What Durham Is Investigating and Why It Poses a Danger to US Intelligence Analysis

In October 1972, despite a sizable lead in all the pre-election polls, President Richard Nixon had his national security advisor, Henry Kissinger, convene a press conference a mere 12 days before the November 7th presidential election to announce that “peace is at hand” in Vietnam. Nixon had pledged to end the Vietnam War during his first term as president but, notwithstanding his failure in achieving that goal, the announcement effectively negated any advantage that his opponent, George McGovern, may have held on the Vietnam issue, and Nixon cruised to victory in one of the largest presidential landslides in history.

Since then, the specter of an “October Surprise” has loomed over many a presidential campaign. In 1980, Ronald Reagan feared a last-minute deal with Iran that would release the American hostages and, perhaps, swing the election to the incumbent, President Jimmy Carter. In 1992, the independent counsel’s indictment of several Reagan administration officials, who were also linked to candidate George H.W. Bush, for alleged misdeeds in connection with the Iran-Contra scandal, was viewed by many as deliberately timed to harm Bush’s reelection. Then, in 2016, there was a barrage of competing disclosures in October, which were viewed by many as timed to influence the outcome of the election. First, an audio tape was released on which Republican nominee Donald Trump, using explicit language, claimed that women let him kiss and grope them because he is “a star.” That same day, WikiLeaks began a two-month campaign of releasing hacked emails and excerpts from the account of Democratic candidate Hillary Clinton’s campaign manager, John Podesta, leading to news stories that cast Clinton in a strongly negative light. Still later in October 2016, FBI Director James Comey wrote to Congress advising that he intended to take “appropriate investigative steps” to review recently discovered emails related to the FBI’s investigation of Clinton’s use of a private email server.

So, the “October Surprise” has a notable, if not necessarily laudable, place in the annals of American presidential politics. Now, as the calendar moves toward November 3, one wonders whether the long-running investigation shepherded by John Durham, U.S. Attorney for Connecticut, and hand-picked by Attorney General William Barr, is being readied for a role as the next election-shaping “October Surprise.” If true, the reported nature of Durham’s investigation poses a serious threat to US foreign intelligence collection and analysis extending well beyond any political impact.

I. Who is John Durham?

Durham currently serves as the U.S. Attorney for the District of Connecticut. He is a long-tenured figure in the Justice Department, having served as a federal prosecutor since 1982, with involvement in a number of highly publicized prosecutions.

He has been appointed to serve as a special investigator for the Justice Department on four separate occasions. In 1999, amidst allegations that FBI informants James “Whitey” Bulger and Stephen “the Rifleman” Flemmi had corrupted their FBI handlers, Attorney General Janet Reno appointed Durham to oversee a task force investigating the handling of informants by the FBI’s Boston field office. In 2002, Durham helped secure the conviction of retired FBI agent John J. Connolly Jr. on federal racketeering charges for protecting Bulger and Flemmi from prosecution, and warning Bulger to flee just before the gangster’s 1995 indictment.

In 2008, Attorney General Michael Mukasey appointed Durham to investigate the destruction of CIA videotapes taken of terrorist detainee interrogations. Two years later, in November 2010, Durham closed that investigation without recommending that any criminal charges be filed. Durham’s final report regarding the CIA videotape destruction remains secret, despite being sought in an unsuccessful lawsuit brought under the Freedom of Information Act by New York Times reporter Charlie Savage.

In 2009, while still handling the CIA videotape investigation, Durham’s mandate was expanded by Attorney General Eric Holder to include examining the legality of the CIA’s use of so-called “enhanced techniques” in its interrogation of detainees. Durham’s announced instructions were to examine only those interrogations that had transgressed “the officially sanctioned guidelines,” with Holder announcing that interrogators who had acted in “good faith,” based on the guidance found in the torture memos issued by the Bush administration, were not to be prosecuted. In June 2011, the Justice Department issued a press release stating that Durham’s investigation had “examined any possible CIA involvement with the interrogation of 101 detainees who were in United States custody subsequent to the terrorist attacks of September 11, 2001” (a number of whom were determined to have never been in CIA custody). According to the DOJ press release, Durham recommended that a full criminal investigation be conducted with respect to two of those detainees who had died in custody, but the criminal probe was concluded with no criminal charges filed.

