Sunday, September 13, 2020

More On The Complexities Facing Durham

The resignation of a key aide to John Durham--Nora Dannehy--has led to natural speculation concerning her reasons for resigning (she also resigned from DoJ), as well as concerning what role Dannehy actually played on Team Durham. Shipwreckedcrew has surmised that Dannehy actually functioned in a non-prosecutorial support role, but a role that is absolutely critical when DoJ in effect "inherits" a case that has already been handled by OIG. We summarized SWC's theory at the link, above.

SWC has also dug up an article by Sara Carter that's nearly a year and a half old, but remains a fine piece of reporting. We'll get to that in just a bit.

By now we all understand how complex the Barr/Durham investigation is. The investigation of the investigators started out as an investigation by OIG of FISA abuse by the FBI. That OIG investigation appears to have been triggered by concerns about fraud involving the Carter Page FISA, but the investigation into the sources behind the Page FISA quickly revealed problems with the entire predication for the Crossfire Hurricane investigation--no surprise, since the predication for both was related. At the same time, FBI and CIA abuse of the 702 search function with regard to NSA's databases also came to light--again suggesting ties to the Russia Hoax. While details are murky, it appears that John Durham may actually have been called on to examine some of these issues beginning as early as the late summer of 2018--before Bill Barr was even nominated to replace Jeff Sessions as AG.

The only reason that Durham would have been called upon to undertake any sort of internal review of such issues would have been because of concerns regarding possible illegalities or even criminal behavior by DoJ and FBI officials. In that context, and around the same time, Barr wrote his now famous 19 page memo to Rod Rosenstein in which Barr challenged the legal theory of obstruction that Barr believed Robert Mueller's Special Counsel investigation was pursuing. Barr's challenge to Mueller's "obstruction" theory--actually, a classic Andrew Weissmann theory--while not directly challenging the predication of the Russia Hoax, certainly challenged the predication for an obstruction investigation of President Trump.

Add to the above the fact of numerous "leak" investigations, which were to continue and even intensify in the runup to the Fake Impeachment.

What stands out in all of this is that there is a continuity that includes at least a core cast of players. For example, while some of the early key players at the FBI were lost to attrition (resignation, firing), others remained in place at least into 2018. Even more interesting, and a fact noted by IG Horowitz when his FISA report finally came out, was the remarkable involvement of key Team Mueller players--including Andrew Weissmann--in the Crossfire Hurricane investigation even before the 2016 election. This despite the total lack of any need to know on the part of Weissmann or any of the others. All of these players had involvement with the predication for Crossfire Hurricane, with the Carter Page FISA, with the predication for Team Mueller, and most probably with the multiple leaks.

Once Barr took over as AG, on February 14, 2019, Durham's "review" quickly turned into a criminal investigation, building off Horowitz's interim report. Barr himself made no secret of his view that the entire Russia Hoax was, in fact, a hoax--a criminal investigation that lacked any predication and therefore legal basis. A misuse of government authority with possible criminal intent. As I had maintained all along, the lack of predication for Crossfire Hurricane meant, ipso facto, that the Mueller witchhunt also lacked predication. Therefore it could only be a matter of time before Barr/Durham drew Team Mueller within their crosshairs. Virtually every day has made it more and more clear that that is, in fact, a major focus of Durham's investigation. The point of entry for that investigation has been twofold: Once again the Carter Page FISA and its renewals, that continued under Team Mueller, and Team Mueller's attempts to frame Michael Flynn--which continue even now with the complicity of the federal courts under the DC Circuit Court of Appeals.

No one who has read Horowitz's report can doubt that it contains much material that would be extremely helpful to any subsequent criminal investigation--such as Durham's. The problem, as we explained, lies in the possibility that Horowitz's investigators may have compelled testimony from some of the persons they interviewed--that is, used the threat of disciplinary action to compel cooperation. That's legitimate for internal disciplinary investigations, but in the context of a criminal investigation raises Fifth Amendment issues.

Of particular concern for Durham would be the fact that Horowitz interviewed so many of the key players, including several persons who are believed to be key cooperators with Durham's investigation: James Baker, Bruce Ohr, Kevin Clinesmith, Joe Pientka. If their testimony was acquired in a way that could be construed as compelled, then even though their testimony could be used in internal DoJ disciplinary proceedings, any use that Durham made of that testimony in a prosecution could be excluded as a violation of the right against self incrimination.

