I posted this article from DC Lawyer, handle Techno Fog. To some that try to debate authors credentials, I suggest you refute the facts.
Yesterday, we
highlighted some of the more important conclusions Special Counsel John Durham reached in his long-awaited report. Today, we do a deeper discussion into Durham’s findings.
And we start with what was omitted: the DNC “hack.”
The Barr Appointment Order and the DNC Hack
US Attorney John Durham was appointed by Attorney General Barr as Special Counsel in October 2020. The
appointment order stated Durham was authorized to investigate the intelligence and law enforcement “directed at the 2016 presidential campaigns, individuals associated with those campaign, and individuals associated with the administration of President Donald J. Trump, including but not limited to Crossfire Hurricane and the investigation of Special Counsel Robert S. Mueller, III.”
Initially, that appointment order got our attention because it mentioned the 2016 “campaigns”: Durham would be reviewing investigations “directed” at the Hillary Clinton campaign.
What investigations were those?
Nobody had a good answer at the time, and the suspicion was that it may include the purported Russian “hack” of the DNC/Clinton Campaign. The idea that Durham was looking at the DNC hack gained traction when it was reported that Durham’s team was
asking this question to a Georgia Tech researcher associated with the Alfa Bank hoax perpetuated by DNC/Clinton lawyer Michael Sussmann:
“Do you believe that DARPA should be instructing you to investigate the origins of a hacker (Guccifer_2.0) that hacked a political entity (DNC)?”
Missing from Durham’s report, however, was a review or analysis of the DNC hack.
Why is the DNC hack important?
It’s the starting point to all this, and it may have played a role in why the Clinton Campaign - especially Michael Sussmann, et al. - was so focused in linking Trump to Russia, even if it risked criminal charges. The theory being that the Russians didn’t hack the DNC or the Clinton campaign or the DCCC. The FBI never got the servers and they relied, in large part, on findings from DNC/Clinton Campaign contractor Crowdstrike - who just happened to be contracted by Michael Sussmann. Yet Crowdstrike, according to Aaron Mate, “
had no concrete evidence that Russian hackers stole emails from the Democratic National Committee’s server.”
Why the omission?
Likely because Durham, right or wrong, followed Barr’s order as written and didn’t see it within his authority as Special Counsel to chart his own course to include the DNC hack. (The idea being that the DNC hack investigation was not “directed” at the Clinton Campaign.) To elaborate further, the report generally explains Durham’s interpretation of Barr’s order, stating it didn’t include instructions to review the DOJ/FBI’s handling of Hillary Clinton’s use of a private e-mail server or their targeting of Lt. General Michael Flynn.
What, then, to make of Durham team’s question about DARPA instructions to investigate the DNC hack? This is just an educated guess, but it may have to do with Durham’s referral to the DOD Inspector General of “irregular conduct in 2016 of two former employees of the Department of Defense.” Durham’s team may have seen something concerning and referred it to the DOD instead of opening their own investigation into the matter.
To summarize, the DNC hack attribution wasn’t a focus of the Durham investigation because Barr decided not to include it in the appointment order. That was a remarkable omission and an unfortunate mistake by Barr, who rightly viewed Crossfire Hurricane and the Trump/Russia investigation with skepticism but didn’t think to extend that skepticism to other matters involving many of the same players.
The Predicate for Crossfire Hurricane
With respect to his review of Crossfire Hurricane, Durham looked at the “information known or available to the FBI” prior to the opening of that investigation. As you may recall, Crossfire Hurricane was opened as a “full counterintelligence investigation” into the Trump campaign – one which allowed for the use of investigative tools not allowed at the preliminary investigation stage – based on casual conversations Trump campaign volunteer George Papadopoulos had with an Australian Diplomat and Australian High Commissioner Alexander Downer. Papadopoulos allegedly “suggested the Trump team had received some kind of suggestion from Russia” that it could anonymously release information damaging to Clinton and President Obama.
The FBI decision to open the full investigation into the Trump campaign came from its top officials, who were “unanimous” in their support despite FBI policies prescribing a “measured approach” to the opening of the investigation that was not followed by the Crossfire Hurricane team. It was done so without “any intelligence or other vetted, corroborated information regarding Trump or his campaign staff colluding with the Russian government.” Peter Strzok, days after
drafting and approving the Electronic Communication (EC) that opened Crossfire Hurricane, basically commented to an FBI London employee that “there’s nothing to this.” British Intelligence apparently agreed, believing the Papadopoulos information was not “particularly valuable intelligence.”
