On Friday, the Hartford Courant reported that Assistant United States Attorney Nora Dannehy had resigned in protest from the Department of Justice’s inquiry into the origins of the Russia probe. An experienced, by-the-book prosecutor, her presence on the team was a salve to institutionalists who worried that Attorney General William Barr was conducting a sham investigation designed to bolster Donald Trump’s presidency. Her involvement gave the endeavor a veneer of legitimacy. That is now gone.
Having served as a federal prosecutor and head of the Public Corruption Task Force in Connecticut, I am especially concerned about these recent developments.
Barr’s announcement that he had started an examination into the origins of the Russia inquiry was suspect from the start. Barr had come to his position deeply skeptical of the investigation overseen by former FBI Director Robert Mueller. His decision to formally review the origins of the Russia probe was unusual; the DOJ has an internal investigator, the inspector general, who was already examining whether any misconduct led to the start of the Mueller probe into the Trump campaign. Barr’s decision to order an additional inquiry was duplicative – and concerning.
However, Barr’s choice to appoint John Durham to spearhead the investigation signaled legitimacy. Whereas many U.S. Attorneys are political partisans who come to their presidential appointments from jobs in the private sector, Durham was elevated to his position directly from the civil service ranks. He is a 30-year DOJ veteran and has served faithfully under Republican and Democratic presidents alike. When the U.S. Attorney had to recuse himself from the investigation into Connecticut’s Republican governor, John Rowland, Durham replaced him and authorized the then-governor’s indictment. He carried out special inquiries on behalf of Democratic attorneys general like Janet Reno and Eric Holder. Durham is so circumspect about his politics, that the screening team that eventually recommended him for his position had to ask if he was, in fact, a Republican.
Durham lived up to his non-partisan reputation by selecting Dannehy to join his team. Dannehy is also a longtime civil servant and non-partisan prosecutor. She was not only the lead attorney in the Rowland case, she also prosecuted Connecticut’s Republican state treasurer, Paul Silvester. In 2008, she was made acting U.S. Attorney by Republican Attorney General Michael Mukasey. She eventually left the U.S. Attorney’s Office to become the top deputy for Connecticut’s Democratic attorney general, George Jepsen. She is one of Durham’s longtime friends and colleagues and she shares his straight-talking, truth-telling reputation. Their fealty to the truth was the investigation’s saving grace.
But even before Dannehy resigned, cracks in the investigation began to show. In December 2019, DOJ Inspector General Michael Horowitz released his report into the origins of the Russia investigation. While he found some errors in the probe, the report discredited any allegations that it was an anti-Trump plot. Horowitz concluded that there were sufficient facts to justify the investigation and found there was no evidence of political bias in the decision to initiate it. Barr immediately disagreed publicly with Horowitz’s conclusions. More surprisingly, Durham also took public issue with them. It was a move that surprised many people who knew him.
As laid out in its own Justice Manual, the “DOJ generally will not confirm the existence of or otherwise comment about ongoing investigations.” Indeed, the manual states that “DOJ personnel shall not respond to questions about the existence of an ongoing investigation or comment on its nature or progress before charges are publicly filed.” The only enumerated exceptions to prohibition are to reassure the community that the “appropriate law enforcement agency is investigating a matter” or “where release of information is necessary to protect the public safety.” But not only did the DOJ comment on the Durham investigation, it put Durham’s statement disagreeing with Horowitz up on its website. It’s still there.
The statement became even more puzzling when the cause of the disagreement was made public. According to Horowitz’s testimony before Congress, Durham told him that he disagreed with the assessment that the FBI had sufficient predication to open a full investigation at the outset. Instead, Horowitz said Durham took the position that the FBI should have opened only a preliminary investigation. But the differences between a preliminary and full investigation are so small (as Horowitz himself noted), that the distinction never warranted the noise the DOJ made. Indeed, had the investigation been opened as a preliminary investigation, the FBI still would have been permitted to use all the same tactics they employed at that point.
In the months leading up to Dannehy’s resignation, Barr started making public statements strongly hinting that he might release a report on Durham’s investigation before the 2020 election. The DOJ has longstanding norms against taking actions that may affect the outcome of an election. But Barr has erroneously reframed those norms and stated that Durham’s activity falls outside of them. Dannehy’s reported concern that there was pressure from Barr to release a report before the election makes the attorney general’s actions appear to be what skeptics always feared they were – naked partisan ploys.
But the attorney general’s partisan machinations are not the only take away from Dannehy’s resignation. As former federal prosecutor Daniel Goodman first noted, DOJ prosecutors rarely resign in protest. Not only has Dannehy resigned, but all four of the prosecutors resigned from the case of Trump associate, Roger Stone, after Barr intervened; one, like Dannehy, resigned completely from the DOJ (which freed him up to write an op-ed about the episode). The lead prosecutor in the case against Trump’s first national security advisor, Michael Flynn, also withdrew after Barr’s intervention. Moreover, the fact that Dannehy’s colleagues are discussing her motivations with the press is indicative of the unrest in the Justice Department. Line federal prosecutors do not speak to reporters without authorization. It is against DOJ policy and their culture. Each individual action is surprising; taken together, they are wholly unprecedented.
So far, none of this has stopped Barr. He has thwarted the Stone and Flynn prosecutions and he appears determined to undermine the entire probe into the Trump campaign before the November election. This move could clearly affect the election, which would violate longstanding DOJ norms. If Barr’s intention is to deliberately affect the election, it would also violate federal criminal law. But Congress – like the DOJ – also has the power to issue subpoenas. And with the Dannehy revelations, it has both a cause and an avenue to investigate Barr himself.