The Times reported that “the main thrust of the Durham investigation was marked by some of the same flaws — including a tense justification for opening it and its role in fueling partisan conspiracy theories that would never be brought to justice — that Trump allies allegation characterized the Russia investigation.” Durham filed two baseless suits, both of which resulted in an acquittal. When Justice Department Inspector General Michael Horowitz’s thorough investigation debunked their entire theory, Barr tried to pressure him to keep it a secret. Then, as he did with the Robert S. Mueller III report, Barr publicly mischaracterized and destroyed the report.
Durham also used a grand jury to snoop into the record of top Democratic donor George Soros. In addition, while supposedly operating independently, he regularly met with his friend Barr, in violation of the basic precept that a special counsel must operate with a high degree of independence. (From the Times article: “Mr. Durham visited Mr. Barr in his office for sometimes weekly updates and consultations about his day-to-day work. They also sometimes ate and drank whiskey together.”)
Mr. Barr and Mr. Durham never disclosed that in the fall of 2019, based on a tip from Italian officials, their investigation was expanded to include a criminal investigation into suspicious financial transactions related to Mr. Trump. The details of the tip and how they handled the investigation remain unclear, but Mr Durham has not pressed charges against it.
Their behavior was so egregious that several prosecutors quit rather than join (to use a phrase) the witch hunt. In the end, Barr admitted there wasn’t one — but not until after the 2020 election.
Former prosecutors reacted with outrage to the Times report. Andreas Weismann tweeted“This is all about the DOJ’s Trump arming — but we know the House Rs don’t care.” Joyce White Vance agreed:
Stunning reporting. Much here including an explanation of why Durham’s colleague resigned: Under pressure from Barr to release an “interim” report harming Clinton and the FBI as the election approached, Durham had a draft drawn up that wasn’t actually used to be. https://t.co/akayPzdL2I
— Joyce Alene (@JoyceWhiteVance) January 26, 2023
Three responses are warranted, though unfortunately Barr cannot be held accountable by any.
First and foremost, Attorney General Merrick Garland must have the backbone to remove Durham for gross misconduct. In addition, any report released would have to remove the names of those who were acquitted by the court or who were never charged. They are victims of a political slander, which Garland should not allow by publicly circulating unfounded accusations. Don’t hold your breath, though. Garland has shown little willingness to review the department’s behavior in the previous administration. (Alternatively, the Inspector General could investigate Barr and Durham.)
Frankly, Garland was mistaken by never conducting a top-to-bottom review of politicization during the Trump era (including Barr’s politicization of sentencing recommendations and the department’s misrepresentations in the US Census case). Rather than prioritizing the department’s external reputation over the need to remove the stench of corruption, Garland should have figured out the Barr/Durham debacle long ago. (It would have at least prevented the fake MAGA story from doing that Democrats are those who have engaged in misconduct).
Greg Sargent: Terrifying new details about the Durham probe require a serious answer
Second, Barr and Durham should face disciplinary action, just as coup d’état architect John Eastman (coincidentally on Thursday) was charged with 11 counts by the California state bar for “violating various lawyer ethics rules in multiple episodes, lawsuits, and other conduct.” as CNN put it. Unless and until attorneys like Barr and Durham are held accountable, the threat of professional disgrace and the loss of their law license, other attorneys will be tempted to engage in such shenanigans.
However, Eastman, Jeffrey Clark (against a bar suit), and Rudy Giuliani (suspended from practice in New York) are sadly the exception to the rule of laziness and passivity of state bars. Dozens of attorneys who filed frivolous lawsuits after the 2020 and 2022 elections (including challenging the defeat of Arizona’s Kari Lake) have yet to face punishment.
The list of lawyers who took part in the effort to overturn the 2020 election but have so far faced no consequences (Kenneth Chesebro, Cleta Mitchell) is far too long. (And none of the members of Congress who joined the Supreme Court’s utterly baseless order to disenfranchise millions of Americans have been held accountable.) State bars must do their job to restore the integrity of the legal profession.
Finally, Congress should investigate Barr and Durham’s gross misconduct. Rest assured, however, that MAGA Republicans on the House Judiciary Committee and the Arming the Government subcommittee won’t be interested.
However, two options remain. Senate Democrats can take the case, hold public hearings and demand answers from Garland as to why he hasn’t cleaned the house yet. In addition, Democrats on the subcommittee on armaments should insist at every hearing to investigate this matter and, when Republican witnesses are called, demand that they respond to the facts pertaining to Barr and Durham. At the very least, they can take turns reading the Times report aloud during public hearings.
In short, just as Garland wants to hold accountable political leaders who threaten our democracy, he must hold his own department’s lawyers accountable for misconduct. If not, an inspector general, state barristers and congressional Democrats should do the job.