Below is my column in The Hill on recent reports of grand jury testimony in the Durham investigation. The implications of the grand jury — and the eventual report — have rattled folks in the Beltway this week . . . for good reason.
Here is the column:
This week Texas Rangers infielder Brock Holt became a baseball legend when he went to the mound and threw an “eephus,” a high-arching, off-speed pitch, in a game against the Athletics. It is believed to be the slowest pitch recorded in MLB history, and A’s batter Josh Harrison stood in disbelief as the 31 mph pitch was called a strike. Harrison just laughed in amazement.
Pirates outfielder Maurice Van Robays coined the term in the 1946 All-Star Game, explaining, “Eephus ain’t nothing, and that’s a nothing pitch.” But as Holt demonstrated, sometimes a “nothing” slow pitch can amount to a great deal.
That is equally true about the occasional criminal eephus that takes everyone by surprise. For example, U.S. Attorney John Durham’s investigation has been slow in coming, but on Friday, a report surfaced that he is pitching evidence to a grand jury in an investigation started back in May 2019. The Durham investigation is now longer in duration than former special counsel Robert Mueller’s investigation, and many people long forgot that Durham — made a special counsel at the end of the Trump administration — was even still in the game.
The report in The Wall Street Journal said Durham is presenting evidence against FBI agents and possibly others in the use of false information or tips at the start of the Russia investigation in 2016. Those “others” could include a virtual who’s who of Washington politics, and even if they are not indicted, Durham could implicate some of the most powerful figures in politics in his final report, expected in the coming months.
Even for those of us who followed and wrote on the Russia investigation for five years, much has been revealed in the last year. It was disclosed in October, for instance, that President Obama was briefed by his CIA director, John Brennan, on July 28, 2016, on intelligence suggesting that Hillary Clinton planned to tie then-candidate Donald Trump to Russia as “a means of distracting the public from her use of a private email server.” The date was significant because the Russia investigation was initiated July 31, 2016, just three days later.
Throughout the campaign, the Clinton campaign denied any involvement in the creation of the so-called Steele dossier’s allegations of Trump-Russia connections. However, weeks after the election, journalists discovered that the Clinton campaign hid payments for the dossier made to a research firm, Fusion GPS, as “legal fees” among the $5.6 million paid to the campaign’s law firm. New York Times reporter Ken Vogel said at the time that Clinton lawyer Marc Elias, with the law firm of Perkins Coie, denied involvement in the anti-Trump dossier. When Vogel tried to report the story, he said, Elias “pushed back vigorously, saying ‘You (or your sources) are wrong.’” Times reporter Maggie Haberman declared, “Folks involved in funding this lied about it, and with sanctimony, for a year.”
It was not just reporters who asked the Clinton campaign about its role in the Steele dossier. John Podesta, Clinton’s campaign chairman, was questioned by Congress and denied categorically any contractual agreement with Fusion GPS. Sitting beside him was Elias, who reportedly said nothing to correct the misleading information given to Congress.
It was later revealed that American intelligence viewed Steele as unreliable and believed his dossier was used by Russian intelligence to plant disinformation. Later reports show that Steele shopped the information to any reporters who would listen before the election and that there was an effort to get the information to trusted figures in the Justice Department.
This cross-pollination between the campaign and the Justice Department was evident in the strange role of Bruce Ohr, a senior Justice official who was later demoted for concealing his meetings with people pushing the Steele dossier; his wife, Nellie Ohr, worked for Fusion GPS as a researcher on Trump’s purported connections to Russia. Justice Department Inspector General Michael Horowitz subsequently found that Bruce Ohr acted improperly and committed “consequential errors in judgment.”
Others are reported in some media accounts to be in Durham’s crosshairs, including an analyst at the liberal Brookings Institution, Igor Danchenko, who was a source for part of the dossier and the subject of a Durham subpoena. Danchenko has been linked to a source viewed by American intelligence as a conduit for Russian disinformation and reportedly was investigated as a possible national security threat, according to at least one news report.
Durham also is reportedly looking into information concerning Alfa Bank, a privately owned commercial bank in Russia. That information led to possible access to the Trump campaign server. The Alfa Bank controversy is likely to make a number of powerful people particularly uneasy. Clinton campaign-linked figures such as Fusion GPS co-founder Glenn Simpson allegedly pushed the debunked claim that the Trump campaign had a server linked directly to the bank, which in turn was linked to Vladimir Putin and his cronies. The Alfa Bank conspiracy reportedly was pitched to the Justice Department, including in contacts with Bruce Ohr.
For many individuals, the statute of limitations may have passed on any alleged crimes. But the truth brought to light in any final report could result a public indictment of sorts.
Attorney General Merrick Garland may face some pressure to refuse to reauthorize a continuation of the Durham investigation, but he is likely to continue that support. After all, the Mueller investigation and various damaging investigations targeting Trump officials were approved and protected by his predecessor, William Barr.
The final fight may be over the report itself. Many in Congress and the media may not want it to see the light of day since it is likely to be an indictment not just of the FBI but of the establishment and an enabling media. Yet these same figures demanded “full transparency” over the Mueller report, including secret grand jury material barred from release under federal law. Even in a city that lives on political spin, reversing that narrative to demand secrecy or major redactions may be difficult to achieve in front of an increasingly distrustful public.
Thus, John Durham may be the slowest pitcher of all major league federal prosecutors — but a wide array of powerful people are afraid they may be called out at the plate by what he is about to let fly.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates on Twitter @JonathanTurley.