On the Special Counsel's Weird Prosecution of Michael Sussmann (September 20, 2021)
...Attorney General William Barr appointed John Durham, lo these increasingly-many years ago, to investigate a supposed scandal inside the FBI: There had been an attempted coup, President Trump alleged, and Barr himself hinted that there had been an effort spuriously to investigate a candidate for president. The FBI counterintelligence investigation of figures surrounding Donald Trump, the attorney general warned darkly, may have begun earlier than the FBI said it did. It may not have been properly predicated. There may have been other agencies involved. [emphasis mine]
Durham himself at times lent his solid reputation as a career prosecutor to such fantasies. When the Justice Department's inspector general found that the investigation of L'Affaire Russe had been properly predicated and had, in fact, begun when the FBI always said it had, Durham publicly questioned the judgment. He also has taken a mind-bogglingly long time to complete his as-yet almost-wholly unproductive investigation, which has gone on longer than the Mueller investigation itself, building up expectations among many Trump supporters that Durham was going to deliver the goods.
And until this week, Durham's investigation had added exactly zero new facts to the public's understanding of the FBI's handling of the Russia matters. The only case he had brought"against a low-level FBI lawyer for altering a document in connection with a surveillance application"was entirely derivative of facts developed by the inspector general. Durham had, beyond that one case, issued no findings or reports and had charged nobody with anything. He had merely existed and, by existing, allowed expectations and conspiracy theories to swirl around him.
But now Durham has spoken on his own. He has indicted a cybersecurity lawyer named Michael Sussmann for allegedly making a single false statement in a conversation in 2016 with then-FBI General Counsel Jim Baker. The allegedly false statement concerned not Trump or Russia, but whom Sussmann represented when he brought Baker some information about an alleged electronic connection between the Trump Organization and a Russian bank. (Disclosure: Baker is a personal friend and former colleague at Brookings and Lawfare.)
The indictment is, in other words, far removed from the grave FBI misconduct Durham was supposed to reveal. Very far removed. In fact, it doesn't describe FBI malfeasance against Trump at all, but portrays the FBI as the victim of agitprop brought to it by outside political operatives. It describes the FBI as diligently running down the leads it had been fed by these operatives and then, well, dropping the matter when it learned they had no merit. The misconduct it portrays is an alleged lie by Sussmann that is, at best, wholly peripheral to the substance of the allegations Durham was supposedly peddling.
Even taken on its own terms, the document is one of the very weakest federal criminal indictments I have ever seen in more than 25 years covering federal investigations and prosecutions. ...