Special Prosecutor Durham’s Digging Into 2016 Vote Looks Like a Dead End for the GOP

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The former governor of New Jersey, Chris Christie, warned Republicans gathered in Las Vegas over the weekend to quit obsessing over the 2020 election and start looking ahead to the next one.

“We can no longer talk about the past and the past elections,” Mr. Christie said, urging a Republican Jewish Coalition audience to “take our eyes off the rearview mirror and start looking through the windshield again.”

Note the use of the plural “elections.” The comments were widely seen as a caution to President Trump, who has been pushing the far-fetched claim that the 2020 election was stolen from him. Listen to Mr. Christie carefully, though, and it sounds like he was making a point about 2016 as well as 2020.

If so, it’s sage advice, in my opinion, particularly as an effort is underway to re-litigate not only the 2020 election but the 2016 one, too. The 2016-related effort is centered in the Justice Department, where on November 4, 2021 — about 5 years after the election — Special Counsel John Durham announced that a grand jury had indicted a Russian national on five counts of making false statements to the FBI.

“Defendant Allegedly Lied About the Source of Information Provided to the FBI During the 2016 Presidential Campaign,” is how the subheadline of the press release puts it.

The law Igor Danchenko was charged with violating — Title 18, Section 1001 of the United States Code — is one of the most frequently used, and problematic, pieces of criminal law on the books. It’s been on my radar screen since 2004, when a New York Sun editorial noted its use against Martha Stewart.

The editorial quoted Ruth Bader Ginsburg, who, in a concurring opinion in the 1996 Supreme Court case Brogan v. United States, warned of “the sweeping generality” of Section 1001’s language. Justice Ginsburg wrote: “The prospect remains that an overzealous prosecutor or investigator — aware that a person has committed some suspicious acts, but unable to make a criminal case — will create a crime by surprising the suspect, asking about those acts, and receiving a false denial.”

Since that prophetic warning, Section 1001 has been used against President Trump’s national security adviser, Michael Flynn; against President Trump’s campaign chairman, Paul Manafort; against Vice President Cheney’s chief of staff, Lewis “Scooter” Libby; and against President Obama’s White House Counsel, Gregory Craig.

In several of those cases, the charges were brought by a special counsel operating outside the standard Justice Department system. Such counsels have a special temptation to fall into the trap against which Robert H. Jackson warned in 1940. The “most dangerous power of the prosecutor,” Jackson said, is “that he will pick people he thinks he should get, rather than pick cases that need to be prosecuted.”

Jackson said, “It is in this realm — in which the prosecutor picks some person whom he dislikes or desires to embarrass, or selects some group of unpopular persons and then looks for an offense, that the greatest danger of abuse of prosecuting power lies.”

Mr. Christie, of all people, should be well aware of the hazards in this department. When the future governor was the top federal prosecutor in New Jersey, he won a conviction of the mayor of Newark, Sharpe James, on an “honest services fraud” count that was eventually reversed on appeal.

The principles here apply equally whether the alleged “crimes” were committed by Republicans or by Democrats and whether the special prosecutors are Republicans or Democrats.

Setting up a prosecutor with basically unlimited access to taxpayer funds and with effective exemption from the usual political supervision in the hopes of finding “crimes” that can be pinned on political actors is a tactic that belongs in a totalitarian society, not a free one.

If Russia interfered in the 2016 election, it’s a foreign policy issue, and a political issue. It doesn’t appear, though, to have affected the outcome, and federal criminal law is the wrong tool to rectify it with. As Mr. Christie appreciates, it’s not even clear that this is a winning political strategy. President Clinton won re-election in 1996 notwithstanding the Whitewater investigations of Special Counsels Fiske and Starr.

For partisan Republicans, the temptation is strong to try to answer with the Durham investigation the Trump impeachment and Special Counsel Robert Mueller’s investigations. Mr. Christie is right, though, to warn that the politics of grievance won’t win over swing voters.

They are more interested in what the outcome of the next election will mean for their family than in the details of the Steele dossier. Future American political campaigns of both parties will have a hard time attracting top-quality talent if the price of political involvement is a criminal prosecution that drags on nearly half-a-decade after an election.

________

Correction: Ira Stoll is the author of this column. His byline was omitted in the first mailing and the column was mis-labeled as an editorial.


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