Thus, Durham’s prosecutorial portfolio is unquestionably impressive, but he has never worked for an intelligence agency and, other than his involvement with the CIA in connection with both the videotape and enhanced interrogation inquiries, he has no publicly reported background in intelligence operations or analysis. It also bears note that while some may view Durham’s prior interaction with the CIA as indicative of an inclination to protect intelligence agencies, it is equally suggestive of Durham’s ability to discern the chosen outcomes sought by those political appointees who selected him and to deliver those outcomes.

II. What is John Durham doing now?

What Durham is currently doing is a bit harder to describe. From all appearances, he is engaged in a sweeping global probe of the circumstances surrounding the investigation of the Trump Campaign’s connections with Russia, an undertaking which apparently embraces the activities of both the FBI, in its Crossfire Hurricane counterintelligence investigation, and of the continuation of that probe by Special Counsel Robert Mueller. Reports indicate that Durham’s investigative portfolio has repeatedly expanded and now also extends to leaks viewed as harmful to the start-up of the Trump administration, to the unmasking of Michael Flynn, to activities in Ukraine that almost certainly include alleged activities of Hunter Biden, and, more broadly, to the U.S. Intelligence Community (IC)’s assessment that Russia affirmatively sought to help Trump win the presidency in 2016.

The exact contours of Durham’s mandate are a matter of interpolation since, but for one notable occasion, Durham, himself, has been consistently tight-lipped about his activities. But Durham’s boss, Barr, and Barr’s boss, Trump, have been less reticent. The first inkling that an undertaking like the one Durham is now pursuing was on Barr’s “to-do” list was voiced by Barr, himself, during his confirmation hearing for attorney general on January 15, 2019. Barr promised the Senate Judiciary Committee that he would examine the FBI’s counterintelligence investigation against the Trump Campaign saying that “the best policy is to allow light to shine in.” Thus, the Mueller investigation, then still a few months short of concluding, was on notice that the second-guessing was about to begin.

The Special Counsel closed his investigation and submitted his final report to the Attorney General on March 22, 2019, roughly one month after Barr was sworn into office. Two days later, eschewing any notion of abstaining from comment while the Justice Department reviewed the report internally, Barr sent his own controversial summary of the report to Congress. Three days after Barr’s summary, Mueller wrote to Barr saying that

the summary letter that the Department sent to Congress and released to the public late in the afternoon of March 24 did not fully capture the context, nature, and substance of this Office’s work and conclusions.

Since March of 2019, the jousting over the Mueller Report, as well as the prosecutions spawned by the Special Counsel’s investigation, has continued relatively unabated.

On March 25, 2019, between the release of Barr’s tendentious summary of the Mueller Report and Mueller’s letter questioning that summary, Justice Department records show that Barr and his close advisers met with Durham, along with three members from DOJ’s logistics and staffing division. While the records offer no indication of what Barr and Durham discussed that day, it seems highly likely that the conversation broached the topic of the investigation that Durham would soon lead. Other DOJ records reflect that, after that March day, Barr and Durham had at least 18 subsequent scheduled meetings and three scheduled phone calls in 2019. Whether additional unscheduled contacts occurred is not publicly known but, by any measure, Durham enjoyed considerable face time with Barr in 2019.

The Attorney General “clarifies” the scope of Durham’s inquiry, and is provided unprecedented powers to advance it.

If Durham has remained largely mute over the nature of his investigation, Barr has been more forthcoming. In April 2019, Barr told a Senate Appropriations subcommittee that he intended to review “both the genesis and the conduct of intelligence activities directed at the Trump campaign during 2016.” He further intimated that the inquiry would cover the FBI’s investigation of Trump and “intelligence agencies more broadly” and justified the inquiry by saying that “spying on a political campaign is a big deal” and “did occur” in the 2016 inquiry launched at the Trump Campaign.

Two days after this Senate subcommittee hearing, records show a top Barr aide (Seth DuCharme) emailed Justice Department Inspector General (IG) Michael Horowitz thanking Horowitz for affording the opportunity to have him “explain what John and [redacted] and I are working on.” The email was copied to “Durham, John (USACT) [i.e., U.S. Attorney for Connecticut].” Notably, by this time in April 2019, DOJ IG Horowitz already had spent more than a year conducting his own investigation into the origins and operational aspects of the FBI’s Crossfire Hurricane investigation.

