The Department of Justice (DOJ) rules should change so that FBI agents lose their jobs when they lie to misuse the government’s spying powers in sensitive investigations, Special Counsel John Durham suggested to Congress.
Durham, who recently released a report on his review of the FBI’s handling of the 2016 Trump-Russia investigation, acknowledged that he found conduct that was wrong or “probably criminal,” but would have been difficult to prosecute in a court of law.
“The real difficulty, in my view, is trying to figure out how to hold people accountable for their conduct. It’s not a simple problem to solve,” he said, testifying to the House Judiciary Committee on June 21.
His report documented extensive misconduct, including repeated use of false, debunked, and unverified information, dismissing exculpatory information, failure to interview key witnesses—all pushing forward an investigation of supposed collusion between Russia and the presidential campaign of Donald Trump.
The misconduct, among other ills, resulted in illegal surveillance of Trump campaign aide Carter Page. The FBI snooped through Page’s electronic communications based on a FISA warrant prepared using fabricated allegations pushed into the FBI by operatives financed by the campaign of Trump’s opponent, former Secretary of State Hillary Clinton.
“There were identified, documented, significant failures of a highly sensitive, unique investigation that was undertaken by the FBI,” Durham testified.
“I think the investigation clearly reveals that decisions that were made were made in one direction. If there was something that was inconsistent with the notion that Trump was involved in a ‘well-coordinated conspiracy’ with the Russians and whatnot, that information was largely discarded or ignored and I think, unfortunately, that’s what the facts bear out.”
Yet, as both Republicans and Democrats on the committee pointed out, Durham didn’t pursue charges against the main actors in the Russia investigation, codenamed Crossfire Hurricane.
When questioned on that point, Durham said he was following the DOJ guidelines that say a prosecutor should only bring charges if he’s confident he could prove them beyond reasonable doubt, secure a conviction on trial, and have it upheld on appeal.
“There’s conduct that was probably criminal, but you couldn’t prove it. And that’s true here. It appears in other instances as well,” he said.
Rep. Cliff Bentz (R-Ore.) drilled down on that point:
“You well may have found, and it sounds like you did, troubling violations of law and policy which perhaps would not lead to—and did not of course—to convictions. But it doesn’t make it any less wrong when we have our law enforcement agencies engage in this kind of conduct and I think that’s why you called it troubling. Do I have that right?”
“You have that right,” Durham replied.
“There’s obviously things going wrong we can’t convict people for,” Bentz continued later. “Or at least it doesn’t rise to the level that will warrant that approach. What should we be doing?”
Durham suggested new accountability rules for investigations categorized as “Special Investigative Matters,” such as those involving a political campaign.
“Maybe it’s come time where if an agent is going to sign a FISA application in a Sensitive Investigative Matter, that they not only understand that they’re signing under the penalties of perjury, but if the bureau determines that they intentionally misstated anything that their employment will be terminated,” he said.
“When somebody signs an affidavit, swears to something before a judicial officer, there are consequences if that is untrue. There are criminal penalties, but there sure as heck ought to be other penalties as well.”
As for his own career as a federal prosecutor, Durham suggested he would have sought accountability if he saw FBI agents acting like they did during Crossfire Hurricane.
“There ought to be repercussions. If that ever happened in connection with an agent that I was working with and I knew about, the first thing would be to report it to the court and probably second thing would be to report it to their superiors. The third thing would be [to] ensure that that agent never worked with me again,” he said.
Durham, who resigned from the DOJ in February 2021, concluded the six-hour hearing by saying: “I don’t think that things can go too much further with the view that law enforcement, particularly the FBI or the Department of Justice runs a two-tiered system of justice. The nation can’t stand under those circumstances.”
