Despite Republican claims to the contrary, Durham’s investigation didn’t really move the needle on proving what the man who appointed him, Attorney General William P. Barr, suggested was a deliberate effort to “sabotage” Trump’s presidency. It instead rehashed much of what we already knew, and it pointed more toward “confirmation bias” by federal law enforcement than political malfeasance.
But some of the ways Durham explains those shortcomings cause prosecutorial ethics experts to blanch.
Somewhat akin to Trump and his allies, who have increasingly attacked the legal system, Durham points a finger at juries.
Early in his report, Durham seems to suggest his probe didn’t yield more significant prosecutions and convictions because it’s difficult to find juries unbiased enough.
“There are also reasons why, in examining politically-charged and high-profile issues such as these, the Office must exercise — and has exercised — special care,” Durham writes. “First, juries can bring strongly held views to the courtroom in criminal trials involving political subject matters, and those views can, in turn, affect the likelihood of obtaining a conviction, separate and apart from the strength of the actual evidence and despite a court’s best efforts to empanel a fair and impartial jury.”
As Politico’s Kyle Cheney noted, this flies in the face of how the Justice Department generally talks about prosecutorial decisions. It could certainly be read as Durham blaming jurors’ “strongly held” political views for his poor record in securing convictions and, perhaps by extension, for his decision not to seek to bring additional cases.
Barr offered similar comments last year while explaining the lack of convictions in the Durham probe.
Rebecca Roiphe, a former prosecutor who teaches legal ethics at New York Law School, acknowledged that the views of a potential jury can have an impact on a prosecutor’s decision on whether to bring charges.
“But it is unusual and troubling for a prosecutor to publicly explain a decision not to charge in this way,” she said. “Prosecutors generally speak through indictments, court filings, statements in court, as well as press conferences explaining recent charges. There is a reason why their public comments are limited in this way.”
Others indicated it might not be unethical, but that it could erode faith in the legal process.
“I personally don’t think it’s unethical, but it’s rare that we have this much insight into prosecutorial decision-making,” said Kami Chavis, a former prosecutor and expert on prosecutorial discretion at William and Mary Law School. “But to me all that does is give people the opportunity to second-guess the decisions of people who we assume do their job.”
Stanford University law professor Robert Gordon said this inclusion from Durham was “not unethical, but it does strike me as unseemly whining.”
Later in the report, Durham addresses the two cases in which he failed to secure convictions: the Michael Sussmann case and the Igor Danchenko case. Both were indicted on charges of making false statements to the FBI.
But despite juries unanimously rejecting those charges, Durham proceeds to state that both men indeed made false statements. And in the Sussmann case, in particular, he seems to maintain that his evidence was convincing that Sussmann broke the law, despite the acquittal.
Of Danchenko, Durham summarizes: “In November 2021, a grand jury sitting in the Eastern District of Virginia returned an indictment … charging Igor Danchenko with five counts of making false statements to the FBI. The false statements, which were made during Danchenko’s time as an FBI [confidential human source], related to his role as [Christopher] Steele’s primary sub-source for the Reports.”
Note the start of that second sentence: “The false statements,” rather than “alleged false statements.”
Durham also suggests that the blame for the lack of a conviction lies with a judge’s decision not to admit evidence of other “uncharged false statements” by Danchenko. He details those alleged other false statements.
Durham addresses the Sussmann case similarly.
“Our investigation showed that, in point of fact, these representations to [FBI general counsel James] Baker were false,” he writes. And he adds later, “In connection with that second presentation, Sussmann made a similar false statement to [the CIA], claiming that he was not providing the information on behalf of any client.”
Again, Sussmann was acquitted of making false statements. Perhaps Durham is arguing that these statements were false, but that they didn’t clear the legal bar for being deliberate falsehoods, or lies.
But Durham elsewhere in the report suggests he still feels the evidence was there and that Sussmann cleared the bar for having made them deliberately.
“Accordingly, Sussmann’s conduct supports the inference that his representations to both the FBI and the CIA that he was not there on behalf of a client reflect attempts to conceal the role of certain clients,” it says, adding: “Such evidence also further supports the inference that Sussmann’s false statements to two different agencies were not a mistake or misunderstanding but, rather, a deliberate effort to conceal the involvement of specific clients in his delivery of data and documents to the FBI and CIA.”
Bennett L. Gershman, a prosecutorial ethics expert at Pace University law school, said making such statements after acquittals is wrong.
“That’s highly improper for a prosecutor after a jury has acquitted you to suggest you lied,” Gershman said. “Prosecutors can’t do that, because that erodes our confidence, our trust in the system. It’s really a very dangerous thing to do.”
Roiphe said that it was “particularly troubling for a prosecutor to voice confidence in an individual’s guilt after he has been acquitted or after a decision not to charge, because the accused does not have the opportunity to defend himself or rebut the allegations.”
Gordon noted that the American Bar Association’s ethics code states that prosecutors should “refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused.”
“The use of the report to allege that Sussman and Danchenko made false statements — the very statements for which they had been charged, and acquitted of the charges — seems to me clearly unethical,” Gordon said.
Former prosecutor Alafair Burke noted that Durham was in an unusual position as a special prosecutor delivering a report that other prosecutors normally wouldn’t.
“In that context, his descriptions of the evidence can be read as an explanation of what he believed ex ante to support his charging decisions,” Burke said. “The risk is that partisans trying to cherry-pick the report for other purposes might read these sections as saying the jurors got it wrong and the defendants are guilty despite the verdicts.”
Durham’s report comes as Trump has in recent years — and even in recent weeks — repeatedly attacked the judicial system. Trump has frequently questioned his and his supporters’ abilities to get fair hearings in heavily Democratic areas like New York City and D.C., and he has regularly invoked the idea of biased judges and juries.
It’s striking enough for a former president to point in that direction; it’s almost unheard of for a powerful prosecutor.