In May 2019, the New York Times reported that Barr had appointed Durham “to examine the origins of the Russia investigation,” and the Wall Street Journal expanded that description, saying that Durham had been tasked with evaluating “whether the government’s intelligence-gathering efforts in the early stages of the [FBI’s] probe were legal and appropriate.” According to Justice Department officials, Durham’s probe quietly absorbed a separate investigation by the U.S. Attorney in Utah, John Huber, which had also been examining the FBI’s surveillance of Carter Page, and other FBI conduct. Barr told Fox News that he wanted to know whether “it [the FBI investigation] was adequately predicated” because

the use of foreign intelligence capabilities and counterintelligence capabilities against an American political campaign to me is unprecedented and it’s a serious red line that’s been crossed.

He said he was determined to find out whether “government officials abused their power and put their thumb on the scale” at the outset of the Russia probe.

I’ve been trying to get answers to the questions and I’ve found that a lot of the answers have been inadequate and some of the explanations I’ve gotten don’t hang together, in a sense I have more questions today than when I first started.

At this point, Durham’s investigation was still termed a “review” and lacked subpoena power, but Barr was busily pulling levers to get Durham any access he considered necessary. Barr has leaned on CIA Director Gina Haspel and FBI Director Christopher Wray to provide assistance, and, on May 23, 2019, Trump announced that, at Barr’s request, the IC had been directed “to quickly and fully cooperate with the Attorney General’s investigation into surveillance activities during the 2016 Presidential election.” Trump supplemented this directive by issuing a presidential memorandum that authorized Barr to “declassify, downgrade, or direct the declassification or downgrading of information or intelligence that relates [to the Durham probe].” This represented an unprecedented delegation of authority to the attorney general with respect to the protection of intelligence sources, methods, and tradecraft.

Barr and Durham proceeded to crisscross the globe, seeking, as Barr was quoted, “the underlying intelligence that sparked the bureau’s decision to open the counterintelligence investigation, as well as the actions officials took based on that intelligence.” Among other peregrinations, in the second half of 2019, Barr was in Rome at least twice, and visited London once, while also having Trump contact British Prime Minister Boris Johnson to insure Durham received any necessary assistance. Barr reached out to the Australian government to secure Durham the opportunity to interview Alexander Downer, the Australian government official with whom George Papadopoulos had met. Then, in the infamous July 25, 2019, telephone call between Trump and Ukrainian President Volodymyr Zelenskyy, Trump requested that Zelenskyy speak with Barr and Rudy Giuliani, and former White House Chief of Staff Mick Mulvaney later suggested that Trump’s queries to Zelenskyy were related to Durham’s investigation.

By October 2019, the New York Times was reporting that Durham’s inquiry was pursuing the existence of anti-Trump bias and “whether CIA officials might have somehow tricked the FBI into opening the Russia investigation.” On the same day that this reporting appeared in the New York Times (October 19th), NBC reported that Durham

expressed his intent to interview a number of current and former intelligence officials involved in examining Russia’s effort to interfere in the 2016 presidential election, including former CIA director John Brennan and former director of national intelligence James Clapper.

Just days later, the New York Times reported that Durham’s probe had officially morphed into a criminal investigation; although, neither the Times, the Washington Post, nor the Wall Street Journal was able to say just what crime Durham was investigating or when the transition to a criminal probe had occurred. Later press reports suggested that the transition was triggered, at least in part, by IG Horowitz’s referral to Durham of his discovery that a lawyer in the FBI’s Office of General Counsel had doctored an email from the CIA that was subsequently relied upon in the FBI’s FISA applications seeking authority to surveil Carter Page after he left the Trump Campaign. No official order, memorandum, or internal directive initiating the Durham investigation or appointing Durham to run it, if any exists, has ever been disclosed by the Justice Department.

In December 2019, Horowitz released a redacted version of his report. The Horowitz Report made no reference to the Durham investigation, but among the findings and conclusions he reached, the one that seems to most closely encroach upon the areas Durham is pursuing is Horowitz’s conclusion that Crossfire Hurricane was adequately authorized and predicated under prevailing Justice Department and FBI policies. Despite this conclusion, Barr was quick to comment on the report, saying:

The Inspector General’s report now makes clear that the FBI launched an intrusive investigation of a U.S. presidential campaign on the thinnest of suspicions that, in my view, were insufficient to justify the steps taken.

