A person familiar with the matter stunningly confirmed the following on Thursday: the U.S. Department of Justice (DOJ), the nation’s highest law enforcement organization, is now criminally investigating whether former special counsel Robert Mueller‘s Russia probe was based on improper activity by the Federal Bureau of Investigation (FBI). Legal experts were astonished.
What was an administrative review is now a criminal probe. It will be carried out by U.S. Attorney for the District of Connecticut John Durham, a prosecutor who made his name investigating the mafia and looking into torture carried out by the Central Intelligence Agency (CIA). That landmark torture investigation, however, turned out to be a bit of a dud–no charges were ever filed even though the CIA’s use of torture during the George W. Bush administration was well-documented.
Criminal defense attorney and legal commentator Tor Ekeland slammed the move as a brazen violation of constitutional norms.
“DOJ’s criminal investigation of the Russia investigation is precisely what the Framers feared would happen if the federal government was given a general federal police power, and why the Framers kept that power out of the original Constitution,” he told Law&Crime. “Because they feared it would be used for political prosecutions, of which the current example is but one of a long line going back to DOJ’s inception.”
Ekeland, a computer expert with a federally-focused practice, has long been wary of show trials and investigations. He continued:
This is nothing new except it’s a particularly blatant example of a politically motivated criminal investigation, and as such is dangerous as it is brazen. It’s indicative of a high level of cynical erosion of the respect for the rule of law. A respect that our system requires to avoid devolution into the ruthless power conflicts of mere anarchy. What you don’t see anywhere in the press on this subject is the answer to the basic question: what criminal statute are they investigating the violation of? The fact that you can’t name one demonstrates that this is political theater and has nothing to do with justice.
David Laufman is former head of the Counterintelligence and Export Control Section of the DOJ. During a Thursday evening appearance on MSNBC, Laufman blasted the Durham investigation into the Russia probe as “born in political taint.”
Elizabeth de la Vega is a former federal prosecutor who spent 21 years as a member of the Organized Crime Strike Force and as chief of the San Jose branch of the U.S. Attorney’s Office for the Northern District of California.
In a series of tweets on Thursday night, she rubbished the idea that Durham’s investigation would uncover anything useful aside from window dressing for President Donald Trump’s oft-repeated claims that the Russiagate inquiry was a “witch hunt.”
“Pre-2020, Barr/Durham will at least issue a ‘report’ attacking U.S. intel[ligence] the idea that [the Russian Federation] attacked [the American electoral system] in 2016,” she commented.
De la Vega also called on Democrats in the House of Representatives to immediately show their work on impeachment by having their investigators discuss relevant findings. “Don’t wait,” she said. “Make a public record to head off this bogus crim[inal] investigation.”
The former prosecutor also had harsh words for Durham himself:
With all due respect to people who say otherwise, there is no reason to trust John Durham who buried Bush Admin[istration] torture crimes [and] has signed on to this obviously corrupt endeavor. And he doesn’t “need” a grand jury for anything. Spare us this crap about institutionalists. Please.
Harvard Law Professor Laurence Tribe told Law&Crime that he also has his doubts about the legitimacy of the probe, suggesting that it could be a ploy to distract from impeachment.
“Durham’s reputation is very solid, but then so was Barr‘s before he came into the Trump orbit. In any event, it’s hard for me to imagine what federal crime Barr purports to be investigating,” he said. “It looks very much like this is simply a way of giving President Trump some talking points about the Russia probe being under criminal investigation.”
Tribe said that even if nothing emerges from the grand jury that Attorney General William Barr looks likely to convene, that “can drag out long enough to distract some people from the impeachment process.”
“I certainly wouldn’t put it past Barr to go along with such a scheme, though it certainly would disappoint me to learn that Durham is in on it,” he said.
The Durham investigation stands to drastically rearrange political sleeping arrangements. For years, liberal critics of President Trump have attached themselves to the intelligence community like a person in distress near a somewhat viable life raft. Durham’s investigation the CIA, however, suggests a relatively independent prosecutorial streak that other legal experts are comfortable with for now–despite the above misgivings about his actual record and results.
National security attorney Bradley P. Moss counseled caution in response to the Durham investigation–saying it was a bit too early to establish just what exactly was going to be investigated at all.
“It remains to be seen what is the actual premise of the transition of the Durham probe into a criminal investigation,” Moss told Law&Crime. “This may have been simply a procedural step designed to further flesh out the record with the increased authorities Mr. Durham would have with an impaneled grand jury, or it may indicate that evidence has been uncovered that might ultimately require criminal indictments. No one knows for sure yet and most people are just spinning their wheels in the interim.”
Adjunct Associate Professor of Law at Tulane Law School, attorney and CNN legal analyst Ross Garber also advised a wait-and-see approach.
“There’s already widespread condemnation of this,” he tweeted. “But I’m keeping an open mind. John Durham is a non-partisan career prosecutor. And he generally doesn’t overreach on charging decisions. If there’s nothing there, the review will help close the chapter.”
[image via Chip Somodevilla/Getty Images]