As Crossfire Hurricane proceeded, the FBI decided against critically analyzing the Papadopoulos information or furthering its understanding of the Trump campaign’s contacts with Russia. That decision was apparently led by FBI leadership. According to an FBI London Assistant Legal Attaché: “FBI executive management was pushing the matter so hard that ‘there was no stopping the train.’” While FBI executives pushed the investigation, they also made sure that the agency did not conduct regular investigative steps, such as interviewing Carter Page and George Papadopoulos, or issuing national security letters, or using pen registers and trap and trace devices.
Who was the FBI executive that pushed the most?
It had to be FBI Director James Comey, who demanded a FISA be issued on Carter Page. Comey made that known despite being warned that the Steele reporting, on which the FISA warrant relied, was likely a Clinton campaign product. The impression from the Durham report is that the FBI analysts and agents assigned to the Carter Page FISA application (and the first renewal) were the product of pressure from FBI leadership.
FBI DAD Jennifer Boone, for example, ignored assessments from her agents that Page wasn’t a Russian agent and directed them “to continue the FISA renewal process.” It was the view of Boone’s team that she was “being directed by FBI executive management to continue the FISA surveillance.” Boone herself believed that Andrew McCabe was “heavily involved in all aspects of the investigation.”
All the while, even after the second Page application was submitted to the FISC, “the FBI still did not possess any intelligence showing that anyone associated with the Trump campaign was in contact with Russian intelligence officers during the campaign.” This should be no surprise given the findings of the 2019 IG report.
The Hillary Clinton Investigations
As we discussed in the opening, Durham’s scope included the FBI investigations “directed” at the Hillary Clinton campaign. It seems the purpose of that review was to assess and compare the favorable treatment received by Clinton to the targeting of Trump.
The first investigation involved an FBI tip from a CHS that a foreign government was sending a person “to contribute to Clinton’s anticipated presidential campaign, as a way to gain influence with Clinton should she win the presidency.” (Which country?!) An FBI field office sought a FISA against the foreign contributor and made that request to FBI headquarters, which
ignored it for four months due to the fact that they were careful that Clinton was “involved.” According to one FBI Agent, “They were pretty ‘tippy-toeing’ around HRC because there was a chance she would be the next president.” The FISA was approved on the condition that the FBI give defensive briefings to Clinton.
The second Clinton investigation involved the same CHS, who in November 2015 reported to the FBI that another foreign government was looking to contribute to the Clinton campaign “in exchange for the protection of [that country’s] interests should Clinton become President.” That CHS would end up making a $2,700 donation to the Clinton campaign on behalf of a foreign insider, in violation of federal law which bans contributions by foreign nationals. The CHS told their handling FBI agent that “They [the campaign] were okay with it. […] yes they were fully aware from the start” of the contribution being made on behalf of the foreign interest.
Who was the FBI’s confidential human source that caught the Clinton campaign in illegal activity? Thanks to great work by the
talented Fool Nelsonshowing a
$2,700 contribution from Patrick Byrne, we have this admission from Byrne himself (no telling if he is being truthful, with Byrne’s history and all):
Somehow, the FBI did not obtain copies of the illegal payment and the CHS’s FBI handlers “could not explain why this apparent illegal contribution was not documented in FBI records.” Instead, the FBI handling agent “
told the CHS to stay away from all events relating to Clinton’s campaign.” Later on, the CHS, who had essentially caught a member of the Clinton campaign facilitating illegal contributions, was admonished by the FBI:
“do NOT attend any more campaign events, set up meetings, or anything else relating to [Clinton’s] campaign. We need to keep you completely away from that situation. I don’t know all the details, but it’s for your own protection.”
Durham questioned how the FBI could reconcile giving defensive briefings to the Clinton campaign while denying defensive briefings to the Trump campaign. He compared the FBI and DOJ’s “measured approach” to the Clinton campaign investigation to the speed at which the FBI ran with Crossfire Hurricane. He also contrasted how the FBI made almost “no effort to investigate the possible illegal campaign contribution” to the Clinton campaign “or the Clinton campaign’s purported acceptance of a campaign contribution made by the FBI’s own long-term” source.
The other Clinton investigation Durham reviewed – the investigation into “possible criminal activity involving the Clinton Foundation” – demonstrated, yet again, favorable treatment received by Clinton from FBI leadership. According to Durham, the Clinton Foundation case opening communication:
referred to an intelligence product and corroborating financial reporting that a particular commercial “industry likely engaged a federal public official in a flow of benefits scheme, namely, large monetary contributions were made to a non-profit, under both direct and indirect control of the federal public official, in exchange for favorable government action and/or influence.”
