John Durham (lawyer)

John Henry Durham (born March 16, 1950) is an American lawyer who served as the United States Attorney for the District of Connecticut (D. Conn.) from 2018 to 2021. By April 2019, he had been assigned to investigate the origins of the Federal Bureau of Investigation (FBI) investigation into Russian interference in the 2016 U.S. elections, and in October 2020 he was appointed special counsel for the Department of Justice on that matter.

He previously served as an assistant U.S. attorney in various positions in D.C. for 35 years. He is known for his role as special prosecutor in the 2005 destruction of interrogation tapes created by the Central Intelligence Agency (CIA), during which he decided not to file any criminal charges related to the destruction of tapes of torture at a CIA facility.

By April 2019, U.S. Attorney General William Barr had tasked Durham with overseeing a review of the origins of the Russia investigation and to determine if intelligence collection involving the Trump campaign was "lawful and appropriate". Barr disclosed in December 2020 that he had elevated Durham's status to special counsel in October, ensuring that his investigation could continue after the Trump administration ended. After 3½ years of investigation and prosecutions, Durham had secured one guilty plea and a probation sentence for a charge unrelated to the origins of the Russia investigation, and two unsuccessful trial prosecutions. Durham alleged at the two trials that the FBI had been deceived by the defendants but did not allege the FBI had acted improperly.

Early life and education

Durham was born in Boston, Massachusetts. He earned a Bachelor of Arts degree from Colgate University in 1972 and a Juris Doctor from the University of Connecticut School of Law in 1975. After graduation, he was a VISTA volunteer for two years (1975–1977) on the Crow Indian Reservation in Montana.

Career

Connecticut state government

After Durham's volunteer work, he became a state prosecutor in Connecticut. From 1977 to 1978, he served as a Deputy Assistant State's Attorney in the Office of the Chief State's Attorney. From 1978 to 1982, Durham served as an Assistant State's Attorney in the New Haven State's Attorney's Office.

Federal government

Following those five years as a state prosecutor, Durham became a federal prosecutor, joining the U.S. Attorney's Office for the District of Connecticut. From 1982 to 1989, he served as an attorney and then supervisor in the New Haven Field Office of the Boston Strike Force in the Justice Department's Organized Crime and Racketeering Section. From 1989 to 1994, he served as Chief of the Office's Criminal Division. From 1994 to 2008, he served as the Deputy U.S. Attorney, and served as the U.S. Attorney in an acting and interim capacity in 1997 and 1998.

In December 2000, Durham revealed secret Federal Bureau of Investigation (FBI) documents that convinced a judge to vacate the 1968 murder convictions of Enrico Tameleo, Joseph Salvati, Peter J. Limone and Louis Greco because they had been framed by the agency. In 2007, the documents helped Salvati, Limone, and the families of the two other men, who had died in prison, win a $101.7 million civil judgment against the government.

In 2008, Durham led an inquiry into allegations that FBI agents and Boston Police had ties with the mafia. He also led a series of high-profile prosecutions in Connecticut against the New England Mafia and corrupt politicians, including former governor John G. Rowland.

From 2008 to 2012, Durham served as the acting U.S. Attorney for the Eastern District of Virginia.

On November 1, 2017, he was nominated by President Donald Trump to serve as U.S. Attorney for Connecticut. On February 16, 2018, his nomination was confirmed by voice vote of the Senate. He was sworn in on February 22, 2018.

Attorney General William Barr secretly appointed Durham Special Counsel on October 19, 2020.

Durham resigned as U.S. Attorney effective February 28, 2021. He was one of 56 remaining Trump-appointed U.S. Attorneys President Joe Biden asked to resign in February 2021. He remains Special Counsel as of September 2021.

