’s argument that Danchenko’s alleged falsehoods “were
capable of influencing several decisions of the FBI agents,” unless Durham
“tells the jury that Danchenko’s alleged lies did not actually influence
the government’s investigation because the agents were out to get Trump.”
But additional pre-trial court filings from the last 10 days indicate the
special counsel’s office has no intention of taking that tack, and will
instead argue to the jury “the fact that the FBI apparently did not
identify or address” inconsistencies in Danchenko’s stories or follow up
with his contradiction of the Steele dossier.

This approach seems destined to fail, doubly so given the recent
revelation that the FBI made Danchenko a paid confidential human source
(CHS) in March 2017 — a designation Danchenko held until October of 2020.
The FBI cleared Danchenko as a CHS even though he had been a subject of an
FBI counterintelligence investigation from 2009 to 2011, based on claims
that he had “engaged two fellow employees about whether one of the
employees might be willing or able in the future to provide classified
information in exchange for money.”

That the FBI hired Danchenko as a CHS for years will further bolster
Danchenko’s forthcoming argument to the jury that his supposed lies could
not possibly have been material to the government, especially since
neither the FBI nor Special Counsel Robert Mueller believed Danchenko had
committed a crime.

Why then does Durham appear poised to refuse to reveal to the jury the
real reason his predecessors ignored Danchenko’s apparent lies? Why also
is Durham’s case against Danchenko only the third criminal case from his
multi-year investigation, when evidence suggests several other players,
either within the government or working with the government, engaged in
potentially criminal activity? For that matter, why did Barr refuse to
prosecute former FBI Deputy Director Andrew McCabe for allegedly lying to
investigators when he claimed he had not authorized a media leak about an
investigation into the Clinton Foundation?

A Once-Defensible Mindset
While some critics on the right frame Barr and Durham’s failure to
prosecute more broadly as proof that their goal has always been to protect
the establishment and cover up wrongdoing, an honest assessment of the
former attorney general’s words and conduct suggests a different answer —
one that was reasonable and prudent at the time but can no longer be
justified.

“I love the Department of Justice, I love the FBI, I think it’s important
that we not, in this period of intense partisan feeling, destroy our
institutions,” Barr said in explaining why he did not regret serving as
Trump’s AG. “From my perspective,” Barr added, “the idea of resisting a
democratically elected president and basically throwing everything at him
and, you know, really changing the norms on the grounds that we have to
stop this president, that is where the shredding of our norms and our
institutions is occurring.” So, seeing that our “country was headed toward
a constitutional crisis,” and that the Russiagate narrative was “being
used to cripple his administration and drive him from office,” Barr
accepted the position, believing the president “needed an attorney general
who could stabilize the situation.”

Barr rightly noted in explaining his decision to probe the Crossfire
Hurricane and Mueller investigations that foreign interference in our
elections is bad, but stressed that “it’s just as dangerous to the
continuation of self-government and our republican system … that we not
allow government power, law enforcement, or intelligence power to …
intrude into politics, and affect elections.”

“The use of foreign intelligence capabilities and counterintelligence
capabilities against an American political campaign,” Barr added, “is
unprecedented and it’s a serious red line that’s been crossed.”

As AG, Barr faced the constant wrath of the corrupt media and
congressional Democrats, who falsely portrayed him as Trump’s patsy. When
Mueller failed to redact the Special Counsel report as promised, Barr
issued a letter summarizing the conclusions and then ignored the firestorm
that ensued, accusing him of misleading Americans about Mueller’s
findings. And when Mueller inexplicably refused to reach a decision on
whether obstruction charges against Trump were appropriate, Barr declared
prosecution would not be appropriate. Barr later called “Mueller’s
stewardship of the investigation … outrageous,” and Mueller’s hiring of “a
lot of partisan Democrats, headhunters” inexcusable.

Barr also directed outside U.S. attorneys to investigate the prosecution
of Michael Flynn and directed the dismissal of the criminal case against
Trump’s former national security adviser. Barr also intervened when a
rogue U.S. attorney’s office recommended an excessive sentence for Roger
Stone. And then, of course, Barr’s tasking of Durham to investigate
Crossfire Hurricane and the Mueller investigation and his later stealth
appointment of Durham to continue the investigation under the protection
of a special counsel designation speak not of a man desiring a cover-up to
protect the establishment.

