Thursday, June 30, 2022

On Eve of ‘RussiaGate’ Trial, Questions Loom About Special Counsel Durham

With final preparations underway this week for one of the most politically explosive federal prosecutions in years, U.S. Justice Department Special Counsel John H. Durham’s record reveals legal error that undercuts his image as straight-shooting seeker of justice.

In a 2008 ruling that has never been reported by a major news outlet, a New York federal appeals court vacated bribery, wire fraud and racketeering convictions john durham Custombecause a team led by Durham, left, then the Deputy U.S. Attorney in Connecticut (and Acting U.S. attorney for supervising the prosecution), illegally withheld evidence that could have helped federal defendant Charles Spadoni defend himself in a corruption case.

In another case, a Connecticut federal judge overturned a conviction in 2003 because of what she ruled in a 57-page decision was Durham’s repeated prosecutorial misconduct at trial, a sanction that authorities stated is extremely rare in the federal system.

Past performance is relevant now because Durham’s three-year probe of alleged illegality pertaining to the 2016 U.S. presidential election is reaching a pivotal and controversial juncture with the trial next month of the prominent cyberlaw attorney Michael Sussmann, right, on a claim that Sussmann falsely denied that michael sussmann perkins youngerhe was representing Democratic nominee Hillary Clinton when he sought to alert FBI general counsel James Baker in the fall of 2016 to suspicions of Russian interference.

Sussmann, his attorneys and some independent commentators have denied wrongdoing and claimed that the prosecution is exceptionally weak and also tainted by political partisanship by Durham, a career prosecutor who was also nominated by President Trump for the political post of U.S. attorney for Connecticut.

Several important pretrial motions were heard on April 27 by U.S. District Judge Christopher R. Cooper in Washington’s federal court. (See appendix below for analysis: Sussmann Prosecutors Seek Legally Dubious “Tactical Advantage” At Trial, Defense Claims.) The judge largely resolved them on May 7 in favor of the defense, as reported in  “Judge spares Clinton camp in Sussmann ruling “ (Politico). The trial is scheduled to begin May 16.

Durham’s case against Sussmann, a former partner at the DC office of law firm Perkins Coie, has generated substantial interest in the U.S. national press, particularly in pro-Trump circles where some Trump supporters regard it as their last best hope to vindicate Trump’s 2016 election victory as a purely American popular effort, thereby debunking claims that Russian operatives interfered in the 2016 election to hurt Clinton and other Democratic candidates.

donald trump for president button nice smileSussmann and his defenders, on the other hand, have defended his actions as both non-criminal and reasonable, particularly in view of what they see as confirmed threats to the elections process posed by Russians, Trump and their allies. Sussmann’s defense lawyers accused Durham, for example, of promoting a “baseless narrative that the Clinton campaign conspired with others to trick the federal government into investigating ties between President Trump and Russia.”

Sussmann’s attorneys also have pointed to evidentiary problems in Durham’s case, including the lack of contemporary notes by the key FBI witness, James Baker, to support the Durham prosecution team’s allegation that Sussmann criminally deceived Baker regarding his relevant clients.

The case, in other words, has come to be regarded in some quarters as either a rigorous and fearless application of the law by Durham and his team — or, conversely, as an example of over-zealous overreach by an unaccountable prosecutor suspected of bringing a baseless prosecution to favor pro-Trump politics.

A consistent theme in the news accounts exploring the Durham investigation is that prosecutor and his team, including Nora R. Dannehy, a former Acting U.S. Attorney in Connecticut and longtime Durham colleague, bring to their work outstanding reputations as career prosecutors long entrusted to fulfill their responsibilities with the highest standards of professional expertise and justice-seeking.

And this is why the 2008 federal court decision, invalidating Durham’s prosecution of Spadoni for prosecutorial misconduct, remains especially relevant today in Durham’s prosecution of Sussmann.

barry sussmanHere’s the story: New Questions Raised About Prosecutor Who Cleared Bush Officials in U.S. Attorney Firings, which we at the Justice Integrity Project originally reported in 2010 in Nieman Watchdog, a niche website published by Harvard University and edited by Barry Sussman, left, the former Watergate editor of the Washington Post who supervised its coverage of that scandal. Sussman is also the author of the recently released fifth edition of The Great Cover-up, a widely praised account of the Watergate probe.

