If No Indictments Prior to the Election, What Is Durham's End Game?

AP Photo/Bob Child, File

I was asked yesterday on Twitter if I still had “hope” in the investigation being done by US Attorney John Durham into the origins of the Russia hoax investigation.

I responded, “Yes, but it depends on what your expectations are with regard to the investigation.”

One comment I received in response asked whether I would set forth my expectations so that my “yes” could be put into context.

I have actually given this subject some thought over the past few weeks as “hopes” dimmed that Durham’s investigation would produce anything tangible ahead of the election.

But as I wrote here, and herehere — and a couple more you can find just by looking at my list of articles on Red State– the mid-September interview of FBI Special Agent William Barnett, and the release of text message communications between SA Barnett and other members of the Crossfire Hurricane team, looked to me to be a very significant development because it opened an entirely new window into the realtime decision-making during the investigation.

Unconfirmed reports, lacking in any significant detail, suggest that Durham’s probe has also gone beyond the original parameters, and he is now looking at matters involving the origins of the “Trump-Russia” hoax which were not part of the investigation when he began.

The public accounting for the start of FBI’s “Trump-Russia” hoax investigation has always pointed to the London pub meeting between Australian Ambassador Alexander Downer and Trump Campaign advisor George Papadopolous.  It has long been suspected that this is nothing more than a “convenient” place for official recountings of the FBI investigation to place the locus for the investigation’s origins, and that the reality of where the matter began is many months before that encounter.

I believe that the recent declassification and release of SOME information about the role of the Clinton Campaign in amplifying the Trump-Russia hoax has also created new investigative leads for Durham.  I think Durham has much more information on that subject than the public has seen.

If I was leading this investigation, I would want to run those down before I started to “show my cards” to my targets by making indictments public.  I expect when an indictment is filed — and I believe one will be filed — it will include an extraordinarily detailed conspiracy count — maybe more than one conspiracy count — laying out the evidence against named and unnamed co-conspirators.  A conspiracy charge includes a section describing the “manner and means” of the conspiracy — how the group planned and executed the objectives of the conspiracy — and a lengthy factual statement of the “overt acts” committed by individual co-conspirators “in furtherance of the objectives” of the conspiracy.

To be legally sufficient, an indictment only needs to describe one overt act.  Historically there was a “practice” of minimizing the number of overt acts set forth in the indictment so as to not provide more information to the defense than the law required.  In the past couple decades the practice has changed, and federal prosecutors now draft what are called “speaking indictments” which are sometimes wildly “over-inclusive” in describing the overt acts.  The reason for doing this is the indictment is a “public record”, and anything in the indictment can be discussed in a press release or at a press conference announcing the case. A classic example of this was the Troll Farm and Russian GRU indictments announced by the Special Counsel’s Office.

If President Trump wins a second term, the delays by Durham will be forgotten before the champagne goes flat.

The question really is “What is the end game if Biden wins?”

My guess is that Durham will have one or more indictments returned in December or early January, ahead of the inauguration.  I think Attorney General Barr will then accept Durham’s resignation as US Attorney and name Durham as a “Special Counsel” under DOJ Regulations in simultaneous actions.  He might do the same thing with US Attorney Jensen in Missouri who seems to be investigating the actual cases brought by the Special Counsel’s Office.

One fact that suggests this as a possible course of action is Andrew Weissmann going public with his criticisms of the regulations and calling for them to be rewritten.

That will provide the outgoing Administration and the Republicans in Congress with a basis to demand during confirmation hearings of Biden Administration nominees that Durham, as Special Prosecutor, be given the same assurances that the cases filed will run their course in the judicial system in the same fashion that the Democrats demanded that Mueller’s filed cases be allowed to run their course when Barr was named to replace Jeff Sessions as Attorney General.

This effort might fail and whoever might be Attorney General in a hypothetical Biden Administration could fire Durham and shut the investigations down.  But that action would have to be taken with all the allegations and evidence — in the form of a detailed and specific conspiracy charge — in full view for the public to see.  The political consequences of taking such action could be quite high – especially if the Republicans still hold the Senate and could grind to a halt the processes needed by a Biden White House to function.

An alternative to issuing an indictment would be a lengthy public report that lays out everything done by specific individuals who are named.  Set aside what you have read about DOJ only “speaking through indictments” and “only in court.”  DOJ policy expressly provides that the Attorney General or other designated individuals authorized by him, can comment publicly on the actions and work of DOJ and other government employees.  In that circumstance, the policy of DOJ to not make public facts about an individual that it is not able/willing to charge as criminal conduct, gives way to the right of the public to know about the official actions taken by DOJ and other government employees that constitute misconduct.  What a Barr/Durham report would chronicle is the actions of DOJ and other government employees in conducting a biased investigation of the Trump campaign first, and later the Trump Administration, for ulterior political purposes.

Again, such a report might fall flat as it will likely be dismissed by the press.  Unless former Obama Administration officials implicated in the report are set to join a hypothetical Biden Administration, the platforms for amplifying the report’s findings would be limited to conservative outlets.  But the persons named will always be “dogged” by the allegations.

I think the Special Counsel designation is the way Attorney General Barr will go, and the nature of the charges and evidence will be given the widest possible dissemination prior to January 21, 2021, in order to put as much pressure as possible on any incoming Biden Administration officials to not immediately “tar” themselves by taking overt political steps to dismantle Durham-led prosecutions.