Below is my column in The Hill newspaper on growing and preemptive criticism of the Durham investigation by Democrats. Given the acknowledgment that United States Attorney John Durham is a widely respected and apolitical prosecutor, the rising criticism of his investigation seems suspiciously premature. For those of us who support full and transparent investigations of both sides of the 2016 election controversy, the campaign against Durham is reminiscent of the attacks on Special Counsel Robert Mueller.
Here is the column:
“She doth protest too much, methinks” is often misunderstood as a comment by Hamlet. But it is the response of his mother, Queen Gertrude, after he asks, “Madam, how like you this play?” Hamlet had arranged a performance that was strikingly similar to his suspicion that his uncle and mother murdered his father, the king, and then married. Her response to his “play within a play” only confirmed his suspicions of her guilt.
The same could be said in watching key Democrats “protest too much” to the investigation by United States Attorney John Durham into the origins of the Russia probe. Durham is asking why the Obama administration ordered secret surveillance and investigations of figures associated with the presidential campaign of the opposing political party. So much like Hamlet, this investigation within an investigation is strikingly similar to the allegations against the Trump campaign but involves Democratic figures. There are questions over the solicitation of foreign intelligence in the 2016 election, allegations of undue influence, and the use of later discredited allegations of conspiracy. According to news reports, Durham has now asked for his investigation to be elevated to a criminal investigation.
Both House Judiciary Chairman Jerrold Nadler and House Intelligence Chairman Adam Schiff have described the actions of Durham, a previously lionized prosecutor, as an abuse. Indeed, they declared that allowing Durham to look into potentially criminal conduct would cause “new and irreparable damage” to the rule of law. While he acknowledged that Durham is an honest and respected prosecutor, Schiff called the probe illegitimate and indicated that he would likely reject its findings.
It is a strikingly familiar strategy. Schiff himself cried foul last year when President Trump did the same thing to preempt and discredit the investigation by special counsel Robert Mueller. Like Mueller, Durham has done high profile investigations under Democratic and Republican administrations and has a stellar reputation as a solid no nonsense professional. Some of us have long supported both investigations. The news, however, that Durham sought the added powers of a criminal prosecution, including the ability to use grand juries, triggered a concerted effort to undermine his findings before he has made them.
The response by the Democrats is particularly glaring because, over the last three years, they have insisted on total transparency and a complete investigation of whether Trump campaign officials conspired with Russia in the 2016 election. Any statements or actions by Trump opposing that investigation have been declared both criminal and impeachable by the Democrats. However, the party that has demanded full disclosure and unhampered inquiry of the Trump administration is now apoplectic about an investigation touching on actions by the Obama administration.
The reason some of us have supported a full investigation of both sides is obvious. If Trump officials conspired with Russians to influence the 2016 election, the implications for our democratic system would be immense. The minute Trump fired FBI director James Comey in the middle of that investigation, many of us declared support for a special counsel. There are equally serious concerns raised by a Democratic administration launching an investigation of figures associated with a Republican challenger. There could well be valid reasons for that inquiry, however, the investigation of opposing political figures is a common practice in authoritarian nations, and it raises troubling implications for our government system.
Those concerns were magnified by the Obama administration relying on the work of former British spy Christopher Steele, paid for by the Clinton campaign, which lied repeatedly about funding his dossier that notably relied on Russian intelligence figures. While concerns were raised about the accuracy of the dossier, the FBI relied in part on it and mentioned only briefly that Steele might have had questionable motivations. Ultimately, Mueller found no evidence that any Trump associate or any other citizen knowingly colluded, conspired, or worked with Russian agents.
That seems ample reason for a full investigation by Durham to parallel the special counsel. With the nation so deeply divided over these allegations, the need for a full investigation of both sides would appear not just fairly warranted but essential to restore public faith in government actions. The protests over the Durham investigation are ironic because Democrats are doing precisely what Trump wrongly did with the Mueller investigation. At the time, I denounced Trump for his disparaging comments on the special counsel as highly inappropriate and reckless. So did the Democrats.
One of their talking points is that lawmakers already investigated the questions being looked into by Durham. Yet the Senate Intelligence Committee did not have the greater resources of a criminal investigation. Durham concluded, after more than a year of looking into the original Russian probe, that such criminal investigative powers would be necessary. He could well reach the same conclusion as the Senate investigators, but he has access to information not available to them. Not only can he review privileged material within the executive branch, but Durham enlisted Attorney General William Barr to secure unreviewed evidence held by foreign countries involving key players in the original probe. That includes tapes of an interview with professor Joseph Mifsud.
As I have previously discussed, Mifsud remains mired in controversy. The Maltese academic appeared to have ties to the Russians and seemed eager to tell former the Trump campaign aide George Papadopoulos that the Russians had hacked the Clinton campaign emails. Mueller reported that Mifsud lied repeatedly to investigators but, curiously, did not pursue criminal charges. That has fueled speculation about the true controllers of Mifsud, and Durham could put that controversy and many others to rest.
There are legitimate questions about the Obama administration looking into Trump associates. Those questions are magnified by the shocking bias of key players in the Russian probe, which led to the dismissal of FBI deputy director Andrew McCabe and FBI agent Peter Strzok. The Justice Department inspector general referred prior allegations involving officials like McCabe for possible criminal charges, a referral rejected under the attorney general. It is bizarre for Democrats to argue that key officials referring to “insurance policies” against a Trump victory should not concern the public or warrant finishing the Durham investigation.
That is why this investigation within an investigation can produce the most revealing moments. One does not have to believe that there is “something rotten” in the FBI to support the completion of the Durham investigation, from which many are unlikely to emerge unscathed. But the increasing protests over his work only heightens suspicions, and that is exactly why we need more disclosure than drama from Washington.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.