“Much ado about nothing.”

May 16, 2023

          Special counsel John Durham released his report on the FBI’s investigation of connections between Trump's 2016 campaign and Russia. Durham’s remit was to “investigate the investigators,”— the FBI agents, DOJ attorneys, and Mueller staff members who investigated serious, credible, and (ultimately) proven allegations of Russian interference in the 2016 election facilitated by communications with the Trump campaign.

          Durham was appointed by the worst Attorney General in US history, Bill Barr, who expected Durham to exact vengeance on Trump's perceived enemies. Durham labored for four years to prove that Trump's investigators acted criminally—or at least wrongfully—in investigating allegations of Russian interference in the 2016 election.

          Durham personally traveled across the globe to interview witnesses. On occasion, Durham was accompanied by Bill Barr. Durham’s investigation cost $6.5 million and lasted twice as long as the Mueller investigation. (The Mueller investigation was effectively free because Mueller recovered $48 million for the US—$16 million more than the cost of the investigation.)

          Durham prosecuted two cases arising from his investigation. Both trials ended in acquittals for the defendants. After a jury acquitted one of the defendants, a juror lectured Durham for wasting the jury’s time. (In contrast, special counsel Robert Mueller filed charges against 34 individuals and 3 companies, obtained 8 guilty pleas, and obtained the conviction of Paul Manafort after a jury trial.)

          Durham’s report was transmitted by Attorney General Merrick Garland to Congress on Monday. Apart from Durham’s whining about the FBI’s (alleged) differential treatment of Hillary Clinton and Donald Trump, Durham’s report revealed nothing of significance that was not already in the public record. (It is true that the FBI treated Hillary Clinton differentially: It disclosed details of its investigation into Secretary Clinton ten days before the 2016 election and leaked misleading details to the NYTimes, but kept its investigation of Trump's connections to Russia confidential until after the election.)

          The most effective way to measure whether Durham’s report uncovered any wrongdoing at the FBI is to examine what recommendations for reform were included in Durham’s report. Here is the answer:

          Durham’s report made no recommendations for reform at the FBI. Zilch. Nada. Nothing.

          In other words, Durham’s investigation was “Much ado about nothing.” See generally, Talking Points Memo, Special Counsel John Durham Releases Final Report. The TPM article includes an embedded copy of the full report.

          Of course, the point of Durham’s investigation was not to uncover the truth or discover new facts. Neither Durham nor Barr expected to uncover wrongdoing. Instead, the point of Durham’s investigation was to provide fuel to the right-wing blogosphere during Trump's 2020 campaign (and beyond). In that, Durham succeeded admirably by sustaining a sham investigation for nearly four years.

          The Trump model of sham investigations to provide fodder for right-wing media is a lesson that the GOP has internalized and adopted as part of its playbook. As noted in yesterday’s newsletter, GOP Chair of the House Oversight Committee James Comer continues to tease “blockbuster” announcements about alleged criminal conduct by President Biden, only to rehash tired conspiracy theories about Hunter Biden that have no connection to Joe Biden.

          James Comer is quickly becoming a laughingstock, especially after he claimed over the weekend that he “lost” a confidential informant who could allegedly prove serious wrongdoing by Joe Biden. Likewise, John Durham trashed his hard-earned reputation as a serious career prosecutor by treating baseless conspiracy theories with dignity and seriousness they did not deserve.

          What lesson should we take from the Durham bellyflop? Like the Fox News’ “countdown to the apocalypse” that turned out to be a “nothing burger,” the Durham investigation was a public relations sham and an effort to mess with our minds. Do you recall the collective anxiety that gripped Democrats when Republicans gained control of the House? I do. Readers wrote to me in a panic that the GOP investigations in the House would be a “vengeance tour” that would dominate the second half of Biden’s term in office.

          Per the NYTimes in January 2022, Here Are All the Ways Republicans Plan to Investigate Biden:

House Republicans are preparing a cascade of investigations, some overlapping, into the Biden administration and its policies. Right-wing lawmakers have said the ultimate goal is to impeach the president.

