Andrew McCarthy: Durham indictments – don't be fooled, here's where this case is likely headed
Abuse of political power is not necessarily a violation of the criminal law
{{#rendered}} {{/rendered}}There is a great deal of extravagant commentary in right-leaning media regarding Special Counsel John Durham’s probe into the origins of the Trump-Russia investigation. Trump supporters, in particular, are exuberant at the prospect that Durham, at long last, has cracked the case and is poised to prove a sweeping conspiracy between the Clinton campaign and Obama administration officials to undermine Donald Trump’s 2016 campaign and his presidency.
Those harboring this fantasy are going to be sorely disappointed.
As I argued in my 2019 book, "Ball of Collusion," the Obama administration put the government’s law-enforcement and intelligence apparatus in the service of Hillary Clinton’s campaign and, later, Trump’s Democratic party opposition. In that endeavor, several highly irregular investigative activities took place.
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Nevertheless, abuse of political power is not necessarily a violation of the criminal law. What’s more, because government officials must have broad discretion to commence investigations, especially when national security may be at stake, alleged abuses of that discretion are extraordinarily difficult to prosecute as crimes.
For these reasons, among others, it is virtually certain that the special counsel is veering toward a final narrative report that will be very damning, but not a sweeping indictment that will implicate government officials and the Clinton campaign.
{{#rendered}} {{/rendered}}What has Trump supporters excited is Durham’s two recent indictments, against Democratic party lawyer Michael Sussmann in mid-September and "Steele Dossier" source Igor Danchenko last week.
incompetence, even tinged by malevolence, does not equate to criminal guilt.
These developments have convinced some analysts that Durham has utterly discredited the bogus dossier – commissioned by the Clinton campaign, compiled by former British spy Christopher Steele, and used by the FBI, though never verified, to obtain warrants from a secret federal court. Some experts also suggest that Durham has indicted comparatively low-level players as a building-block to a bigger case against more culpable parties – in the FBI and the Clinton campaign.
It is simply not the case. Take note of the following:
{{#rendered}} {{/rendered}}1. Durham has not charged that there was an overarching conspiracy to defraud the federal court, motivated by a desire to portray Trump as a clandestine agent of Russia. He has merely charged two people with lying to the FBI in investigative interviews.
2. The two defendants recently indicted, Sussmann and Danchenko, are not accused of lying about the substance of the sensational Steele dossier allegations. To the contrary, they are merely accused of lying about their sources. Sussmann, a former government cyber-security lawyer, is said to have misled the FBI by insisting that he did not represent any client in claiming that Trump was using a Russian financial institution, Alfa Bank, to conceal communications with the Kremlin. In reality, it is alleged, Sussmann was a lawyer for the Clinton campaign and for a tech excutive who was hoping for a job in the anticipated Hillary Clinton administration. Danchenko is accused of (a) concealing that some of his information came from a Clinton insider (not named in the indictment but identified in media reporting as Chuck Dolan), and of falsely claiming that some of his information came from a Trump insider (not named in the indictment but identified in media reporting as Sergey Millian).
3. That is, the charges against Sussmann and Danchenko do not rise or fall on whether the Steele dossier is complete fiction or the God’s-honest truth. It is irrelevant. Now, undoubtedly, Durham has concluded the dossier is nonsense – all of the people who once touted appear desperate to distance themselves from it; and Steele himself has described it as "raw" intelligence that needed to be investigated. But that said, Durham has not formally alleged that the dossier is false.
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4. Even in Durham’s first indictment months ago, against FBI lawyer Kevin Clinesmith, he did not allege that the dossier was false. Rather, he accused Clinesmith of withholding a piece of information that was true – namely, that former Trump campaign adviser Carter Page had been an informant for the CIA.
5. Finally, all three of the false-statements indictments Durham has filed so far proceed on the theory that the FBI was duped, not that the bureau intentionally lied to the court. Even the FBI’s Clinesmith was accused of lying to an FBI agent, not to a federal judge. If Durham were building toward an overarching indictment alleging a corrupt conspiracy between the Clinton campaign and the FBI to deceive the court, he would not be charging people with lying to the FBI.
{{#rendered}} {{/rendered}}To be clear, Durham is not claiming that the FBI acted properly. The Justice Department has already been quite clear that the bureau conducted itself abysmally in failing to do rudimentary investigation of what anti-Trump sources were claiming, and in giving misinformation to the FISA court. And the unseemly political animus against Trump on the part of key investigators has been extensively documented by the Justice Department’s inspector general. This was a disgraceful performance by the nation’s premier law-enforcement agency. But incompetence, even tinged by malevolence, does not equate to criminal guilt.
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And from the Clinton campaign’s perspective, it is shameful (maybe even defamatory in a civil-law sense) to spread false innuendo about a political opponent, but it is not a criminal offense. We do not want law-enforcement involved in electoral politics (that is a big part of what was so wrong about the "collusion" caper), so we discourage such prosecutions unless there is strong evidence of clear, direct lying and obstruction to investigators and courts. Where that can be proved, Durham has filed indictments. That doesn’t mean he can make the case against the whole Clinton campaign.
{{#rendered}} {{/rendered}}Durham appears to be convinced that the Clinton campaign concocted the Trump-Russia narrative and peddled it to an all-too-credulous press and Democratic-controlled government. That has the makings of a damning final special counsel report, but not a large-scale indictment.