''SPINNING WHEELS''
JOHN DURHAM
On the Special Counsel’s Weird Prosecution of Michael Sussmann
By Benjamin Wittes Monday, September 20, 2021, 12:21 PM
https://www.lawfareblog.com/special-counsels-weird-prosecution-michael-sussmann
…Attorney General William Barr appointed John Durham, lo these increasingly-many years ago, to investigate a supposed scandal inside the FBI: There had been an attempted coup, President Trump alleged, and Barr himself hinted that there had been an effort spuriously to investigate a candidate for president. The FBI counterintelligence investigation of figures surrounding Donald Trump, the attorney general warned darkly, may have begun earlier than the FBI said it did. It may not have been properly predicated. There may have been other agencies involved.
Durham himself at times lent his solid reputation as a career prosecutor to such fantasies. When the Justice Department’s inspector general found that the investigation of L’Affaire Russe had been properly predicated and had, in fact, begun when the FBI always said it had, Durham publicly questioned the judgment. He also has taken a mind-bogglingly long time to complete his as-yet almost-wholly unproductive investigation, which has gone on longer than the Mueller investigation itself, building up expectations among many Trump supporters that Durham was going to deliver the goods.
And until this week, Durham’s investigation had added exactly zero new facts to the public’s understanding of the FBI’s handling of the Russia matters. The only case he had brought—against a low-level FBI lawyer for altering a document in connection with a surveillance application—was entirely derivative of facts developed by the inspector general….
…So What is this Really About?
Nothing I have said so far is news to John Durham… So what is he up to here?
I think the Sussmann case—particularly given the lengthy and irrelevant verbiage about the efforts of the Clinton campaign, its lawyers, cybersecurity experts and private investigators—is an effort to pressure Sussmann to cooperate with a broader effort to prosecute Clinton-world operatives for an attempt to defraud the FBI on Trump-Russia matters…
But there are two big problems with this approach. The first is that digging dirt on political opponents and trying to interest law enforcement in that dirt is not presumptively a crime. It’s presumptively the ugly normal of political campaigns. In the particular case of Donald Trump, who in fact had extensive connections with Russia about which he was actively lying, it was also a perfectly valid line of opposition research. While one cannot peddle information one knows to be false to the FBI without violating the law, that is not what Durham is alleging here about Sussmann.
More fundamental, however, is the fact that the Russia investigation in the main did not turn on these efforts or flow from them. The Alfa Bank investigation in the Bureau went nowhere. The Steele Dossier affected only the Carter Page matter, which was only one relatively unimportant thread of the larger Russia investigation. While a bad FISA application is always important, the errors in the Carter Page FISA matter did not affect anything beyond the surveillance of Carter Page.
Indeed, none of what we think of as the fruits of the Russia investigation had anything to do with Clinton-world opposition research efforts. Not the Papadopoulos matter. Not the Michael Flynn investigation. Not the investigation of Paul Manafort and his business relationship with the Russian intelligence officer Konstantin Kilimnik. Not the indictment of Russian intelligence officers for hacking and dumping Democratic emails—all with the public endorsement of Donald J. Trump. Not the investigation of Roger Stone. And not the indictments of other Russian operatives for social media manipulations. The extensive findings of the Mueller Report depend not a whiff on Perkins Coie or FusionGPS.
Not even if Michael Sussmann lied to Jim Baker about his clients.