Appointments as special investigator

Whitey Bulger case

Amid allegations that FBI informants James "Whitey" Bulger and Stephen "The Rifleman" Flemmi had corrupted their handlers, US Attorney General Janet Reno named Durham special prosecutor in 1999. He oversaw a task force of FBI agents brought in from other offices to investigate the Boston office's handling of informants. In 2002, Durham helped secure the conviction of retired FBI agent John J. Connolly Jr., who was sentenced to 10 years in prison on federal racketeering charges for protecting Bulger and Flemmi from prosecution and warning Bulger to flee just before the gangster's 1995 indictment. Durham's task force also gathered evidence against retired FBI agent H. Paul Rico who was indicted in Oklahoma on state charges that he helped Bulger and Flemmi kill a Tulsa businessman in 1981. Rico died in 2004 before the case went to trial.

CIA interrogation tapes destruction

In 2008, Durham was appointed by Attorney General Michael Mukasey to investigate the destruction of CIA videotapes of detainee interrogations. On November 8, 2010, Durham closed the investigation without recommending any criminal charges be filed. Durham's final report remains secret but was the subject of an unsuccessful lawsuit under the Freedom of Information Act filed by ''The New York Times'' reporter Charlie Savage.

Torture investigation

In August 2009, Attorney General Eric Holder appointed Durham to lead the Justice Department's investigation of the legality of CIA's use of so-called "enhanced interrogation techniques" in the torture of detainees. Durham's mandate was to look at only those interrogations that had gone "beyond the officially sanctioned guidelines", with Holder saying interrogators who had acted in "good faith" based on the guidance found in the Torture Memos issued by the Bush Justice Department were not to be prosecuted. Later in 2009, University of Toledo law professor Benjamin G. Davis attended a conference where former officials of the Bush administration had told conference participants shocking stories, and accounts of illegality on the part of more senior Bush officials. Davis wrote an appeal to former Bush administration officials to take their accounts of illegality directly to Durham. A criminal investigation into the deaths of two detainees, Gul Rahman in Afghanistan and Manadel al-Jamadi in Iraq, was opened in 2011. It was closed in 2012 with no charges filed.

Special counsel to review origins of Trump-Russia investigation

Beginning in 2017, Trump and his allies alleged that the FBI investigation (known as Crossfire Hurricane) of possible contacts between his associates and Russian officials (which led to the Mueller investigation) was a "hoax" or "witch hunt" that was baselessly initiated by his political enemies. In April 2019, Attorney General William Barr announced that he had launched a review of the origins of the FBI's investigation into Russian interference in the 2016 United States elections and it was reported in May that he had assigned Durham to lead it several weeks earlier. Durham was given the authority "to broadly examin the government's collection of intelligence involving the Trump campaign's interactions with Russians," reviewing government documents and requesting voluntary witness statements. In December 2020, Barr revealed to Congress that he had secretly appointed Durham special counsel on October 19. He stayed on in this capacity after he resigned as U.S. Attorney. The U.S. Justice Department's first official expenditure report for the special investigation showed that it had spent $1.5 million from Oct 19, 2020, to March 31, 2021; Durham was not required to report expenditures made before being designated special counsel. By September 2022 the costs of his investigation has climbed to $6.5 million since assuming the role of special counsel.

After 3½ years, Durham indicted three men, one of whom pleaded guilty to a charge unrelated to the origins of the FBI investigation, and was sentenced to probation; the other two men were tried and acquitted. In both trials, Durham alleged the defendants had deceived the FBI, rather than alleging the FBI acted improperly toward Trump.

Investigation into origins of FBI investigation "Crossfire Hurricane"

On October 24, 2019, it was reported that what had been a review of the Russia investigation was now a criminal probe into the matter. The Justice Department could now utilize subpoena power for both witness testimony and documents. Durham also had at his disposal the power to convene a grand jury and file criminal charges, if needed. ''The New York Times'' reported on November 22 that the Justice Department inspector general had made a criminal referral to Durham regarding Kevin Clinesmith, an FBI attorney who had altered an email during the process of acquiring a wiretap warrant renewal on Carter Page, and that referral appeared to be at least part of the reason Durham's investigation was elevated to criminal status. On August 14, 2020, Clinesmith pleaded guilty to a felony violation of altering an email used to maintain Foreign Intelligence Surveillance Act (FISA) warrants. He changed an email to falsely add a claim that Page was "not a source" for the CIA, to a statement by the CIA liaison that Page had a prior operational relationship with the CIA from 2008 to 2013. The Page warrants began in October 2016, months after the FBI's Crossfire Hurricane investigation was opened, so Clinesmith's action and indictment were unrelated to the original basis of Durham's investigation into the origins of the FBI investigation.