Additionally, the FBI Little Rock and New York Field Offices investigations “included predication based on source reporting that identified foreign governments that had made, or offered to make, contributions to the Foundation in exchange for favorable or preferential treatment from Clinton.”
Despite this evidence, DOJ and FBI leadership essentially sabotaged the Clinton Foundation investigation. The DOJ was “hostile” to the Clinton Foundation presentations from the FBI Field Offices. And at a February 2016 FBI meeting to discuss the Clinton Foundation investigations, Assistant Director Andre McCabe ordered the cases to be closed. He would reconsider that demand following objections. However, any overt investigative steps needed McCabe’s approval. In May 2016, FBI Director Comey would, through an intermediary, demand the New York Field Office “cease and desist” their Clinton Foundation investigation. And in August 2016, as the presidential election approached, the US Attorneys’ offices in the Southern and Eastern Districts of New York declined to issue subpoenas to the FBI New York Field Office in support of their Clinton Foundation investigation.
They Spied on President-Elect Trump
Jumping around here for a moment: in February of last year, we reported on Durham filings in the Michael Sussmann case that indicated Rodney Joffe (a Clinton ally and FBI CHS) and his associates “exploited internet data from ‘the Executive Office of the President of the United States’ to further their own political agenda and damage President Trump.”
The Durham report provides additional context. Joffe had obtained, through what we might call a business colleague, data from the Executive Office of the President (the EOP’s network was supposedly run by DHS through a vendor) to create allegations that Trump, or someone in Trump’s orbit, was using a Russian Yotaphone to communicate with Russia. These allegations were taken by Sussmann to the CIA, which reviewed the data and passed it along to the FBI. Both agencies saw the allegations were bunk.
Here’s what the Durham report says about how Joffe obtained the data:
- A tech executive with access to Executive Office of the President (EOP) data was running queries on behalf of Joffe after Trump’s inauguration.
- After Sussmann’s meeting with the FBI, Joffe demanded a search in the Executive Office of the President data from February 1, 2017 through February 14, 2017, and for January of 2017.
- The tech executive with access to the data emailed Joffe: “I think I need to look at overall EOP volumes since Jan 20 to see if there have been significant volume changes.” That would include Trump data while he was President.
The Clinton Plan to Vilify Trump
While the FBI was taking an essentially hands-off approach in investigating Hillary Clinton and the Clinton Campaign, it was knowingly using false information supplied by the Clinton Campaign to target Trump before and after the election. Call it the “Clinton Plan”.
In late July 2016, US intelligence agencies learned that “U.S Presidential candidate Hillary Clinton had approved a campaign plan to stir up a scandal against U.S. Presidential candidate Donald Trump by tying him to Putin.” This information went directly to CIA Director John Brennan, who would brief its contents on August 3, 2016 to President Obama, Vice President Biden, Attorney General Loretta Lynch (attending remotely) and other senior Obama Administration officials, as well as FBI Director Comey. Brennan’s handwritten notes specifically mention briefing the Obama White House on “alleged approval by Hillary Clinton on 26 July of a proposal from one of her [campaign] advisors to vilify Donald Trump by stirring up a scandal claiming interference by the Russian security services.”
Some FBI leaders and analysts and agents involved in Crossfire Hurricane – Brian Auten, Bill Priestap, and Peter Strzok – would receive this intelligence in September 2016. The information was undoubtedly material to both the FISA Court (in the upcoming FISA applications) and to assessing the intelligence coming from Christopher Steele. Yet the Crossfire Hurricane team didn’t take “any action to vet the Clinton Plan intelligence.” Again, Durham observed this stood in stark contrast to the aggressive steps taken by the FBI to investigate Trump.
Then there is the question of whether there was a criminal element to the Clinton Plan. As Durham phrased it, whether the Clinton Plan “as to intentionally provide knowingly false and/or misleading information to the FBI or other agencies.”
To get to the bottom of that question, Durham “interviewed a number of individuals connected with” the Clinton Campaign, including Hillary herself. One campaign foreign policy advisor admitted “that it was possible that she had proposed ideas” on the Trump/Russia topics “to the campaign’s leadership, who may have approved those ideas.” They also admitted that it was “possible” someone proposed linking Trump to Russia to distract from Clinton’s private email server. These discussions were followed by public statements from Clinton campaign manager Robby Mook which said “the Russian government had carried out the DNC hack to assist Trump’s electoral changes.”