Then, shortly after the release of Barr’s statement, Durham, through the Justice Department, released his own comments, stating,

[l]ast month, we advised the inspector general that we do not agree with some of the report’s conclusions as to predication and how the FBI case was opened.

Continuing, Durham noted that, unlike the resources available to Horowitz, his inquiry had access to “developing information from other persons and entities, both in the U.S. and outside of the U.S.” The New York Times reported that even Durham’s allies expressed surprise at his decision to speak out while conducting what the Times described as “the most politically charged role in [Durham’s] career.”

In Horowitz’s testimony before the Senate Judiciary Committee, he disclosed that Durham had informed him that Durham did “not necessarily agree” with the Horowitz’s conclusion that a sufficient basis existed to open Crossfire Hurricane as a “full” counterintelligence investigation, but that Durham did agree that there was enough information to have opened a “preliminary” investigation. (In other words, Durham’s statement was highly misleading.) As the Horowitz Report explains, a principal difference between a “full” and “preliminary” investigation lies in the approved use of law enforcement methods: electronic surveillance and/or physical search pursuant to judicial order or warrant is available for use only in “full” investigations. But as Horowitz pointedly noted in reference to Durham’s acceptance that the preliminary investigation was sufficiently predicated, “investigative steps such as confidential human source activity that occurred here are allowed under a preliminary investigation or under a full investigation.”

Barr continued to offer public commentary on Horowitz’s findings while emphasizing the continued need for Durham’s investigation. According to Barr, the possibility that the errors identified by Horowitz had been made in “bad faith” required that Durham’s review determine whether the conduct had, in fact, been prompted by “improper motive.” Barr also disagreed with Horowitz’s conclusion that Crossfire Hurricane was adequately predicated, and insisted that Durham’s inquiry was necessary to ascertain all the facts relevant to that decision.

Durham probes the actions of the IC

Soon after the release of the Horowitz Report, the New York Times reported that Durham was “examining the role of the former CIA director John O. Brennan in how the intelligence community assessed Russia’s 2016 election interference,” attributing the revelation to three unnamed sources who were “briefed on the inquiry.” Subsequent reports in The Times and other media outlets described Durham as focused on the internal deliberations within the IC that preceded the January 2017 release of the IC Assessment titled “Assessing Russian Activities and Intentions in Recent U.S. Elections” (the “ICA”), as well as interagency disputes over intelligence sharing in terms of both product and sources related to the information included in that ICA. According to these reports, Durham’s focus was directed toward three specific areas of inquiry:

(1) what Brennan had told others, including FBI Director James Comey, about the CIA’s views regarding the Steele Dossier;

(2) whether, privately, Brennan had contradicted public comments he had made regarding Russian interference in the election; and

(3) the specifics of the debate that preceded the issuance of the ICA’s specific assessments that the Russian’s had developed a preference for, and aspired to assist in, the election of Donald Trump.

Follow up media reports indicated that Durham’s probing was hardly superficial, and had extended to examining intelligence sources and analyses including alleged “clashes between analysts at different intelligence agencies over who could see each other’s highly sensitive secrets,” as well as interpretations of the data derived from certain intelligence sources.

By early April of this year, the Wall Street Journal was reporting that “people familiar with the matter” said that Durham had examined individuals working at the National Intelligence Council, a unit within the office of the Office of the Director of National Intelligence (ODNI) that coordinated the preparation of the ICA. While these interviews were described as “not adversarial,” the same sources reported that,

[i]ncreasingly, investigators are focused on former CIA Director John Brennan, examining whether he pushed for a blunter assessment about Russia’s motivations than others in the intelligence community felt was warranted.

Durham’s interviews may have not been “adversarial,” but Barr has continued to say that Durham’s job is not to “prepare a report” but “to bring to justice people who are engaged in abuses if he can show that they were criminal violations, and that’s what the focus is on.” In an April interview with Fox News, Barr went on to say:

My own view is that the evidence shows that we’re not dealing with just mistakes or sloppiness. There is something far more troubling here, and we’re going to get to the bottom of it. And if people broke the law, and we can establish that with the evidence, they will be prosecuted.