One way or another, this was a key problem that Durham had to tackle from the very start of his investigation. To "filter" the massive amount of information contained in Horowitz's interviews and to guide Durham's own investigators as they began their work could not be a one man job--an entire team would be needed. Whether or not it was Dannehy who took that job on, we can be sure that this "filter" function has been a key part of the Durham investigation. For example, these concerns could conceivably have even entailed "reinventing" the investigative wheel in certain instances: if certain information had been obtained via testimony that had, arguably, been compelled by OIG, then that information could have been withheld from Durham's investigators, who might then have been required to discover that information on their own.

Obviously, this should explain why Durham's work has "taken so long." By contrast, Team Mueller had no such concerns.

Fortunately, Michael Horowitz is highly experienced both as a prosecutor and as head of OIG. He understands these issues thoroughly. The hope--and my expectation--is that he proceeded with the knowledge that criminal prosecution could become an issue at some future time, and was therefore cautious about pressuring witnesses.

With this context in mind, we turn to Sara Carter's article, and it's very title suggests all of the above considerations. While many no doubt assumed that Durham would take over Horowitz's files and simply build on his work, it was never going to be that easy: Minefield? If Barr Has Any Intention Of Prosecuting FISA Abuses, He Should Stay Clear Of IG Report. Carter wrote this article just three months after Barr was sworn in--so, pretty much at the beginning of the Durham investigation. She turned to former officials who had a lot of experience in these types of investigations and who understood the pitfalls.

Notice that the assumption in the excerpts that follow is that Barr would be looking to prosecute "FISA abuses." The reality, of course, is that Durham has moved far beyond a narrow focus on FISA--just as we know that IG Horowitz's FISA investigation ended up ranging far and wide over the field of the Russia Hoax. FISA abuse has become, as I termed it, a point of entry for an investigation that is targeting the full scope of the big picture conspiracy against Trump. This is possible because so many aspects of the big picture conspiracy share a cast of players in common with the players who got the FISA ball rolling. The danger in this, however, is that, by the same token, IG Horowitz will have interviewed most of those players already. Durham needed to tread very carefully. Even painstakingly.

Here, then, are some key excerpts from Carter's fine article, which takes on new relevance over a year later. Notably, Carter presents two contrasting viewpoints.

First Carter presents the views of a former FBI agent, who sounds an alarming--perhaps alarmist--call for extreme circumspection:

As Department of Justice Inspector General Michael Horowitz is preparing his report on the FBI’s handling of its investigation into President Donald Trump’s campaign, he’s likely to reveal information derived from compelled statements of bureau and DOJ employees. 
According to several former FBI officials and legal experts, it could be a potential minefield for Attorney General William Barr if he reviews the report and intends to use compelled information in any criminal prosecution against senior officials for allegedly violating the law with regard to Foreign Intelligence Surveillance Act warrant, or other matters. 
Horowitz’s report will most likely contain extensive information derived from compelled statements of FBI and DOJ employees, and that’s a minefield for Barr to navigate in a subsequent criminal prosecution, former and current FBI officials told
Retired FBI Supervisory Special Agent Jeff Danik said “during nearly thirty years at the FBI investigating law enforcement abuses, by far my biggest concern was that evidence originating from an officer’s compelled internal affairs statement would inadvertently seep into my criminal investigation.”
“It’s usually fatal,” added Danik. 
“[Barr] should immediately stop making public comments about his discussions and coordination with the IG; he should establish a taint team in a government office far away from Main Justice and demand that his criminal investigative team sever all contact with any IG employee or any member of the taint team; the taint team should review exactly who was interviewed by the IG, which witnesses provided compelled statements (probably the vast majority), and make sure to take serious steps to preserve the possibility of prosecuting FBI and DOJ officials if they committed wrongdoing,” said one former FBI official, who spoke on condition that they not be named. “After what the president and the country have been through, it would be a travesty for the guilty to get away with it because of governmental blundering.” 
“The IG routinely compels DOJ employees to give sworn statements to IG investigators, ” said Danik. “Very often, the penalty for an employee refusing to speak to the IG will result in the termination of their DOJ employment.”

Danik knows what he's talking about. However ...

I would caution, as above, that Horowitz was well aware that this was anything but a routine investigation. He would have understood that later prosecution might well be in the cards and, for that reason, I doubt that Horowitz would have used compulsion on a "routine" basis. Further, while guilty persons might refuse to cooperate unless compelled to do so, many others might have been willing to cooperate voluntarily. Even, in some cases, eager to cooperate. On the other hand, that would not necessarily have made the job of "filtering" easy, since each person and their interview(s) would need to be evaluated on a case by case basis. There was far too much at stake to make a mistake here.