The Nieman Watchdog story focused primarily on the appointment of Durham and Dannehy as special counsel investigating allegations of CIA and Justice Department misconduct. The story began this way:

“Four days before Nora Dannehy was appointed to investigate the Bush administration’s U.S. attorney firing scandal, a team of lawyers she led was found to have illegally suppressed evidence in a major political corruption case…..[T]his previously unreported fact calls her entire investigation into question as well as that of a similar investigation by her colleague John Durham of DOJ and CIA decision-making involving torture.”

charlesspadoniThe New York-based U.S. Second Circuit Court of Appeals had ruled that Durham’s team should have known that the Spadoni defense was entitled to an FBI’s agent’s notes, which could have been used by Spadoni to argue that his conduct was legal.

The three-judge court ruled unanimously in vacating the major convictions against Spadoni, right. Judges held that the evidence john gleeson Customunconstitutionally withheld might have helped Spadoni’s defense against prosecution claims that he and his employer, Triumph Capital, Inc., illegally conspired to hire a political consultant in hopes of winning a major contract from the State of Connecticut.

U.S. District Judge John Gleeson, left, a former federal prosecutor, authored the opinion, which is available here. It did not name the federal prosecutors at fault but the case caption and relevant filings were signed by Durham and Dannehy as the most senior attorneys.

Follow up correspondence to the courts in 2010 provides a sense of the high stakes and continued rancor. A memo signed by Durham and assistant, William J. Nardini, now a federal judge, urged the courts to sentence Spadoni without delay.

Spadoni’s attorney, William M. Sullivan, Jr.., responded this way:

In his Memorandum (“Mem.”), Charles Spadoni presents overwhelming evidence of the government’s continued misconduct in this case—misconduct which the Second Circuit  previously recognized when it sternly rebuked the government. Instead of being chastened by the Second Circuit’s opinion, however, the government complains of Mr. Spadoni’s “tone” and of the delay which has taken place in this case—even though responsibility for both lies in its
hands.

Widespread Praise

Durham and Dannehy have achieved widespread praise and career advancement as special prosecutors entrusted with reviewing several of the most sensitive Justice Department controversies of recent years. These include investigations of suppression of evidence, partisan prosecutions or other alleged serious wrongdoing by Justice Department and CIA personnel in major proceedings of historic stature.

That pattern continued after May 2019, when the Trump-appointed Attorney General William Barr named Durham, later assisted by Dannehy, to investigate the Trump team’s claims that the FBI and other Justice Department concocted phony claims of Russian interference in the 2016 presidential election along with Democratic operatives associated with Hillary Clinton’s campaign.

Tabloids, pro-Trump media outlets and some leftist critics of the Democratic Party have labeled the claims of Russian interference “RussiaGate” in many news stories and commentaries that suggest that Russian “interference” is colossal fraud on par with the Nixon-era scandal of the 1972 break-in by GOP and CIA operatives of the Democratic National Committee headquarters at the Watergate complex in Washington, DC.

Typical of such coverage are editorials by the Rupert Murdoch-owned New York Post, including a headline in February, Eyes turn to Hillary Clinton, not Trump in the Russiagate scandalA headline last fall was The real ‘collusion’ was the creation of ‘RussiaGate’ out of absolutely nothingFox News, pro-Trump Republican officers and many bloggers have similarly advanced arguments that Trump and Russians have been falsely accused.

John Durham: ‘The Legendary Lawman’

National Review columnist Jim Geraghty was even more forceful in a 2019 column headlined The Last Trusted Prosecutor in Washington, and subtitled: John Durham is the legendary lawman digging into how the intelligence probe of Donald Trump started. It began:

John Durham may be the most consequential and least known figure in Washington right now.

william barr new oIn May, U.S. attorney general William Barr (right) selected Durham, a longtime prosecutor with a résumé so sterling it nearly glows, to investigate the origins of the special counsel’s probe into Russian interference in the 2016 election, and whether it was properly predicated. Some Trump fans believe there was a vast effort by a “deep state” of high-ranking intelligence and law-enforcement officials to smear Trump or hinder his campaign by creating a perception of corrupt ties to Russia. In late October, the New York Times quoted unnamed sources who said that Durham’s probe had officially become a criminal investigation, meaning he now has the power to subpoena for witness testimony and documents, to convene a grand jury, and to file criminal charges.

Since he is an attorney general appointed by President Trump, almost every decision from William Barr is criticized by Democrats as a partisan abuse of law-enforcement powers. But the appointment of Durham received no backlash, and in fact received praise far and wide.

Who is Durham, this rare-as-a-unicorn figure who can reassure lawmakers, talking heads, and court-watchers on both sides of the aisle, in an era when everything seems destined to turn into a loud partisan food fight?