Barr followed with this tendentious assessment of the merits of the matters Durham is investigating:

I think what happened to [Trump] was one of the greatest travesties in American history. Without any basis, they started this investigation of of his campaign, and even more concerning, actually is what happened after the campaign, a whole pattern of events while he was president. So I – to sabotage the presidency, and I think that – or at least have the effect of sabotaging the presidency.

So much for the tenets of Justice Manual §1-7.400.B which provides, “DOJ generally will not confirm the existence of or otherwise comment about ongoing investigations.”

On April 24, the New York Times reported that Durham’s mandate had been broadened to include “leaks”: specifically, to investigating a number of news articles published early in 2017 that the Trump administration “blame[d] for prompting the chaos that dominated the early days of the Trump presidency.” At the top of this list is David Ignatius’s Washington Post column revealing the existence of the calls between National Security Advisor (in waiting) Michael Flynn and Russian Ambassador Sergey Kislyak in December 2016, which later proved so problematic for Flynn. Durham is reportedly also investigating the list of Obama administration officials who allegedly requested the “unmasking” of Flynn in intelligence reports. In mid-May, Barr confirmed that these Flynn-related matters are now in Durham’s “portfolio,” while announcing that, although neither Obama nor Biden are the focus of Durham’s criminal investigation, “[o]ur concern over potential criminality is focused on others.”

As the November election draws closer, the notion becomes more persistent that Durham’s efforts are now viewed by Trump supporters as a potential key element in the Trump reelection strategy. In the most recent public comments by Barr made on June 21, in an interview with Fox News, Barr said that, “Durham is pressing ahead as hard as he can,” and that he [Barr] expected “developments” in the probe “this summer.” Barr coupled this progress report with the lamentation that he was “surprised” at the lack of public interest in Durham’s work and “that people aren’t concerned about civil liberties and the integrity of our governmental process.”

III. The Danger Durham’s Inquiry Poses to Intelligence Analysis

There are those who argue that Durham’s effort is the thorough inquiry of the counterintelligence investigation aimed at Russian efforts to influence the 2016 presidential election that is needed to fully expose the nature and extent of those activities to the American public, reveal any need for reform, and furnish an informed framework for implementing necessary corrective measures. Accepting the merits of each of those goals, it is hard to discern what additional information and evaluation appropriately suited to public disclosure remains unknown after the comprehensive undertakings by Mueller and Horowitz. But, even assuming that another probe was needed to fill in a lacuna or two left by these other investigations, the events surrounding the Durham inquiry and, most specifically, Barr’s running commentary, have nullified any contribution that this effort might otherwise have made to a principled, unbiased evaluation of this unprecedented counterintelligence undertaking. Given that reality, it is disturbing that the attorney general’s relentless pursuit of a politically useful outcome from Durham poses both immediate and long-term dangers to the work of the U.S. IC.

Recall that, after Horowitz released his report in December, Durham issued a statement through the District of Connecticut U.S. Attorney’s Office saying, in part, “[O]ur investigation is not limited to developing information from within component parts of the Justice Department.” The reference was obviously both to the international cooperation that Trump and Barr enlisted to assist Durham and, of course, to the scrutiny of IC matters begun once Durham’s mandate was extended to examine the process leading to the ICA.

As noted earlier, the Justice Department has never released any document describing the parameters of Durham’s investigation, but, although not publicly aired, it is virtually certain that the often-squabbling, turf-defending members of the IC are united on the dangers presented by the extension of Durham’s criminal probe into the nuanced process that is foreign intelligence analysis. A number of identifiable concerns make this approach unnecessarily dangerous to intelligence sources and methods, and to the analytic process that turns the information gained from these sources and methods into usable foreign intelligence.

Durham, as I previously noted, has no personal experience with intelligence evaluation or analysis. Other than the relatively cursory background investigation afforded those outside the IC as a precondition to gaining access to classified information, it is almost certain that Durham’s clearance, even for access to so-called special access programs, consists of little more than the blessing of the attorney general. It is virtually inconceivable that Durham, or any member of his staff, has been polygraphed as a precondition to gaining access to, for example, sensitive compartmented information (SCI) in connection with this investigation. These concerns are compounded with respect to Durham’s anonymous staff members. Who are they, and what experience in foreign intelligence evaluation and analysis do they bring to the Durham probe? What process has been used to clear them for access to classified information and evaluate the all-important “need to know” that serves as a bedrock principle for the protection of intelligence sources and methods?