Barr’s goal instead appeared to be to return the DOJ and FBI to their
proper role, where everything is “about the law, and the facts and the
substance,” and “to make sure that government power is not abused and that
the right of Americans are not transgressed by abusive government power.”
But Barr also considered the “pathology of our age” to be the belief that
“simply because circumstances suggest wrongdoing, some set of people
should go to prison for a crime.” “Not all censurable conduct is
criminal,” Barr stressed in his memoir, adding that “the current tendency
to conflate the foolish with the legally culpable causes more harm than
good.”

As AG, Barr also made clear that he would not take creative license with
the federal criminal code “to gin up allegations of criminality by one’s
political opponents based on the flimsiest of legal theories.” Using the
criminal justice system for partisan political ends “is not a good
development” and “is not good for our political life. And “the only way to
stop this vicious cycle, the only way to break away from a dual system of
justice, is to make sure that we scrupulously apply the single and proper
standard of justice for everybody,” Barr stressed, promising justice “will
not be a tit-for-tat exercise.”

This perspective explains the dearth of criminal cases resulting from the
Russia collusion hoax before Barr resigned. And given that Barr personally
tapped Durham to oversee the investigation into the Crossfire Hurricane
and Mueller probes, Durham presumably shares his former boss’s views. But
a prudent exercise of prosecutorial discretion does not equate to a cover-
up of misconduct, and Durham’s speaking indictments in the Sussmann and
Danchenko cases establish that the special counsel will expose the
malfeasance of the DOJ and FBI and their complicity with the Clinton
campaign and other politically motivated actors.

The Sussmann trial likewise exposed many significant details related to
the Russia collusion hoax, and the upcoming Danchenko trial seems sure to
as well, especially with the special counsel revealing on Friday that
Danchenko’s handler will testify. The breadth of DOJ, FBI, and
intelligence agencies’ malfeasance, however, extends much beyond these
cases and the earlier Clinesmith guilty plea, indicating the special
counsel’s office always intended to issue a final report censuring those
responsible for the abuse of government power and the political targeting
of Trump and others connected to him.

But Barr and Durham’s high-minded approach to prosecutorial discretion did
not stop the vicious cycle. On the contrary, the tepid approach to
prosecuting those who abuse government power to target political enemies
emboldened the DOJ, FBI, and intelligence community’s intrusion into
politics and its interference in elections.

Things Got Much Worse
Crossfire Hurricane looks like child’s play compared to the FBI’s direct
interference in the 2020 election, as recently revealed by Facebook CEO
Mark Zuckerberg: The FBI lied to tech giant Facebook, and presumably also
Twitter and others, that the about-to-drop Hunter Biden laptop story was
Russian disinformation, causing the “free press” to censor a story
damaging to the politically favored Democrat candidate.

Barr and Durham’s restraint likewise did not teach the DOJ and FBI to
“scrupulously apply the single and proper standard of justice for
everybody.” Sussmann’s trial revealed this on a small scale when former
FBI General Counsel Baker proved himself a grudging witness against his
friend, so much so that Baker didn’t reveal Sussmann’s damning “I’m coming
on my own—not on behalf of a client or company—want to help the Bureau,”
text message until after the statute of limitations expired for any charge
related to that apparent falsehood.

Baker would later confirm his reluctance to assist the special counsel.
The DOJ’s Office of Inspector General also resisted Durham’s efforts to
convict Sussmann, keeping quiet about several cell phones it had taken
possession of and failing to disclose that Sussmann had met with the
inspector general on behalf of Joffe as well.

The lack of prosecutions and Clinesmith’s slap on the wrist, coupled with
the media’s nonchalance over the DOJ’s political weaponization, instead
convinced the bad actors that they own the DOJ and FBI. Thus Mueller’s pit
bull Andrew Weissmann, fired FBI Director James Comey, and Crossfire
Hurricane lead-hoaxer Peter Strzok unabashedly take to Twitter to cast
Barr and Durham as the corrupt ones or to ignore or laugh about what they
did to the country and Trump. Worse yet, when Durham announced that Sergei
Millian, an innocent American Danchenko framed as a source for the Steele
dossier, refused to testify at Danchenko’s trial because he feared for his
family’s safety and worried rogue FBI agents may attempt to arrest him,
Strzok posted a thread suggesting Millian was “a Russian intelligence
officer or co-optee.”