The day Justice Department inspector general Michael Horowitz released his report on the 2016 FBI Crossfire Hurricane investigation, which found the investigation was properly predicated and debunked a number of conspiracy theories regarding its origins, Durham issued a statement saying, "we do not agree with some of the report’s conclusions as to predication and how the FBI case was opened." Many observers inside and outside the Justice Department, including the inspector general, expressed surprise that Durham would issue such a statement, as federal investigators typically do not publicly comment on their ongoing investigations. Barr also released a statement challenging the findings of the report. Horowitz later testified to the Senate that prior to release of the report he had asked Durham for any information he had that might change the report's findings, but "none of the discussions changed our findings." ''The Washington Post'' reported that Durham could not provide evidence of any setup by American intelligence.

''The New York Times'' reported in December 2019 that Durham was examining the role of former CIA director John Brennan in assessing Russian interference in 2016, requesting emails, call logs and other documents. Brennan had been a vocal critic of Trump and a target of his accusations of a conspiracy against him. ''The Times'' reported Durham was specifically examining Brennan's views of the Steele dossier and what he said about it to the FBI and other intelligence agencies. Brennan and former Director of National Intelligence James Clapper had testified to Congress that the CIA and other intelligence agencies did not rely on the dossier in preparing the January 2017 intelligence community assessment of Russian interference, and allies of Brennan said he disagreed with the FBI view that the dossier should be given significant weight, as the CIA characterized it as "internet rumor". The ''Times'' reported in February 2020 that Durham was examining whether intelligence community officials, and specifically Brennan, had concealed or manipulated evidence of Russian interference to achieve a desired result. FBI and NSA officials told Durham that his pursuit of this line of inquiry was due to his misunderstanding of how the intelligence community functions. Durham interviewed Brennan for eight hours on August 21, 2020, after which a Brennan advisor said Durham told Brennan he was not a subject or target of a criminal investigation, but rather a witness to events.

''The New York Times'' reported in September 2020 that Durham had also sought documents and interviews regarding how the FBI handled an investigation into the Clinton Foundation. The FBI had investigated the Foundation and other matters related to Hillary Clinton, but had found no basis for prosecution, nor did John Huber, a U.S. attorney appointed by Trump's first attorney general Jeff Sessions, after a two-year investigation ending in January 2020.

On November 2, 2020, the day before the presidential election, ''New York'' magazine reported that:

Prosecution of Michael Sussmann

On September 16, 2021, Durham indicted Michael Sussmann, a partner for the law firm Perkins Coie, alleging he falsely told FBI general counsel James Baker during a September 2016 meeting that he was not representing a client for their discussion. Durham alleged Sussmann was actually representing "a U.S. Technology Industry Executive, a U.S. Internet Company and the Hillary Clinton Presidential Campaign." Sussmann focuses on privacy and cybersecurity law and had approached Baker to discuss what he and others believed to be suspicious communications between computer servers at the Russian Alfa-Bank and the Trump Organization. Sussmann had represented the Democratic National Committee regarding the Russian hacking of its computer network. Sussmann's attorneys have denied he was representing the Clinton campaign. Perkins Coie represented the Clinton presidential campaign, and one of its partners, Marc Elias, commissioned Fusion GPS to conduct opposition research on Trump, which led to the production of the Steele dossier. Sussmann, a former federal prosecutor, characterized the allegations against him as politically motivated and pleaded not guilty the day after his indictment. As with the charge against Clinesmith, the charge against Sussmann was unrelated to the FBI investigation into links between Trump associates and Russian officials, which began in July 2016. Rather than asserting the FBI engaged in wrongdoing, as long alleged by Trump and resulting in Durham's investigation, the Sussmann indictment portrays the bureau as a victim of wrongdoing.

