Special counsel John Durham’s stinging loss in federal court this week cast doubt over the future of his probe of U.S. intelligence community wrongdoing in pursuing Trump-Russia collusion theories, but the Durham team still has a narrow window to redeem themselves.
Even if Attorney General Merrick Garland wants to pull the plug on Mr. Durham’s investigation, he must wait until after the special counsel’s next trial in October.
That’s when the Durham team gets a crack at a key figure in compiling the unverified and now mostly debunked dossier that spawned a host of Trump-Russia collusion theories.
“Garland doesn’t strike me as someone looking for an aggressive political move here,” said University of Illinois law professor Andrew Leipold, who was a member of independent counsel Kenneth W. Starr’s team that investigated President Clinton.
“I could see Garland letting Durham run out the string, bring whatever is in the pipeline and start wrapping up,” he said.
Rumblings that Mr. Durham may be a short-timer started after a federal jury acquitted Michael Sussmann, an attorney for Hillary Clinton’s campaign, on one count of lying to the FBI. The case was brought and tried by prosecutors with Mr. Durham’s team.
Few Democrats have come out to call for an end to the Durham probe, and Republicans are also quiet.
Sen. Marsha Blackburn, Tennessee Republican, was one of the few lawmakers who spoke out about the Sussmann case.
“Michael Sussmann lied to the FBI about working for the Clinton campaign when he brought forward false allegations against Pres. Trump — that Hillary personally approved,” she said in a post on Twitter. She said the verdict “while deeply disappointing, is not the end of ensuring this never happens in America again.”
Sen. Ron Johnson, Wisconsin Republican, also chimed in. “Further proof there are separate systems of justice in America — one for liberal Democrats and their elite backers, and one for everyone else. Sad,” he said.
Mr. Durham accused Mr. Sussmann of lying to the FBI when he told a top bureau lawyer in 2016 that he was not representing any client when he passed along a false theory linking presidential candidate Donald Trump to a Russian bank.
The Washington jury wasn’t convinced and acquitted Mr. Sussman.
Mr. Durham’s team will have a second chance at the October trial of Russian analyst Igor Danchenko.
A former analyst at the Brookings Institution, Mr. Danchenko is charged with five counts of lying to the FBI about how he gathered information that ended up in former British spy Christopher Steele’s dossier of unverified and salacious accusations tying Mr. Trump to Russia.
Prosecutors say the information Mr. Danchenko gathered was built on exaggerations, rumors and outright lies. The indictment also suggests that Mr. Danchenko lied to Mr. Steele about how he was getting his information.
Mr. Danchenko is accused of intentionally misleading the FBI when he denied in a 2017 interview that his primary source for a section of the dossier was Charles H. Dolan Jr., a former aide to Mrs. Clinton.
Jonathan Turley, a law professor at George Washington University, said the Danchenko and Sussmann cases are vastly different.
“The defense faces a greater challenge in the Danchenko case,” he said.
In a 24-page ruling last month, Judge Cooper said Mr. Sussmann was not charged with a conspiracy so evidence suggesting such a crime would “confuse the jury and distract them from the issues at hand.”
“The Sussmann trial was sharply limited by the court, both in the scope and examination of evidence,” Mr. Turley said. “But even with the limits imposed by the court, we’ve gained glimpses of new evidence that John Durham has been able to uncover.”
Perhaps the biggest bombshell in the case was Mr. Durham’s revelation in February that technology researchers “exploited” access to Mr. Trump’s servers to find damning information about him.
“There were a great number of new disclosures by John Durham ahead of the Sussmann trial about how the Russian collusion narrative was created with the help of the Clinton campaign and other figures in Washington,” Mr. Turley said.
Still, some wonder whether that will be enough to keep Mr. Durham’s investigation going. Mr. Trump’s allies have been frustrated that the special counsel has failed to deliver the kinds of bombshell indictments that the former president predicted.
Since his appointment three years ago, Mr. Durham has brought only three indictments. In addition to Mr. Sussmann and Mr. Danchenko, he also indicted low-level FBI attorney Kevin Clinesmith on a charge of falsifying evidence. He pleaded guilty to doctoring an email to justify the continued surveillance of a Trump campaign aide and was sentenced to probation.
In less time, special counsel Robert Mueller’s probe into Russian interference in the 2016 election netted 34 indictments, including seven members of Mr. Trump’s inner circle.
“If Durham’s team viewed the first two cases as easy wins to give the investigation credibility, the Sussmann verdict was a huge setback,” Mr. Leipold said. “No matter how you slice it, it is not good and no one in that office can be happy with this outcome.”
The continuation of Mr. Durham’s probe is up to Mr. Garland, though it is difficult to fire a special counsel.
Under Justice Department regulations, Mr. Garland can fire Mr. Durham only for “good cause,” such as misconduct or conflict of interest. If Mr. Garland moves to terminate the special counsel’s investigation, he must spell out the reason in writing.
However, an attorney general can constrain a special counsel by blocking any investigative or procedural step Mr. Durham recommends, such as bringing an indictment or subpoena if he determines it is unwarranted or inappropriate.
Mr. Garland is required to notify Congress of such a decision.
During appearances before Congress, Mr. Garland pledged that there would be no political interference with Mr. Durham’s probe, and he hoped to make as much of the findings public as allowed under the law.
• Jeff Mordock can be reached at email@example.com.
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