Who Is Horowitz Interviewing? 
Horowitz is more than likely interviewing some of the same players he had interviewed during his previous investigations into the FBI’s handling of Hillary Clinton’s use of a private server to send classified government emails, as well as other Russia matters. 
It’s probably a good bet that former FBI Special Agent Peter Strzok, former FBI Attorney Lisa Page and former FBI General Counsel James Baker have been interviewed by the inspector general. Further, former FBI Deputy Director Andrew McCabe and former Director of the FBI James Baker [Comey?], along with many of the former senior staff, have been interviewed. 
But there are still important witnesses within the bureau and DOJ, which have not been fired or resigned. One of them is, FBI Special Agent Joe Pientka, who was with Strzok at the White House when the pair interviewed former Lt. Gen. Michael Flynn in January, 2017. There’s also Department of Justice official Bruce Ohr, who is still with the department and whose wife was working for the embattled research firm Fusion GPS. Fusion GPS was the company that hired former British spy Christopher Steele to investigate the Trump campaign and Russia. Remember, it was the Democratic National Committee and the Clinton Campaign that paid Fusion GPS to hire Steele. 
More than likely, both former and current FBI and DOJ officials have been and will be interviewed by Horowitz.

On the other hand, a criminal defense attorney suggested to Carter, as I have argued above, that Horowitz probably proceeded cautiously.

Civil rights and criminal defense attorney David Schoen told the concern among law enforcement officials is understandable with regard to what is known as “taint.” 
“There’s no reason to assume the Inspector General is compelling them to give statements,” said Schoen. “I think some of the people Horowitz has been interviewing are former agents and that makes a difference.” 
Taint occurs, for example, when witnesses are “put in a position where they take the fifth and their job is put in jeopardy if they don’t answer questions. It could potentially taint the use of their testimony. 
Schoen said, “Horowitz is a smart guy, he’s been doing this for a long time and he’s been a prosecutor in cases involving official misconduct before. He was a prosecutor in the Southern District of New York with corrupt DEA agents. Horowitz clearly understands these complications — he’s experienced with investigating corrupt agents.”

Toward the end we find this nice contrast of the two points of view:

Danik said nothing should be taken for granted, “especially in a case this sensitive.” He stressed the alleged level of criminality, among senior law enforcement and DOJ officials, makes it imperative that no lines are crossed in an effort to protect possible criminal prosecution. 
Schoen noted that Barr is well versed in the law and so is Horowitz. Both may be navigating the minefield without any issues. 
“It’s best to get everything out there,” said Schoen. “Horowitz certainly knows what he’s doing and so does Barr but this is a legitimate concern, especially among law enforcement officials who’ve seen cases go sideways for just this reason.”

This is a great perspective for anyone who wonders what's taking so long. Even though Horowitz, Barr, and Durham are experienced and understand the legal issues involved here, they still need to proceed cautiously. As Danik cautioned, nothing should be taken for granted, and I doubt that any of those three need to be reminded. This is the biggest case of their lives and in the history of the nation.


  1. Curious about someone like Weissman. We know he was highly unethical with his work on the Arthur Anderson case and other cases. Were his actions illegal, and if so, why was he never indicted?

    Likewise, are his actions in this Mueller case illegal and open to being indicted?

    1. Yes, it's believed AW was actually sanctioned, but the file is under seal in a NY court.

    2. What does "sanctioned" mean? Did he have to pay a fine, did he get a mark on his record, a stern talking to?

      In any case, didn't seem to have any effect.

    3. It's under seal.

      My belief is that his two stints at the FBI were part of living that down. The liberal legal establishment takes care of its own.

  2. MW wrote:

    "For example, these concerns could conceivably have even entailed "reinventing" the investigative wheel in certain instances: if certain information had been obtained via testimony that had, arguably, been compelled by OIG, then that information could have been withheld from Durham's investigators, who might then have been required to discover that information on their own."

    Could this also be an explanation for splitting out various tentacles of the investigation to entirely fresh US Attorneys, like Bash, Jensen, etc., who have not seen the detailed Horowitz testimony records, so that they are not infected by "fruit of the poison tree"?

    It's not necessarily the only reason, but it is a sufficient reason.

    1. Probably not. My theory has always been that, as you say, these "tentacles" have been split out. How I understand that is that when Durham's investigators looked at those aspects and gathered enough evidence to believe they had a legit criminal investigation on their hands that was sufficiently large, a decision would be made to split it off. But I assume that the original investigators of that aspect would ALSO be split off--would end up on Bash's team, or Jensen's team. Perhaps with more investigators, but you'd want the continuity.

