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Bill Barr picked a "Mueller-like" prosecutor to investigate the Mueller probe

“He has no concern for politics or public opinion,” said Donald Stern, a former U.S. Attorney for Massachusetts.

by Greg Walters
May 17 2019, 2:39pm

WASHINGTON — The last time John Durham led a high-profile probe of the FBI, the career prosecutor from Connecticut earned a reputation as a doggedly independent, non-political investigator.

This time, the question will be whether he can keep it.

Durham, 69, has stepped into one of the most politically explosive jobs in Trump’s America: reviewing the origins of the Russia investigation, an initiative that’s already garnered deep skepticism from former prosecutors and Justice Department officials who say it has the appearance of a politically-motivated assault on President Trump’s enemies.

Durham is no stranger to investigating the FBI, having led a bombshell probe of its operations in Boston that helped put agents in jail, and let wrongfully-convicted men out of prison. But the questionable nature of this new probe into the Russia investigation doesn’t entirely square with Durham’s reputation as a prosecutor, according to roughly a half-dozen people who know Durham and who trust him to keep politics out of his investigation.

“He has no concern for politics or public opinion,” said Donald Stern, the former U.S. Attorney for Massachusetts who drafted Durham to lead a strike force that uncovered corrupt links between the FBI and mobsters in Boston two decades ago. “He’s Mueller-like.”

Even Durham’s former adversaries only have glowing things to say about him.

“As much as it pains me to say this, John is one of the most professional and honest prosecutors I’ve ever had to deal with,” said Anthony Cardinale, a Boston attorney who once defended alleged Italian-American mobsters from murder charges brought by Durham. “The reasons for this investigation look like horseshit to me, to use the legal term. But John wouldn’t be a stooge for anybody.”

Playing to Trump's base

Trump Russia investigation
President Donald Trump stands with Attorney General William Barr during the 38th Annual National Peace Officers' Memorial Service at the U.S. Capitol, Wednesday, May 15, 2019, in Washington. (AP Photo/Evan Vucci)

Durham once earned the honorific of being among “Washington’s Most Powerful, Least Famous People.” That second part’s likely to change since Attorney General William Barr put him in charge of reviewing the origins of the Russia investigation, in apparent fulfillment of Trump’s call to “investigate the investigators.”

He’s poised to immediately face political pressure from all sides, and career prosecutors called the very assignment suspect.

“It’s frightening, and it smacks of misuse of the Department of Justice for political purposes,” said Patrick Cotter, a former prosecutor from the Eastern District of New York who helped jail the mafia boss John Gotti. “I think the Justice Department is being used to play to the Trump base, and I think that’s a very troubling development.”

Durham’s assignment appears to overlap with an investigation by the DOJ’s Inspector General, Michael Horowitz, who’s examining how law enforcement officials obtained a warrant to wiretap former Trump advisor Carter Page in October 2016. The U.S. Attorney for Utah, John Huber, was also leading a related probe.

“It’s frightening, and it smacks of misuse of the Department of Justice for political purposes.”

Barr has said the IG investigation should be finished up in May or June. The New York Times reported that Huber has largely handed over his work to Durham. The apparent overlap has raised questions about why Durham’s review is needed at all.

“Why would you not wait for the inspector general?” asked Rebecca Roiphe, a former prosecutor and expert on prosecutorial ethics at New York Law School. “If not, they seem to be making some kind of political statement.”

Durham’s “review” of the Russia probe is not yet a full-fledged criminal investigation, according to The New York Times, which means that it lacks the full range of law-enforcement tools, such as the power to subpoena documents or compel witnesses to testify.

It remains unclear exactly when Durham, who remains the top federal prosecutor in Connecticut, received his new assignment. The Department of Justice didn’t return a request for comment, and the U.S. Attorney’s office in Connecticut declined to say anything more than to confirm Durham still works there.

“Why would you not wait for the inspector general?”

But Durham is known to have been working quietly on a related case at least since last October, when he led a criminal leak investigation against the FBI’s former top lawyer, Jim Baker, according to Congressional transcripts.

Baker was one of the top officials present at the inception of the FBI’s probe of Trump’s links to Russia in mid-2016, and has recently begun speaking out publicly in defense of the bureau’s decisions.

Baker, who has not been charged, told journalist Michael Isikoff this week that he welcomes Durham’s “scrutiny” of the FBI’s work, and looks forward to “cooperating and helping.”

Trump’s supporters on Capitol Hill have seized upon private text messages sent among FBI investigators expressing disdain for Trump as evidence that the probe was launched to derail his candidacy.

