For months, the names of Michael Horowitz and John Durham have figured in the pounding rhythms of right-wing media in which a heroically afflicted president faces down his perfidious enemies. A steady drumbeat of reports from Fox News, echoed by President Trump and Republican loyalists in Congress, proclaimed these two obscure Justice Department officials would get to the bottom of an alleged conspiracy against the Trump presidency.
They would, in Trump’s words, “investigate the investigators.” It was oh so promising.
“I will tell you this,” Trump blustered on October 25. “I think you’re going to see a lot of really bad things,” he said. “I leave it all up to the attorney general and I leave it all up to the people that are working with the attorney general who I don’t know. … I think you’ll see things that nobody would’ve believed.”
Horowitz, as the DOJ inspector general, had the narrower assignment. He was tasked with investigating the Foreign Intelligence Surveillance Act warrants issued to intercept the communications of Trump campaign adviser Carter Page. Horowitz had to answer the question: Was Page targeted for political reasons, perhaps based on the famous “Steele Dossier”?
Durham, a senior U.S. attorney in Connecticut, has a broader brief: to review the FBI’s decision to open an investigation of the Trump campaign’s contacts with Russians in 2015. Durham was selected for the job by Barr.
For those inclined to believe Fox News and the president, the “deep state cabal” that allegedly targeted Trump was running scared. In early October, Fox News reported that “Barr and Durham traveled to Italy recently to talk to law enforcement officials there about the probe and have also had conversations with officials in the U.K. and Australia about the investigation.” From this report, the Daily Caller imaginatively extrapolated that Durham’s probe had expanded to include “looking at the activities of foreign intelligence agencies.” (One British official told the Independent that Barr and his minions asked, “in quite robust terms, for help in doing a hatchet job on their own intelligence services.”) On October 22, the Washington Examiner said Durham was “scrutinizing four key figures”; the Spectator, a right-wing British magazine, claimed former CIA director John Brennan was in “Durham’s crosshairs.”
And so on.
"Things that nobody would’ve believed"
Trump’s words, ironically, are coming true. Horowitz, it is now reliably reported, found that the Trump/Fox News talking points about a “deep state” conspiracy against Trump are, in fact, “things that nobody would’ve believed.”
Horowitz’s report, says USA Today, is “expected to conclude the FBI was justified in launching its two-year inquiry into the Trump campaign and possible ties to Russian interference in the 2016 presidential election.”
The Washington Post reports that Durham has already disappointed Trump. In the course of Horowitz’s investigation, Durham declined to endorse one key Republican talking point: that one witness, Joseph Mifsud, was actually a CIA or FBI agent deployed to undermine and defeat Trump’s presidential bid.
Durham, according to the Post, has “said he could not offer evidence to the Justice Department’s inspector general to support the suspicions of some conservatives that the case was a setup by American intelligence.” (The Post describes its source as “people familiar with the matter.”)
Those pundits expected Horowitz to side with the president could be detained by mere facts, no matter how public. Remember a couple of hundred news cycles ago — mid-October — when right-wing media was filibustering about the identity of the CIA whistleblower who first brought Trump’s Ukraine pressure campaign to light?
At the time, Horowitz was engaged in a more substantive matter. As inspector general, Horowitz played a leading role in an extraordinary letter, signed by about 70 inspector generals, about the Justice Department’s handling of the whistleblower’s allegation. Although the letter never mentioned the attorney general’s name, its message was a broad rebuke of Barr.
The legal question was far too intricate to generate pleasurable repartee on Twitter. The whistleblower complained in August to the inspector general in the Office of the Director of National Intelligence (DNI). The DNI is legally bound to pass to Congress only whistleblower complaints of “urgent concern.” Joseph Maguire, the acting director of national intelligence, passed the buck and asked the Office of Legal Counsel (OLC) for guidance. In a secret memo, dated September 3, the OLC decided the whistleblower’s complaint was not an “urgent” matter that had to be passed to Congress.
The OLC, beholden to Barr, took the position that there was no need to tell Congress of the possibility that Trump was withholding congressionally appropriated funds from the beleaguered Ukraine armed forces in order to force the Ukraine president to investigate Joe Biden’s son. The legal logic was fallacious and tortured.
Horowitz’s name topped the list of roughly 70 inspectors general who declared:
“the OLC opinion [written at Barr’s behest] could seriously impair whistleblowing and deter individuals in the intelligence community and throughout the government from reporting government waste, fraud, abuse, and misconduct.”
Of course, the letter was a dud on social media, cable TV, and Fox News. Who cares what a bunch of bureaucrats in Washington think? Horowitz, the hoped-for savior of Trump, had rebuked his boss, along with almost six dozen other senior civil servants in public. His real-world actions were ignored by conservative news outlets hyping imaginative reports on his investigation.
Will John Durham follow Barr’s lead? Or Horowitz’s?
“The modus operandi of this administration is that when they cannot dismiss somebody else’s fact-based conclusions, they create a parallel narrative,” Joel Brenner, a former inspector general at the National Security Agency in the George W. Bush administration, told USA Today.
What kind of narrative will Durham write?
One clue can be heard in “The Report,” a new movie starring Adam Driver about the Senate Intelligence Committee’s 2014 report on torture. The name “Durham” is heard exactly once in the movie. And yes, it is a reference to the same John Durham.
Durham is a career Justice Department prosecutor in Connecticut. In 2009, Attorney General Eric Holder assigned him to investigate the CIA’s torture program. It was a delicate assignment. On the one side, he had to poke into the dirty business of a $15 billion-a-year agency that believed it had legal and presidential sanction for “enhanced interrogation techniques.” On the other side, he was working for a popular new president who said the program was abhorrent and a host of lawyers who said it might well be criminal.
Durham, in short, walked into a legal and political minefield. Two years later, he emerged unscathed with a supple, if not evasive, reading of the law. His investigation exonerated the CIA on 99 out of 101 incidents of torture.
Whatever you make of Durham’s report legally and morally, it was politically adroit. The report pleased Obama and Holder, who dodged the need to take on the barons of the national security agencies. His report pleased the CIA, which dodged the bullet of indictments of senior officials who had approved the torture regime, including John Brennan. As a narrative, Durham’s torture report shows that he implicitly shares the worldview of Brennan and other senior national security managers.
He’s also a career prosecutor sure to consider all the facts brought to his attention.
Trump was enraged and threatened by national security leaks, even before he took office. Did Brennan et al commit any technical violations of the Espionage Act in talking to reporters about the president-elect’s Russian contacts? Quite possibly. Would John Durham go out on a legal limb to prosecute former top U.S. officials on behalf of Barr and Trump, who will be gone from Washington in five years at the maximum? That seems highly unlikely.
As Trump sails into the high seas of a Senate impeachment trial, Durham’s report on the origins of the Trump-Russia investigation is not likely to be a lifeline.