      My understanding of the setup is that nobody but the "taint" or "filter" team would initially see the testimony. There would be a period of intensive activity to determine how it was gathered. Later, there would be ongoing consultation.

  3. Typo alert?:
    "the legal theory of obstruction that Barr believeD Robert Mueller's Special Counsel investigation was pursuing."

    On Horowitz, his failure to stop the cell phones from being erased casts doubt on which side he's really on, *unless* he knew that these phones' data could anyway be retrieved.

    1. Typo: Tx

      Horowitz: You're not serious?

    2. Horowitz certainly comes across as the thorough professional. But for me the conclusions on predication and bias were so obviously wrong that I could not reconcile the conflicts with his overall work. Trying to somehow balance the report? The phones also suggest a failure that a professional of his caliber does not make(assuming he did not act aggressively to resolve). I am ambivalent. Thx.

    3. I agree that he seemed to be trying to "balance" his conclusions. However, re the phones, it's not his job to keep track of all phones at DoJ.

    4. Agree on keeping track, but after seeing Clinton fiasco on devices and Page/Strozk data disappear he should have moved to preserve evidence. Advise keepers of the phones and SCO team of the need to
      preserve. Sidney Powell In an interview alleges she asked him in 2018
      to take steps to preserve.evidence from phones. More balance? Tough for me to draw a firm conclusion on his work and perhaps just the way he wants it.

    5. Did OIG, then, have an investigation opened on SCO? I think not. Based on demands of someone who at the time wasn't even representing Flynn? She was right, but as Barr has said, he wants to restore rule of law. You have to follow the rules. Horowitz doesn't run DoJ and had no standing to make any such demands. Things aren't that simple. SCO was still working for the AG and DAG.

    6. You are correct re Horowitz and Powell and the timing of their involvement. I should have referred to DOJ writ large. I assume preserving evidence would fall under their purview for their investigation.
      Barr’s goal is clearly the right one, but the nature and tactics of the opposition may require the proverbial flogging in the public square to make an impression.

    7. Here's the thing. To have taken that action--and I wish it had been taken, if it had been possible within the DoJ of that time--would have required challenging the basis for the investigation as a whole. Simply pointing toward abuses re Flynn wouldn't have been sufficient for opening an investigation on the SCO as an entity. That would have required Rosenstein admitting that his opening of the SCO on the basis of CH and the ICA was a hoax. He wasn't gonna do that. OTOH, Barr was preparing for that move--probably before confirmed. This is all part of why Sessions as AG and his recusal was such a tragedy.

      OIG was always going to be more of a stopgap measure. Horowitz did some good work, but OIG's authority is far too limited to take in the full scope of the Russia Hoax. So focusing on OIG is the wrong focus. The focus needs to be on those responsible for CH and then Mueller. Especially Mueller, because he happened after the election. After the election we have the real betrayal.

  4. do you suppose that this could be a reason for Horowitz' milquetoast conclusions, ie that he intentionally limited aspects of his inquiry due to expectation of future prosecutions.

    I consider his 'no documentary evidence of bias' conclusion to be a poor joke, and I'm not sure how this could mitigate it, but looking for a silver lining...

    1. In this case I would say 'No'. Recall that when Horowitz came out with that, both Barr and Durham took sharp issue with that conclusion as well as what Horowitz had to say about predication:

      To be honest, I'm not sure what to make of that aspect of Horowitz's report. After all, people continue to come up with relevant nuggets based on the report, so you know that he did a good job.

  5. What happens with statute of limitations in these cases?

    Typical for fed charges is five years?

    1. Good point. While there are exceptions, none of the charges I can envision would have exceptions. We are starting to run up against that. If there are any charges stemming from the early activity overseas, we'll be coming up on 6 mos. to go, soon. Those would all be cases handled by Durham, I believe.

  6. With regards to the 1st half of the blog, it's pretty well documented that members of the SOC had early access to CH via Bruce Ohr and others. Weissmann is a close confident of Ohr's. Also, I believe the Treasury Dept was involved at that time and has been documented albeit not as much. Good update Mark.

  7. Horowitz my guess was being thorough documenting everything per his professional responsibility, but watered down the conclusion due to politics. He needed to do this if he ever wanted to work for non Republican in the future, and escape becoming a target for vitriol by the left / democrats. Looks like he succeeded in protecting his reputation with non Republicans.

  8. Yes, but, is it really Horowitz's job to go that far? Having been someone who is in something like Horowitz's position (but in another situation) one could argue that it's the role of the AG or DAG to take command of this, as Barr seems to be doing.