During a 2018 congressional deposition, Baker stated, "I don’t remember ussmannspecifically saying that he was acting on behalf of a particular client," though the Durham investigation found handwritten notes taken by Assistant Director of the FBI Counterintelligence Division Bill Priestap which paraphrase Baker telling him after the meeting that Sussmann "said not doing this for any client." The notes also say "Represents DNC, Clinton Foundation, etc.," though they did not say Sussmann told Baker this during the meeting; Baker had also said during his deposition that he was generally familiar with Sussmann's work, as they were friends. The Priestap notes constitute hearsay and it was not clear if they would be admissible in court as evidence under the hearsay rule.

''The New York Times'' reported Durham had records showing Sussmann had billed the Clinton campaign for certain hours he spent working on the Alfa-Bank matter. His attorneys said he did so because he needed to demonstrate internally that he was engaged in billable work, though the work involved consulting with Elias, and the campaign paid a flat monthly fee to Perkins Coie but was not actually charged for those billed hours.

In a December 2021 court filing, Sussmann's attorneys presented portions of two documents provided to them by Durham days earlier which they asserted undermined the indictment. One document was a summary of an interview Durham's investigators conducted with Baker in June 2020 in which he did not say that Sussmann told him he was not there on behalf of any client, but rather that Baker had assumed it and that the issue never came up. A second document was a June 2019 Justice Department inspector general interview with Baker in which he said the Sussmann meeting "related to strange interactions that some number of people that were his clients, who were, he described as I recall it, sort of cybersecurity experts, had found." ''The New York Times'' reported that the narrow charge against Sussmann was contained in a 27-page indictment that elaborated on activities of cybersecurity researchers who were not charged, including what their attorneys asserted were selected email excerpts that falsely portrayed them as not actually believing their claims. Trump and his supporters seized on that information to assert the Alfa-Bank matter was a hoax devised by Clinton supporters and so the Trump-Russia investigation had been unjustified. Sussmann's attorneys told the court that the new evidence "underscores the baseless and unprecedented nature of this indictment" and asked that his trial date be moved from July to May 2022. A Durham prosecutor later asserted that subsequent to his 2019 and 2020 interviews, Baker "affirmed and then re-affirmed his now-clear recollection of the defendant’s false statement" after refreshing his memory with contemporaneous or near-contemporaneous notes.

In a February 2022 court motion related to Sussmann's prosecution, Durham alleged that Sussmann associate Rodney Joffe and his associates had "exploited" capabilities his company had through a pending cybersecurity contract with the Executive Office of the President (EOP) to acquire nonpublic government Domain Name System (DNS) and other data traffic "for the purpose of gathering derogatory information about Donald Trump." Joffe was not charged and his attorney did not immediately comment. After Sussmann's September 2021 indictment, ''The New York Times'' reported that in addition to analyzing suspicious communications involving a Trump server, Sussmann and analysts he worked with became aware of data from a YotaPhone — a Russian-made smartphone rarely used in the United States — that had accessed networks serving the White House, Trump Tower and a Michigan hospital company, Spectrum Health. Like the Alfa-Bank server, a Spectrum Health server also communicated with the Trump Organization server. Sussmann notified CIA counterintelligence of the findings in February 2017, but it was not known if they were investigated. Durham alleged in his February 2022 court motion that Sussmann had claimed his information "demonstrated that Trump and/or his associates were using supposedly rare, Russian-made wireless phones in the vicinity of the White House and other locations," but Durham said he found no evidence to support that. Sussmann's attorneys responded that Durham knew Sussmann had not made such a claim to the CIA. Durham alleged Sussmann's data showed a Russian phone provider connection involving the EOP "during the Obama administration and years before Trump took office." Attorneys for an analyst who examined the YotaPhone data said researchers were investigating malware in the White House; a spokesman for Joffe said his client had lawful access under a contract to analyze White House DNS data for potential security threats. The spokesman asserted Joffe's work was in response to hacks of the EOP in 2015 and of the DNC in 2016, as well as YotaPhone queries in proximity to the EOP and the Trump campaign, that raised "serious and legitimate national security concerns about Russian attempts to infiltrate the 2016 election" that was shared with the CIA. Durham asserted that Sussmann bringing his information to the CIA was part of a broader effort to raise the intelligence community's suspicions of Trump's connections to Russia shortly after he took office. Durham did not allege that any eavesdropping of Trump communications content occurred, nor did he assert the Clinton campaign was involved or that the alleged DNS monitoring activity was unlawful or occurred after Trump took office.