To say Durham is tight-lipped is an understatement; he lets his courtroom arguments speak for him and rarely talks to reporters at all. Those who have covered him for years — or, more accurately, tried to cover him — say that when he does run into reporters, he is cordial but uninformative, and almost never on the record. In Durham’s questionnaire for the Senate while awaiting confirmation to be a U.S. Attorney, he was asked to list his written work. He answered that he had never written or published any books, articles, reports, or letters to the editor.

seth abramson resized4 proof of collusionBy contrast, an analysis headlined Russiagate Was Not a Hoax in 2020 by staff writer Franklin Foer argued that the 2017 to 2019 investigation by Special Counsel Robert Mueller, a former FBI Director, and a bipartisan report by the Republican-chaired Senate Intelligence Committee showed that Russians seriously interfered with the 2016 elections and were well-positioned to do so in the future.

Similar themes have been advanced in court and by such books as the “Proof” trilogy (Proof of CollusionProof of Conspiracy and Proof of Corruption) by Seth Abramson, right, House of Trump, House of Putin by Craig Unger and Russian Roulette by Michael Isikoff and David Corn.

Back-and-forth argumentation on the seriousness of threats began during the post-election transition to the Trump presidency michael flynn flickr gage skidmore phoenix 10 29 2016when FBI personnel warned Trump that his campaign advisor Michael Flynn, a retired general and former Defense Intelligence Agency director, was falsely denying Russian contacts while Trump was in the process of naming Flynn to be the first National Security Advisor in 2017. Flynn, shown at left in a 2016 photo by Gage Skidmore, later pleaded guilty to federal charges, tried to withdraw his plea and ultimately received a pardon from Trump while helping lead a MAGA movement to have Clinton and her campaign personnel prosecuted.

U.S. District Judge Emmet Sullivan, who presided over the Flynn case, appointed Gleeson, by then a former judge, to serve as a special master to sort through the legal options when a such a defendant seeks to withdraw a guilty plea even after the kind of thorough plea admission that Sullivan had supervised, as our Justice Integrity Project witnessed in covering the case. But the Trump-Barr Justice Department short-circuited the prosecution by dropping it, thereby protecting Flynn, an ardent admirer of Trump famed also for leading campaign rally chants of “Lock her up!” demonizing Clinton.

Another oddity in Durham’s prosecution background is that retired FBI special agent Robert Fitzpatrick co-authored a 2011 memoir that criticized Durham as essentially whitewashing an investigation that is usually cited as one of Durham’s finest achievements.

robert fitzpatrickIn Betrayal: Whitey Bulger and the FBI Agent Who Fought to Bring Him Down, Fitzpatrick and co-author Jon Land wrote about Durham’s work in Boston after appointment by Attorney General Janet Reno to investigate Justice Department misconduct documented by U.S. District Judge Mark Wolf in a special report. The report confirmed the coddling of Bulger’s Irish-American gang by Justice Department personnel who were using them as informants against Italian-American Mafia leaders being prosecuted before Wolf.

Fitzpatrick claimed credit for initiating the investigation of the Bulger gang and FBI wrongdoing. He complained that higher levels of the Justice Department had been thwarting his internal probes.

He wrote that Durham then took an easy compromise by targeting solely the most obvious culprint, a flashy former FBI Boston supervisor, John Connolly, who is currently serving a life sentence for murder conspiracy.

“Nobody in this country is above the law, an FBI agent or otherwise,” Fitzpatrick quoted Durham as saying at Connolly’s sentencing, with the retired agent characterizing Durham’s words as “seeming to indicate a plan or at least an intention, to pursue other guilty parties.”

Fitzpatrick continued:

Nothing could be further from the truth. More than a decade later now, no additional arrests or prosecutions have taken place, in spite of the fact that I and a number of other law enforcement officials laid out all the evidence of corruption and leaking for Durham. We basically served up everything he needed on a silver platter, which he apparently ignored and has continued to ignore since.

A further oddity is that the Justice Department then prosecuted its retired agent, Fitzpatrick, for false statements for material in his memoir and elsewhere. He pleaded guilty. Neither he nor his co-author were available for comment when our Justice Integrity Project tried to contact them.

The controversies above are not the only ones in Durham’s background. In 2003, a federal judge in Connecticut took the extraordinary step of vacating a conviction in her court because of what she described as prosecution misconduct by Durham. The story is recounted in a 2003 news report by the Connecticut Law Tribune excerpted below and at greater length at the bottom of the appendix to this column, with a link to the docket here: Anthony Washington Docket Report.

Connecticut Law Tribune, Attorney’s Trial Tactics Impugned, Kellie A. Wagner, June 23, 2003. Judge tosses conviction.