          We should not fear investigations into conspiracy theories. Remember the ten hearings into the attack on the US diplomatic compound in Benghazi? None of them found any wrongdoing by Secretary of State Hillary Clinton (or anyone else, for that matter). See PBS News Hour, Two years, $7 million, 800 pages later, GOP Benghazi report lands with a thud. Add John Durham’s investigation to the ignominious list that includes the Benghazi hearings, Jim Jordan’s “weaponization committee” hearings, and James Comers’ Oversight hearings into Joe Biden.

Coda.

          The Durham investigation succeeded in one regard: The Fox News website is proclaiming the Durham investigation was a major victory. See Fox News, FBI responds to scathing Durham report on Trump-Russia probe, touts 'dozens of corrective actions'. The “dozens of corrective actions” referred to by the FBI relate to corrective actions that the FBI implemented years ago in response to an Inspector General’s report—not in response to the Durham investigation.

Fox is hyping the following conclusion from Durham’s report:

 [S]enior FBI personnel displayed a serious lack of analytical rigor towards the information that they received, especially information received from politically-affiliated persons and entities.

          Really? Four years and Durham’s biggest complaint is a “serious lack of analytical rigor” by some FBI officials? That should keep Fox hosts talking about the Durham report for several weeks, at least. Mission accomplished, John Durham!

The debt ceiling is unconstitutional.

          You have undoubtedly heard that there is growing sentiment that the debt ceiling is unconstitutional. Most discussion revolves around the 14^th Amendment’s statement that the debts of the U.S. “shall not be questioned.” That ground seems sufficient to sustain Biden’s refusal to adhere to the debt ceiling.

          Robert Hockett of Cornell University has written a superb article in Forbes explaining the six reasons why the debt ceiling is unconstitutional. See Forbes, Six Legal Reasons the Federal Budget Is Its Own ‘Debt Ceiling’ - and ‘Floor’.

          Although the title of the article is a bit opaque, the article is cogent and compelling. If you are interested in this subject at all, you owe it to yourself to read Hockett’s article. After you have finished, you will understand that when Congress and the President pass a budget, that budget becomes the final and controlling word on what the President must do in spending money appropriated in the budget—debt ceiling be damned!

          Thanks to reader Andy B. for calling my attention to this article!

A shocking civil complaint filed against Rudy Giuliani by former employee.

          A former employee of Rudy Giuliani has filed a jaw-dropping complaint alleging that Giuliani offered to “sell” presidential pardons for $2 million (with proceeds to be split with Trump), offered to pay her for sex, urged her to lie to the FBI, and bragged about hiding income from the IRS. Fair warning, the complaint includes lots of salacious details about Giuliani’s sex life (real and fantasy) that are gross. If you can bear to read about it, see Above the Law, Rudy Giuliani A Gross, Drunken, Sex Pest? No, That Can't Be Right!.

The complaint is here: Noelle Dunphy v Rudolph Giuliani.

          There may be more to this story than criminal liability for Giuliani and gross details about Giuliani’s debauchery. Noelle Dunphy claims to have multiple audio recordings of many of Giuliani’s statements. Moreover, she has possession of 22,000 emails between Giuliani and a veritable who’s who of the Trump administration. Several state and federal agencies have asked Giuliani to produce his emails and he has claimed alternatively that (a) he has done so and (b) he can’t do so because he no longer has access to them.

          Noelle Dunphy’s attorneys have likely already heard from Jack Smith, Letitia James, Alvin Bragg, and Fani Willis. The person who may have the most to lose in the lawsuit is Donald Trump.

The Supreme Court grants review of racial gerrymandering case.

Ugh. The Supreme Court seems intent on weakening laws prohibiting racial gerrymandering. See Ian Millhiser in Vox, A new Supreme Court case threatens to make gerrymandering even worse, in Alexander v. NAACP. (“South Carolina’s lawyers propose a rule that could make it virtually impossible to challenge racial gerrymanders.”)