Durham's filing triggered a furor among right-wing media outlets, including misinformation about what Durham had alleged, which was challenged by other outlets and lawyers for the involved parties. '' Fox News'' falsely reported that Durham claimed Hillary Clinton's campaign had paid a technology company to "infiltrate" White House and Trump Tower servers; that narrative actually came from Trump ally Kash Patel. The '' Washington Examiner'' claimed that this all meant there had been spying on Trump's White House office. Charlie Savage of ''The New York Times'' disputed these claims and explained that "Mr. Durham's filing never used the word 'infiltrate.' And it never claimed that Mr. Joffe's company was being paid by the Clinton campaign." Sussmann's attorneys asserted Durham's motion contained falsehoods "intended to further politicize this case, inflame media coverage, and taint the jury pool" as part of a pattern of Durham's behavior since Sussmann's indictment. Durham objected to a motion by Sussmann's attorneys to have the "factual background" section struck from Durham's motion, stating that "If third parties or members of the media have overstated, understated, or otherwise misinterpreted facts contained in the Government’s Motion, that does not in any way undermine the valid reasons for the Government’s inclusion of this information."

Hillary Clinton responded to the right-wing media attacks by hinting at defamation: "It's funny the more trouble Trump gets into the wilder the charges and conspiracy theories about me seem to get. Fox leads the charge with accusations against me, counting on their audience to fall for it again. As an aside, they're getting awfully close to actual malice in their attacks."

Sussmann's attorneys also explained, "Although the Special Counsel implies that in Mr. Sussmann's February 9, 2017 meeting, he provided Agency-2 with (Executive Office of the President) data from after Mr. Trump took office, the Special Counsel is well aware that the data provided to Agency-2 pertained only to the period of time before Mr. Trump took office, when Barack Obama was President," a time period (2015 and 2016) where much investigation of Russian hacks of Democratic Party and White House networks had occurred: "...cybersecurity researchers were 'deeply concerned' to find data suggesting Russian-made YotaPhones were in proximity to the Trump campaign and the White House, so 'prepared a report of their findings, which was subsequently shared with the C.I.A.'"

During a March 2022 court hearing, presiding judge Casey Cooper remarked that Durham's February motion relating to Joffe created a "dustup" that "strikes me as a sideshow in many respects," adding "I don't know why the information is in there." He said the motion, which was ostensibly about a potential conflict of interest matter, could have been quickly resolved in a brief hearing. Cooper then asked Sussmann if he would waive the conflict of interest issue, which Sussmann did, leading Cooper to say, "I didn't need any of that ancillary information to do that." Cooper declined to strike the ancillary information as Sussmann's attorneys had requested, saying he would not ascribe any motives to Durham's motion.

In an April 2022 flurry of late-night court filings by the prosecution and defense prior to the trial beginning the next month, Durham presented a text message Sussmann sent to Baker the night before their meeting which read, "I’m coming on my own — not on behalf of a client or company — want to help the bureau," which appeared to support Durham's allegation that Sussmann had lied to investigators. ''The New York Times'' reported that Durham's filings suggested he might introduce at trial the Steele dossier in an effort to suggest a broader conspiracy between Sussmann and the Clinton campaign. Durham's indictment did not mention the dossier, and Sussmann's attorneys argued Durham "should not be permitted to turn Mr. Sussmann’s trial on a narrow false statement charge into a circus full of sideshows that will only fuel partisan fervor." Durham argued that Sussmann's team should not be allowed at trial to suggest any political motivation behind the prosecution. Sussmann's attorneys asked judge Cooper to dismiss the case if Joffe were not granted immunity to provide "critical exculpatory testimony" for Sussmann.