Aside from these “access” concerns, there is, notably, nothing in DOJ’s voluminous Justice Manual offering the guidance to be used in an investigation directed at applying the standards of criminal law to the process that produces foreign intelligence product — a process painstakingly devoted not to assuring certainty, but rather to reducing the uncertainty of foreign activities, capabilities, or leaders’ intentions. The difficulty in pursuing this objective is compounded by seeking to understand these complex issues in an environment where foreign actors go to extraordinary lengths to hide or obfuscate their activities.

Tradecraft standards for analytic foreign intelligence product have been refined over the years to ensure that the IC provides U.S. policymakers, service members, and operators with the best and most accurate insight, warning, and context. Pursuit of this goal requires clearly expressing uncertainty, distinguishing between underlying information and analytic judgments and assumptions, exploring alternatives, and explaining change or consistency in judgments over time. Each step in this process employs some level of informed analytic discretion tempered by instinct and experience. Often, these discretionary assessments are defined by phrases, such as “NSA doesn’t agree,” “there’s no real consensus,” “the intelligence is muddled and unclear,” “the agencies are all over the map,” and/or “there are intelligence gaps that need to be filled before we can trust the conclusions.” These all represent characterizations of aspects of intelligence analysis that are not unusual, could be technically true, reflect the mosaic-like composite that often characterizes intelligence analysis, but also should render intelligence analysis almost immune to criminal prosecution absent direct evidence of knowing falsity or manipulation. It is an unfortunate irony, however, that this same analytic phraseology if used in reporting the results of a criminal inquiry, for example, lends itself to opportunistic manipulation by partisans devoted to using that phraseology to support a particular narrative of the events in question.

Picture, for example, a prosecutor telling a jury that he has “moderate” confidence in the defendant’s guilt, or that a particular piece of evidence might be probative of this fact or, alternatively, of a different fact, or, perhaps, constitute no proof at all because it represents the defendant’s attempt at disinformation and deception. This is the world in which intelligence analysts work, but it is an environment foreign to a prosecutor trained in terms of “clear and convincing” evidence and guilt “beyond a reasonable doubt.”

Almost invariably in a trade that constantly wrestles with understanding the uncertain intentions of actors seeking to harm or undermine the national security of the United States, retrospective review of an analytic or investigative effort will identify actions that might have been done better, more completely, or differently when viewed with the benefit of hindsight. But, much like a morbidity and mortality conference in medicine, the value of such retrospective review lies in the internal improvements that such a candid and confidential reassessment bring to the process examined — whether that be medical care or foreign intelligence analysis.

Thus, unless the Durham investigation reveals a demonstrably knowing violation of U.S. criminal law, publicly airing such a retrospective view of the intelligence analytic process that produced the conclusions reflected in the ICA regarding Russian activities and intentions in connection with the 2016 presidential election poses an unnecessary and unproductive danger to ongoing U.S. intelligence efforts, risks exposure of sensitive intelligence sources and methods, and creates a chilling effect on the future work of intelligence analysts who will surely think twice before expressing the impartial “truth to power” that must be the touchstone of unbiased intelligence analysis. Moreover, as his handling of the Mueller Report shows, these dangers are exacerbated by the ability and willingness of the attorney general to redact and declassify selectively in a way that manages the information publicly available to ensure public perception is receptive to his view of events.

These dangers seem particularly gratuitous considering that the Republican-controlled Senate Intelligence Committee performed its own independent and exhaustive review of the ICA and, as expressed in Volume IV of its report titled “Review of the Intelligence Community Assessment and Additional Views,” expressed, inter alia, these “Findings”: (1) “The Committee found the ICA presents a coherent and well-constructed intelligence basis for the case of unprecedented Russian interference in the 2016 U.S. presidential election;” (2) “The ICA reflects proper analytic tradecraft despite being tasked and completed within a compressed timeframe;” (3) “The differing confidence levels on one analytic judgment are justified and properly represented;” and (4) “In all the interviews of those who drafted and prepared the ICA, the Committee heard consistently that analysts were under no politically motivated pressure to reach specific conclusions. All analysts expressed that they were free to debate, object to content, and assess confidence levels, as is normal and proper for the analytic process.