Admonishing Deputy U.S. Attorney John Durham’s trial tactics, as well as her own failure to maintain courtroom decorum, U.S. District Judge Janet Bond Arterton hajanet bond artertons taken the extraordinary step of overturning a weapons charge conviction largely on account of prosecutorial misconduct.

In granting defendant Anthony Washington’s request for a new trial las month, Arterton (right) rebuked Durham for undermining the defense’s key witness, while personally vouching for those who took the stand on the prosecution’s behalf, maligning defense counsel and his arguments; and aluding to highly prejudicial facts not in evidence.

Durham could not be reached for comment by press time. But U.S. Attorney Kevin J. O’Connor said his office will be filing a motion for reconsideration in the matter.

Though he declined to reveal the specifics of the government’s objections, O’Connor acknowledged the rarity of a conviction being uprooted due to prosecutorial misconduct at the federal level, stating there have only been one or two such rulings in the past 20 years.

In fairness, it can be expected that any professional litigator would generate criticism during the course of a long career. But the criticism reported here against Durham by federal judges is both extraordinary and also is sharply at odds with his national image as an extraordinarily well-respected prosecutor.

Part of that discrepancy may arise from the economic cutbacks in advertising-supported local news media and national professional journals (the Connecticut Law Tribune was an affiliate of The American Lawyer) that used to cover courts, particularly in local and regional courts, far more thoroughly than now. That’s a larger issue but underscores the lack of public knowledge and accountability for decision-making in the justice system.

Government Accountability

There are many aspects of the current Durham investigation, his overall career, Russian election tampering and so-called “RussiaGate” that have prompted wide commentary, sometimes at book length because it relates to controversial aspects of national presidential elections. This column will use an appendix below to summarize a diverse array of such commentary, and instead focus in our remaining space on a couple of over-arching themes.

First is that Durham’s overall career success is publicly premised on the image that the public can rely on Durham and a few other high-ranking prosecutors (such as his longtime colleague Dannehy) to enforce justice even-handedly, not just against private attorneys like Sussmann and Spadoni, but also against federal agents suspected of illegal or unethical conduct, as in their probes of CIA officers who destroyed torture evidence or the Justice Department and White House operatives involved in the 2006 U.S. attorney firing scandal.

That’s government accountability, in sum, at least according to popular understanding, as reinforced by commentaries who increasingly lack the time and sources to penetrate the tight-knit world of high-level law enforcement.

nora dannehy doj photoAnd tight knit it is, and almost opaque to legislative oversight, much less to reporters and the rest of the public. Durham and Dannehy, right, spent much of the past three decades working in the Connecticut U.S. attorneys office. So did Dannehy’s husband, Leonard Boyle, the interim U.S. attorney recently running the office responsible for all federal criminal and civil litigation involving Connecticut, albeit under the overall supervision of the U.S. attorney general’s staff at “Main Justice” in Washington, DC. The Senate confirmed Biden-nominated Boyle’s successor on April 27.

All of these officials have made a virtue out of silence and secrecy except in court filings and appearances, as Boyle boasted of Durham in a rare if not unique public appearance by both of them in 2018 at a special lecture / tribute honoring Durham’s career arranged by the University of St. Joseph. As reported by Jim Geraghty in his 2019 National Review column The Last Trusted Prosecutor in Washington

The only time Durham has offered public remarks on his work was in a March 2018 lecture at the University of St. Joseph in West Hartford, Conn. Durham was introduced by his friend of three decades and frequent prosecutorial partner, Leonard C. Boyle, the deputy chief state’s attorney in Connecticut, and Boyle observed, “At least three members of the press are here tonight, because they probably realize that this may be their only chance to hear John speak about his work, other than in a courtroom. He’s notoriously shy about speaking about himself.”

The impenetrability of such decision-making, while undoubtedly legally correct in most instances, nonetheless carries a potential cost in public accountability when suspicions arise that decision-makers are neither fair nor error free. That has happened on several occasions with both Durham and Dannehy even beyond the Sussmann and Spadoni cases.

For still-mysterious reasons, for example, Dannehy dropped off Durham’s current investigation in the fall of 2020, shortly before the presidential election.

Only Edmund H. Mahony, right, a prominent legal reporter for the Hartford Courant for more than three decades, reported for any mainstream publication an indication of her reason for ed mahonyresigning. And even his reporting conveyed, in essence, a hint of displeasure, based on unidentified sourcing, about the probe’s direction.

That is very thin fare for the public to understand a continuing multi-million-dollar investigation about the integrity of the two major political parties during the 2016 presidential campaigns, including concerns of overall honesty of the FBI, particularly as controversies continue to simmer and while claims of Russian election interference in 2016 have morphed into fears of continuing election threats, enhanced by fallout from the Russian invasion of Ukraine.