Mueller’s final report, however, says Trump campaign aide George Papadapolous triggered the probe in May 2016 after telling an Australian diplomat that the campaign had “received indications from the Russian government that it could assist the campaign through the anonymous release of information damaging to candidate [Hillary] Clinton.”

The early FBI probe eventually transformed into Special Counsel Robert Mueller’s investigation, which Trump has railed against while calling for an investigation into the probe’s origins.

Trump has claimed he didn’t know about Durham’s role, however. And Barr famously demurred when asked by Senator Kamala Harris last month whether anyone at the White House had asked or suggested that he open up any investigations.

“I’m trying to grapple with the word, ‘suggest,’” Barr said, shaking his head and looking away.

In an interview with The Wall Street Journal published Friday, Barr said the review is focused primarily on U.S. intelligence gathering during the period before the FBI opened its inquiry in July 2016. He added that the review could lead to new rules for counterintelligence investigations of political campaigns. But he declined to give more details.

“Government power was used to spy on American citizens,” Barr told the WSJ, re-upping on his controversial use of the term “spying” to describe scrutiny of Trump’s links to Russia. “I can’t imagine any world where we wouldn’t take a look and make sure that was done properly.”

Mueller 2.0

In Durham, Barr seems to have tapped a man unlikely to echo Trump’s view that Mueller’s investigation was a “witch hunt.”

“I firmly believe that the motivation to appoint John Durham to investigate the alleged deep state is incredibly impure and suspect,” said Gene Rossi, a former prosecutor from Virginia who crossed paths with Durham back when the man from Connecticut was investigating the CIA a decade ago. “And yet it almost looks like Barr may be counteracting the direction of the White House by picking someone who is simply not going to be a political hack.”

For evidence, Durham’s acquaintances pointed to his lengthy history of investigating alleged wrongdoing in the FBI and CIA for both Republican and Democratic administrations.

Durham built his reputation over four decades with the DOJ, including high-profile investigations into the FBI and CIA under both Democratic and Republican administrations.

In 1999, then-Attorney General Janet Reno dispatched him to Boston to lead a strike force aimed at sorting through FBI agents’ convoluted relationship with mobster informants.

“[I]t almost looks like Barr may be counteracting the direction of the White House by picking someone who is simply not going to be a political hack.”

Durham’s work eventually led to the conviction of FBI agent John Connolly, a childhood friend of notorious Boston mobster James “Whitey” Bulger. Connolly was first convicted of warning Bulger of his impending arrest, prompting the gangster to flee, and later of murder after he tipped off the gang about an informant.

Stern, Boston’s U.S. Attorney at the time, said he asked Reno to send Durham in from Connecticut because he needed someone from outside Boston’s scandal-plagued home team. He said Durham handled the tense local politics with deft instincts.

“There was deep hostility between the state police and the FBI in general,” said Stern.

While he was there, Durham helped prove that four men had been wrongfully convicted of a mob murder three decads earlier, by digging up five secret FBI files that had never been turned over to the prosecution.

What became known as “the Durham memos” revealed that the government’s key witness lied when he accused the four men of killing a low-level mobster. Although two of the convicts had died in prison, the other two were released, and won a $101 million settlement from the federal government in what was reported at the time to be the largest wrongful conviction lawsuit ever.

Despite this track record of finding wrongdoing at the FBI, Stern said he doesn’t detect any bias against the bureau in Durham.

“My sense is that he has great respect for the FBI, having worked with them for a long time,” Stern said. “But if asked to take a hard look at how they operated in a certain circumstance, he’ll do it without fear or favor.”

Durham shares other similarities with Mueller, including an aversion to the press. In fact, during a rare public speaking event last year, Durham appeared to praise Mueller’s integrity.

Durham said prosecutors should maintain a stony silence about their work, and only bring charges that they believe they can prove beyond a reasonable doubt and sustain on appeal — and suggested he thought Mueller was playing by those rules in his Russia investigation.

“When, on the nightly news, you’re watching what Bob Mueller’s doing and so forth, there’s a great desire for that information,” Durham said, according to an audio recording of his remarks. “But however that investigation turns out, whatever Mr. Mueller and his colleagues conclude, if it’s to the dissatisfaction of the public, it may very well be because Bob Mueller is an honorable person, an honorable man, and applies those principles of law as he’s been taught, and as he has taught to others.”

Cover: In this April 25, 2006 file photo, John Durham speaks to reporters on the steps of U.S. District Court in New Haven, Conn. (AP Photo/Bob Child, File)