The ICA, along with the extensive investigative efforts taken by Mueller and Horowitz, seem unlikely to have left any material stone unturned regarding the details of Crossfire Hurricane and Russian interference in the 2016 presidential election. If there are any pebbles left for Durham to unearth, they seem highly unlikely to suffice as evidence of criminal wrongdoing or of improper political motivation. This will not deter Durham from completing his tasking, which increasingly seems intended principally for political use by the Trump administration. The president has never relented in decrying Crossfire Hurricane and the Mueller Investigation as “witch hunts,” employed to perpetrate the “hoax” that the Russians sought to sway the election in his direction. From the moment Barr assumed office, he has repeatedly amplified this theme with his personal view that improprieties have been directed at the Trump campaign and administration – commentaries that consistently violate the Justice Department’s own regulations prohibiting public comment acknowledging the existence of, or any details regarding, an ongoing investigation.

No suggestion is intended here that the IC is immune to investigation. Intelligence activities are subject to multiple reporting and congressional oversight requirements (there are over a half-dozen such requirements in the Foreign Intelligence Surveillance Act alone), and intelligence activities are regularly scrutinized by the Intelligence and Judiciary Committees in both houses of Congress. Theoretically, executive branch oversight is also provided through the network of inspectors general populating the agencies comprising the IC; although, admittedly, the treatment of IGs by this administration is a challenge to that notion of effective and independent oversight.

Candidly, the extensive vetting, to date, of Crossfire Hurricane and of the ICA by this oversight apparatus has answered the material questions surrounding what happened with respect to those undertakings, so that Durham’s additional inquiry seems useful only to those unwilling to accept the facts that have been unearthed. Unfortunately, some of those dissatisfied are at the highest levels of the U.S. government and, their determination to pursue a factual recounting that undermines the completed work of Mueller, Horowitz and, for that matter, the Senate Intelligence Committee, they appear willing to sacrifice, as collateral damage, the integrity and credibility of the U.S. IC and the analytic processes used to produce foreign intelligence.

Addendum: As this article was in the final stages of publication, the New York Times broke a story that serves as a perfect object lesson of the dangers posed by Durham’s probing of the IC and Barr’s political use of his declassification authority. The Times reported that Barr had directed the FBI to declassify a redacted version of an interview conducted in 2017 of a cooperating confidential source regarding the vetting of the Steele Dossier. The source, an expert on Russian politics, cooperated subject to the important condition that his identity not be revealed so as to protect himself, his sources, and his family and friends in Russia. Despite having received those assurances of anonymity from the FBI, Barr ordered the redacted version of the interview declassified and sent to Senate Judiciary Committee chairman Lindsey Graham, who promptly released it publicly as support for his contention that “the entire Russia investigation was ‘corrupt.’”  Within days, the internet had sufficiently parsed the details found in the newly declassified transcript to identify, and publish, the name of the “anonymous” source. Someone who was likely one of his sources was also publicly identified.

One can well imagine how other intelligence sources providing critical foreign intelligence information to the IC will react to this episode. These events demonstrate that the essential confidentiality necessary to protect themselves, their families, and their associates will be readily sacrificed to promote the politically-driven narrative of the Russia investigation that Barr has chartered Durham to produce. It is this exact willingness to pursue political objectives at the long-term expense of the nation’s foreign intelligence collection and analytic processes that reveals the significant dangers that the Durham investigation, and its architect, William Barr, pose to the U.S. Intelligence Community.

Image: President Donald Trump makes a statement on the census with Attorney General William Barr in the Rose Garden of the White House on July 11, 2019 in Washington, DC. Photo by Alex Wong/Getty Images

 

About the Author(s)

George Croner

Former principal litigation counsel at the National Security Agency. He is a Senior Fellow at the Foreign Policy Research Institute, and a member of the Advisory Council at the Center for Ethics and the Rule of Law (CERL) at the University of Pennsylvania Law School. Follow him on Twitter @GeorgeCroner.