Notable also is that both Durham and Dannehy advanced their reputations and careers by appointments to investigate wrongdoing at the Justice Department regarding the 2006 U.S. Attorneys firing scandal, for Dannehy, and destruction of torture evidence by CIA personnel, Durham’s probe. In both instances, the investigators of the major national scandals found no wrongdoing worthy of any significant sanction. Close scrutiny of Dannehy’s probe, which most reporters or watchdog officials are not in a position to provide, indicated that she interviewed only one of the eight (or arguably nine) of the 93 U.S. attorneys the Bush Administration fired for allegedly political reasons.

Their decision-making was attacked at the time as whitewashing major government scandals that ruined countless lives via unmerited prosecutions. Where is the accountability for any of that?

When the power and majesty of the U.S. Justice Department are brought to bear upon an individual almost everyone pleads guilty. A vigorous defense can easily cost a million dollars in a case like Spadoni’s or Sussman’s. Spadoni lost his law license from the prosecution begun in 1999 and thus his ability to make a professional income. He served 18 months in jail for trying before the federal prosecution geared up to delete from his computer two contracts that proved to be not on the computer. He says his legal costs were more than $5 million, albeit mostly covered by insurance.

Whatever the costs, most people do not have either those kinds of resources or a desire to subject their family and friends to the process, which can often include threats of dubious prosecutions against family and friends to pressure a primary defendant.

One of the great heroes of modern American civic life, the Pennsylvania coroner, author and medical school professor Cyril H. Wecht, M.D., J.D., below, now aged 91, faced legal bills of more than $8 million because he was targeted in 2006 with more than 80 felony charges in a political cyril wecht jfk assassination dissectedprosecution. More than 40 of them were “wire fraud” felony charges for using a fax machine for personal use in his part-time job as county coroner, with the total cost to county government calculated by Wecht’s attorneys as less than $3 in ink and telephone charges.

cyril wecht capa

Clearly, some politically ambitious or vengeful personnel at the Justice Department wanted put him in prison for the rest of his life following his long career of rendering independent judgments on the cause of death in more than 500 autopsies a year (and more than 600 in 2021). These included analysis of many high-profile deaths where his independent judgment might conflict with those of police and prosecutors. He performed an autopsy on the imprisoned murderer and former federal informant James “Whitey” Bulger, for example.

His more than 60 books, including textbooks used to train fellow forensic pathologists in medical schools, include two recent ones, The JFK Assassination Dissected and his memoir, The Life and Deaths of Cyril H. Wecht.

Wecht’s primary prosecutor in 2006, Mary Beth Buchanan, was a politically connected Justice Department executive at Main Justice who had supervised of all U.S. attorneys nationally during the George W. Bush presidency. In leading the prosecution against Wecht, she was gearing up for a future campaign for a Pennsylvania congressional seat.

But her prosecution and political career faltered after Wecht was able to win transfer of his case away from a hostile judge and towards a new one, who pressured the government to dismiss the case.

Not everyone has the will power and connections of a Wecht in perservering to win such a victory. In his case, he won wide support in his Metro Pittsburgh community and via his law team, which included former U.S. Attorney General Dick Thornburgh.

The federal oversight investigation by Dannehy, now counsel to Connecticut’s Gov. Ned Lamont, had nothing to say about that, with no record of even interviewingvictims or prosecutors aside from fired New Mexico U.S. Attorney David Iglesias. Her oversight probe, which we have described previously as a whitewash, thereby provided the most superficial illusion possible of effective oversight of massive injustice around the nation in numerous such cases that our organization and others were documenting, much like Durham’s similar probe of CIA wrongdoing.

christopher cooper

Judgment Day Looms

The day is fast approaching when Michael Sussmann, another intrepid but doubtless beleaguered defendant, will put Durham and his current investigation to the test. Following the pre-trial hearing on April 27, Sussman’s trial is scheduled to begin on May 16 before Judge Cooper, right.  The Justice Integrity Project will be among those covering developments, including the jury’s verdict on Sussmann — and in effect a verdict on Durham and the rest of like-minded Justice Department officials.

 

Author profile
Andrew Kreig

Andrew Kreig, a member of the Global Strat View advisory board, edits the non-partisan Justice Integrity Project in Washington D.C. following a long career in law, journalism and business. He was a founding board member of the Truth and Reconciliation Committee and is a consulting attorney pro bono for the Sirhan Sirhan defense. He holds law degrees from the University of Chicago and Yale University, and has been a DC-based attorney for three decades.

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