Nine days before the trial, Cooper ruled Durham could not present an argument to the jury that Sussmann was part of a broad "joint venture" involving the Clinton campaign, Fusion GPS, Democratic operatives and various technology researchers. Cooper said allowing such an argument would amount to a "time-consuming and largely unnecessary mini-trial," considering Sussmann had been narrowly charged with lying to investigators rather than conspiracy. Cooper ruled prosecutors could question witnesses about the scope of the DNS analysis, but would not be allowed to introduce evidence that Joffe allegedly had doubts about the accuracy of some of the data. The judge said he was unlikely to allow evidence Joffe may have breached the terms of his employer's government contract, saying it was "at best, only marginally probative of ussmann'ssupposed motive to lie to the FBI." Cooper did not grant Joffe immunity for his testimony, but said the limits he placed on Durham's lines of questioning might ease his concerns that Joffe could incriminate himself if he were to testify.

Sussmann was acquitted on May 31, 2022.

Alfa-Bank investigation

CNN reported later in September that the Durham grand jury had subpoenaed documents from Perkins Coie. CNN had viewed emails between Sussmann and others who were researching the server communications, including Joffe, showing that Durham's indictment of Sussmann cited only portions of the emails. The indictment included an unidentified researcher stating in an email, "The only thing that drive us at this point is that we just do not like rump" CNN's review of other emails indicated the researchers later broadened the scope of their examination for presentation to the FBI. Joffe's attorney asserted the indictment contained cherry-picked information to misrepresent what had transpired. Defense lawyers for the scientists who researched the internet traffic between the Trump Organization and Alfa-Bank said that Durham's indictment is misleading and that their clients stand by their findings.

Prosecution of Igor Danchenko

In November 2021, Washington-based Russian analyst Igor Danchenko was arrested and indicted on five counts of allegedly having lied to the FBI about the sources of information he contributed to the Steele dossier. Danchenko pleaded not guilty and was released on bail.

In an order at the beginning of October 2022, the court "excluded from the trial large amounts of information that Mr. Durham had wanted to showcase" as not being evidence for the charges of making false statement. Danchenko was tried on four counts of lying to the FBI about one of his sources and, on October 18, acquitted by the jury on all four. The week before, the trial judge had acquitted Danchenko of a fifth count, stating that " e prosecution had failed to produce sufficient evidence for that charge to even go to the jury."

Awards and accolades

In 2011, Durham was included on '' The New Republic's'' list of Washington's most powerful, least famous people.

In 2004, Durham was decorated with the Attorney General's Award for Exceptional Service and, in 2012, with the Attorney General's Award for Distinguished Service.

Personal life

According to CNN, Durham is "press-shy" and is known for his tendency to avoid the media. United States Attorney Deirdre Daly once described him as "tireless, fair and aggressive" while United States Senator Chris Murphy characterized him as "tough-nosed ... apolitical and serious".

See also

* Mueller report
* Timeline of Russian interference in the 2016 United States elections
*Timeline of investigations into Donald Trump and Russia (2019)
*Timeline of investigations into Donald Trump and Russia (2020–2021)
* Trump–Ukraine scandal

References

External links

Biography at U.S. Department of Justice

{{DEFAULTSORT:Durham, John Henry
1950 births
Colgate University alumni
Lawyers from Boston
Living people
Trump administration personnel
United States Attorneys for the District of Connecticut
Connecticut Republicans
Massachusetts Republicans
United States Department of Justice lawyers
University of Connecticut School of Law alumni
Special prosecutors