Durham would ultimately find that there was “support for the notion that the Clinton campaign was engaged in an effort or plan in late July 2016 to encourage scrutiny of Trump's potential ties to Russia, and that the campaign might have wanted or expected law enforcement or other agencies to aid that effort, in part, by concluding that the Russians were responsible for the hack.” The evidence in support included Clinton Campaign lawyers Marc Elias and Michael Sussmann meeting with Fusion GPS just “three days after the purported approval of the Clinton Plan.”
Yet Durham didn’t have the evidence to charge anyone from the Clinton Campaign with intentionally providing false information to the government. While it was the Clinton Campaign who came up with the general Trump-Russia plan, they were insulated from the planning and execution – and thus consequences – of that scheme by their Perkins Coie lawyers, who used Fusion GPS and Christopher Steele (among others) to feed rumors and innuendo to the FBI.
That gets us to the other prosecution decisions.
I’ll start by observing that Durham’s team didn’t have a problem bringing to trial stand-alone false statement charges against those accused of deceiving the FBI. Sussmann was charged after giving conflicting statements to the FBI and to Congress; Danchenko was charged after lying multiple times to the FBI. Those are difficult cases for a prosecutor at trial. With that in mind, we assume that Durham would have charged FBI officials with false statements (or other crimes) if he had the evidence. (Unless the assumption is that Durham was scared to do so? But that doesn’t square with Durham’s history.)
Take, for example, the FBI’s submissions to the FISC. To prove perjury from those FISA warrants, Durham would need to prove the official made a false statement “with knowledge of its falsity, rather than as a result of confusion, mistake, or faulty memory.” There is no doubt that the submissions contained numerous falsehoods. Yet Durham concluded that the evidence they collected was not “sufficient” to meet that burden. (Part of the uphill battle Durham faced is that the system is established to insulate and protect those in power.) This doesn’t mean a crime didn’t occur; but rather, that there wasn’t a paper trail or direct testimony to support moving forward with charges.
Why wasn’t there direct testimony? In part because a number of former FBI officials involved in Crossfire Hurricane, from James Comey to Peter Strzok to Bill Priestap, declined to be interviewed relating to their Crossfire Hurricane involvement. Durham could have compelled their testimony before a grand jury, but that would have involved (1) immunity to the witnesses; (2) grand jury secrecy; and (3) answers like “I don’t recall”. Other witnesses who might have lied to the FBI invoked their Fifth Amendment privileges.
And why wasn’t there a paper trail?
A number of reasons. First, as we discussed
yesterday, once issues arose in the Trump/Russia investigation, there were instructions from the top to not “write any more memoranda or analytical pieces and to provide their findings orally.” That’s related to our second point: these are FBI officials and agents who
know the law and are adept at deceiving in a way to while avoiding prosecution. “Mistakes were made” or “I must have forgotten.” By the time their actions are reviewed, years have passed, memories are stale, and thus the necessary element of
intent is even more difficult to prove. Third, Durham was unable to obtain some records due to attorney-client privilege - most notably Fusion GPS emails “that were purportedly prepared to assist Perkins Coie in providing legal advice to the law firm’s clients, the Clinton campaign and Fusion GPS.”
This isn’t to say that there wasn’t circumstantial evidence of FBI lies. (Just that proving the case on circumstances alone is extremely difficult for a prosecutor.) The FBI’s mistakes, which Durham thoroughly catalogued in his report, all went one direction: against Trump and his associates.
This was true for the inception and furtherance of Crossfire Hurricane, and it remained true throughout each investigative step, from the Carter Page FISA warrants to Michael Sussmann’s Alfa Bank/Yotaphone hoaxes (where FBI leadership protected Sussmann as a source – “FBI leadership, including Strzok, instructed him not to identify the source to the team”), to the protection of Steele primary subsource (and later, FBI CHS) Igor Danchenko. Time and time again, FBI personnel and FBI leadership refused to act on, or even investigate, information damaging to their collusion narrative. They protected sources who may have offered information damaging to the FBI, even to the point of trying to hide Danchenko as a future CHS
during the Durham investigation.
In doing so, the FBI didn’t just abuse its authority and undertake an illegal spying campaign. It influenced elections. It permanently tarnished the reputations of good men like Carter Page. It created the Trump/Russia media frenzy that lasted for years. And it ruined the lives and otherwise bankrupted a significant number of targets and witnesses.
All because the FBI objected to the choice of the voters.
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