The Twitter trolling over their misconduct proves minor, though, compared
to the internalizing of the we-own-the-DOJ-and-FBI lesson Democrats
learned. FBI whistleblowers revealed this reality when they told Iowa Sen.
Chuck Grassley: “Washington Field Office assistant special agent in charge
Timothy Thibault and other FBI officials … ‘falsely portray[ed] as
disinformation evidence acquired from multiple sources that provided the
FBI derogatory information related to Hunter Biden’s financial and foreign
business activities, even though some of that information had already been
or could be verified.’” The whistleblowers also told Grassley that “in
August of 2020, FBI supervisory intelligence analyst Brian Auten opened an
assessment, which was used by a team of agents at FBI headquarters to
improperly discredit and falsely claim that derogatory information about
Biden’s activities was disinformation, causing investigative activity and
sourcing to be shut down.”

Since then, and following Biden’s election, the DOJ and FBI have gone
nuclear in political targeting, with the Biden administration running a
redo of the Russia collusion hoax to raid Trump’s Mar-a-Lago home. Yet
even after personally seeing the DOJ and FBI’s deceit, Barr believes the
narrative peddled to justify the search and only hopes his successor,
Attorney General Merrick Garland, will act prudentially, keeping in mind
that “this is a former president.” Prudence has no place in the calculus,
however, because the latest targeting of Trump appears as political as
every former get-Trump effort.

The political weaponization of the DOJ and FBI extends much beyond Trump,
though, with the federal government targeting those in the former
president’s orbit, seizing their cell phones, and likely seeming
interested in prosecuting some of his closest advisers or supporters such
as Rudy Giuliani, Jeff Clark, and Mike Lindell. And while Biden attempts
to portray Trump and “MAGA” — which alone is half the country — as the
only enemies of the state, the DOJ’s political targeting extends much
further, such as framing parents who protest school board decisions as
potential terrorists. The DOJ is also going after nonprofits that lobby
states to pass legislation to protect children from chemical and surgical
castration.

Friday saw a further escalation in the Biden administration’s fight
against political enemies when the FBI reportedly dispatched 20-some SWAT
agents, with guns drawn, to arrest Mark Houck in his house, terrifying his
wife and seven children. Houck’s alleged crime? Supposedly violating the
federal access to clinics law when he pushed someone connected to the
clinic after the individual allegedly continued to harass Houck’s 7-year-
old son. Yet Garland and FBI Director Christopher Wray have left
unmolested those protesting illegally outside the home of conservative
Supreme Court justices and seem unconcerned with the destruction of
pregnancy and family resource centers.

State attorneys general and prosecutors have likewise learned the lesson —
that the targeting of conservatives will be tolerated — as seen last week
when New York’s Democrat AG Letitia James filed suit against Trump and his
children, Don Jr., Eric, and Ivanka, alleging in a sprawling 200-plus-page
complaint that “the Trump Organization committed all kinds of fraud in
inflating real estate assets to get more favorable loans.”

In Michigan, the target is Trump-endorsed AG candidate Matthew DePerno,
whom his Democrat opponent, Dana Nessel, made the subject of a special
prosecutor investigation based on DePerno’s role in challenging the
outcome of the 2020 election. Targeting of Republicans by Fulton County
prosecutor Fani Willis proves even more widespread, with the Georgia
prosecutor launching a “special grand jury” investigation into the 2020
election and subpoenaing several big-name Republicans, including Sen.
Lindsey Graham; Trump’s election lawyers, Giuliani, John Eastman, Jenna
Ellis, and Cleta Mitchell; and many state-level Republicans.

When Barr joined the Trump administration as AG in 2019, his apparent
approach to righting the DOJ and FBI appeared eminently reasonable: Expose
and remove those engaged in misconduct; reestablish the criminal process
as sacrosanct, ensuring there is no political interference; and prove to
the public, political appointees, and career employees that the DOJ will
not be “used as a political football” by exercising prosecutorial
discretion cautiously and by sparingly resorting to the criminal process
to obtain justice. Durham’s similar approach to probing Crossfire
Hurricane and Mueller’s investigation likewise rested within the realm of
“reasonableness.”

But what was judicious nearly three and a half years ago proves foolhardy
today because Barr and Durham’s discretion taught the left only one
lesson: There will be no consequences to those who abuse the justice
system to attack conservatives.

While it may be too late now to reverse course, with the statute of
limitations likely expired on several of the crimes, if Durham is debating
a broader conspiracy charge, prudence now compels a course change with
every plausible charge filed against everyone complicit in the hoax and
investigation. Nothing less will save the DOJ and FBI — and our country.


--
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Thank you for cleaning up the disaster of the 2008-2017 Obama / Biden
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Under Barack Obama's leadership, the United States of America became the
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President Trump boosted the economy, reduced illegal invasions, appointed
dozens of judges and three SCOTUS justices.