Foiled by Juries, John Durham Takes to the Court of Public Opinion

The acquittal of Igor Danchenko on four counts of lying to the FBI — a fifth was tossed by the judge — signals the end of special counsel John Durham’s efforts in court. Mr. Danchenko joins Democratic lawyer Michael Sussman in being found not guilty of fibbing to the feds. Mr. Durham’s first target, FBI lawyer Kevin Clinesmith, was accused of doctoring an email relating to the surveillance of Trump campaign aide Carter Page. He pleaded guilty and was sentenced to probation. It appears that there will be no more trial preparation for Mr. Durham’s team, with one of its top lawyers, Andrew DeFilippis, taking a job at the Sullivan & Cromwell law firm. There are no current indications that more indictments are on the way. It is not quite curtains for Mr. Durham, however. The one-time United States attorney for the district of Connecticut, who was appointed special counsel by Attorney General Barr, now has a report to write. The summary of his findings is due to Attorney General Garland by the end of the year. It will be up to General Garland to decide whether to release that report, in part or in full. That decision will be similar to the fraught one faced by his predecessor, Secretary Barr, in respect of the report compiled by yet another special counsel, Robert Mueller, regarding Russian interference in the 2016 election. It was the origins and predicates of that inquiry that eventually led to Mr. Durham’s appointment, first as an investigator and then as special counsel invested with prosecutorial powers to subpoena and charge. Mr. Mueller’s work, which yielded convictions against high-profile members of President Trump’s inner circle — such as the campaign chairman, Paul Manafort, the national security adviser, Michael Flynn, and a political operative, Roger Stone — nevertheless stopped short of recommending criminal charges against Mr. Trump. In a highly criticized move that he has steadfastly defended, Mr. Barr released his own summary of the Mueller report before its official dissemination. He concluded that the “evidence developed during the Special Counsel’s investigation is not sufficient to establish that the President committed an obstruction-of-justice offense.”A federal judge, Reggie Walton, lambasted that précis, writing that he could not “reconcile certain public representations made by Attorney General Barr with the findings in the Mueller Report.” Judge Walton entertained the possibility that Mr. Barr made a “calculated attempt to influence public discourse about the Mueller Report in favor of President Trump.”Mr. Mueller was himself critical of Mr. Barr’s decision to craft his own summary rather than ones prepared by the special counsel’s team. He averred that Mr. Barr “did not fully capture the context, nature, and substance of this Office’s work and conclusions,” which led to “public confusion about critical aspects of the results of our investigation.”Prosecutors are usually judged by their work in front of the witness stand, not in front of their computers. That is not the case with special counsels, whose missions call for public reckonings apart from trials. They are appointed by the attorney general in the name of the “public interest” in cases of “conflict of interest for the Department or other extraordinary circumstances.”There are those who view special counsels as unconstitutional — in that 100 percent of the executive powers adduced in the Constitution are vested in “a President of the United States of America.” The idea that a special counsel might be vested with powers others than those he is given by the president strikes some as crosswise with this principle.This is particularly so because while the special counsel is appointed by the attorney general, Congress plays a central role in overseeing their work. 28 U.S. Code § 595 directs not the president but the special counsel, who works for the president, to submit a “report on the activities of the independent counsel, including a description of the progress of any investigation or prosecution conducted by the independent counsel.”One such report, issued by a one-time judge and solicitor general, Kenneth Starr, led to the impeachment of President Clinton. The one authored by Mr. Mueller failed to yield charges, of impeachment or otherwise. Now it is Mr. Durham’s turn to make his case — not to jury or judge, but in the court of public opinion.

Foiled by Juries, John Durham Takes to the Court of Public Opinion

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