          As explained by Millhiser,

This case, known as Alexander v. South Carolina Conference of the NAACP, tees up the question of whether state lawmakers may use race to identify Democratic voters, and then draw district lines intended to diminish these voters’ ability to elect a candidate of their choice.

Should the Supreme Court permit this kind of gerrymandering, it would likely have profound consequences for voting rights throughout the nation — potentially shutting down one of the few remaining ways to challenge a gerrymandered map that violates the US Constitution.

          The reactionary majority on the Court seems hell-bent on neutering the protections of the Civil War amendments to the Constitution by eliminating race as a consideration in evaluating gerrymandering. How that effort squares with the “originalist” approach to the Constitution defies logic.

Join a “Tent Talk” on Tuesday with Ballotpedia.

          A reader who is a supporter of BigTent USA has invited readers of this newsletter to an event on Tuesday, May 16 at 12:00 Eastern with the leaders of Ballotpedia to discuss citizen-led legislation (ballot measures), why they are important, and ballot measure trends across the nation. Register here: Tent Talk: Ballotpedia - BigTent USA

          For those of you who do not regularly consult Ballotpedia, it is the definitive source on elections in the US. I consult Ballotpedia regularly to help ensure the accuracy of this newsletter, and I donate to Ballotpedia to help keep it available to the public for free.

          The event on Tuesday is free, and is sponsored by BigTent USA which describes itself as follows:

It's Not Partisan.
It's Democracy.

Vote with your values

Welcome to BigTentUSA – an inclusive and collaborative “Big Tent” where women learn together what it means to be a pro-democracy voter, what to look for in identifying pro-democracy candidates, and how to talk directly to the people in our lives about becoming informed and active citizens. 

          This event seems like an interesting introduction to Ballotpedia and BigTentUSA while learning about an issue of increasing importance—citizen-led legislation through ballot initiatives. Check it out!

Opportunity to meet with readers in Washington, D.C. on Friday, May 19^th.

          My Managing Editor and I will be in D.C. on Friday, May 19^th in the DuPont Circle area in the afternoon. If you are in the D.C. area and want to meet, send me an email with the subject line “Meeting in D.C.” and we will respond with details. The tentative time is 2:00 PM. Location will be determined based on the size of the response from readers. If you have suggestions for an appropriate gathering place, let me know!

          We have an appointment at the White House on Friday morning but should be free by 2:00 PM. (Don’t get the wrong idea! We will be on a public tour of the White House—in the cheap seats!)

Concluding Thoughts.

          The Durham debacle illustrates a maddening asymmetry in how Republicans and Democrats govern. When Bill Barr was attorney general, Durham spoke (and traveled) with Barr when conducting the investigation. That coziness had the appearance (and likely reality) of impropriety. A special counsel is appointed to ensure independence from the Attorney General. (I acknowledge that Durham spent some time investigating the investigators before Durham was designated special counsel.) Caveats notwithstanding, Barr’s close supervision and travel with Durham were unseemly at best, corrupt at worst.

          Under Attorney General Merrick Garland, John Durham was left alone to work independently. Garland did not change a comma in Durham’s report and offered no commentary when transmitting to Congress. In other words, Garland allowed Durham to operate with the independence befitting a special counsel.

          Are Democrats fools for sticking to the letter and spirit of the law? No. They should do both. But . . . there is an aggressiveness in the way that the GOP approaches politics that is missing from Democratic administrations. Where that line should be drawn differs in each situation. But surely there was some room for Garland to make a comment on Durham’s work that complied with the letter and spirit of the law but stated—factually and truthfully—that Durham found no wrongdoing in the investigation by the FBI or Robert Mueller. Indeed, Garland could have made that point by quoting from Durham’s report.

          Like you, I am frustrated by the unnecessary passivity in the DOJ. A few well-placed phrases from Garland could have helped the media better understand and report on Durham’s conclusions. Apart from expressing my frustration, I have little more to offer. Sometimes it is enough to commiserate. In other words, I feel your pain.

          Talk to you tomorrow!