Notes on the Durham Report: A Reading Diary

On Monday, the Justice Department released the Durham Report—the long-awaited account by Special Counsel John Durham of his investigation into the conduct of the 2016 Russia investigation. Yesterday, I read the executive summary and formed some initial impressions. Starting Wednesday, however, I am reading the entire document carefully, starting at the beginning. Much as I did when I wrote a reading diary of the Mueller Report back in 2019,  I will be writing up my thoughts as I go in this post. There will be no cohesive argument to this journal. It will simply be a collection of my observations, questions, and thoughts as I go through the document. It will get long. I will mostly not attempt to summarize the underlying document, merely to reflect on it, but I will organize this post by document section, so that you can read it as a commentary on the actual text. I will update the post as I read. I hope people find it useful.

Introduction and Executive Summary

III. APPLICABLE LAWS AND DEPARTMENT AND FBI POLICIES

Introduction and Executive Summary

I am largely going to skip over the report’s front matter, including the executive summary, which largely summarizes information discussed in more detail elsewhere in the document. But there are three points in the report’s first 17 pages that seem to me worth highlighting. 

The first is the emphatic and unequivocal statement, made twice, that Durham was permitted to conduct his investigation with full independence and without Justice Department interference. The first of these occurs in his cover letter transmitting the report to Attorney General Merrick Garland, in which Durham writes, “Finally, we want to thank you and your Office for permitting our inquiry to proceed independently and without interference as you assured the members of the Senate Judiciary Committee would be the case during your confirmation hearings to become Attorney General of the United States.” Durham repeats this sentiment on the third page of the report itself: “The Office very much appreciates the support, consistent with his testimony during his confirmation hearings, that the Attorney General has provided to our efforts and the Department's willingness to allow us to operate independently.”

This should put to rest any questions about whether Durham would be able to finish his investigation unimpeded or whether the Democratic administration might put any strictures or limits on his probe. By his own account, it did not. We should, therefore, take his report as reflecting an account of his conclusions following an investigation that was exactly as exhaustive as he thought it should be. Indeed, Durham writes, “The Office's investigation was broad and extensive. It included investigative work both domestically and overseas. It entailed obtaining large document productions from businesses, firms, government agencies, universities, political campaigns, internet service providers, telephone companies, and individuals. The Office interviewed hundreds of individuals, many on multiple occasions.” Neither the introduction nor the executive summary contains a word suggesting that inappropriate limits were put in its way.

Second, the executive summary usefully identifies the five major questions the report tries to address: 

• Was there adequate predication for the FBI to open the Crossfire Hurricane investigation from its inception on July 31, 2016 as a full counterintelligence and Foreign Agents Registration Act ("FARA") investigation given the requirements of The Attorney General's Guidelines for FBI Domestic Operations and FBI policies relating to the use of the least intrusive investigative tools necessary?
• Was the opening of Crossfire Hurricane as a full investigation on July 31, 2016 consistent with how the FBI handled other intelligence it had received prior to July 31, 2016 concerning attempts by foreign interests to influence the Clinton and other campaigns? 
• Similarly, did the FBI properly consider other highly significant intelligence it received at virtually the same time as that used to predicate Crossfire Hurricane, but which related not to the Trump campaign, but rather to a purported Clinton campaign plan "to vilify Donald Trump by stirring up a scandal claiming interference by Russian security services," which might have shed light on some of the Russia information the FBI was receiving from third parties, including the Steele Dossier, the Alfa Bank allegations and confidential human source ("CHS") reporting? If not, were any provable federal crimes committed in failing to do so? 
• Was there evidence that the actions of any FBI personnel or third parties relating to the Crossfire Hurricane investigation violated any federal criminal statutes, including the prohibition against making false statements to federal officials? If so, was that evidence sufficient to prove guilt beyond a reasonable doubt? 
• Was there evidence that the actions of the FBI or Department personnel in providing false or incomplete information to the Foreign Intelligence Surveillance Court ("FISC") violated any federal criminal statutes? If so, was there evidence sufficient to prove guilt beyond a reasonable doubt?

“Our findings and conclusions regarding these and related questions are sobering,” Durham writes.

But, third, there is a big question missing from this list, and it is the question that launched the Durham investigation in the first place. Remember that Durham was not initially appointed as a special counsel. Back in 2019, then-Attorney General Bill Barr asked him to conduct an internal “review” of what Barr later termed “certain intelligence and law-enforcement activities surrounding the 2016 presidential election.” That review was not just about the Steele Dossier and the Carter Page FISA requests. It dealt, bizarrely, with the question of whether the FBI was lying about the origins of the Russia investigation. The FBI had claimed—and Special Counsel Robert Mueller had affirmed—that the whole thing started when an Australian diplomat named Alexander Downer provided the U.S. with information that a Trump campaign advisor named George Papadopoulos had volunteered in a London meeting over drinks that the Russians had “dirt” on Clinton in the form of “thousands of emails.” But a bunch of Trump supporters ginned up a set of conspiracy theories that this was not how the investigation started, that it all started with Steele, or some secret informant, or that the CIA was involved somehow. Barr had been quite indiscreet about his own conspiracy theories about the Russia investigation, talking openly in congressional hearings about “spying” on the Trump campaign. And major newspapers reported on how he and Durham had traveled overseas together seeking cooperation from foreign allied governments to upend the supposed Australian origins of the investigation. The Washington Post, for example, reported in September 2019 that:

Barr has already made overtures to British intelligence officials, and last week the attorney general traveled to Italy, where he and Durham met senior Italian government officials and Barr asked the Italians to assist Durham, according to one person familiar with the matter, who spoke on the condition of anonymity to discuss a sensitive issue. It was not Barr’s first trip to Italy to meet intelligence officials, the person said. The Trump administration has made similar requests of Australia, said people who discussed the interactions on the condition of anonymity because they involve an ongoing investigation and sensitive talks between governments.

The executive summary actually answers the question of when the Russian investigation started, and it does so unequivocally:

As set forth in greater detail in Section IV.A.3 .b, before the initial receipt by FBI Headquarters of information from Australia on July 28, 2016 concerning comments reportedly made in a tavern on May 6, 2016 by George Papadopoulos, an unpaid foreign policy advisor to the Trump campaign, the government possessed no verified intelligence reflecting that Trump or the Trump campaign was involved in a conspiracy or collaborative relationship with officials of the Russian government. Indeed, based on the evidence gathered in the multiple exhaustive and costly federal investigations of these matters, including the instant investigation, neither U.S. law enforcement nor the Intelligence Community appears to have possessed any actual evidence of collusion in their holdings at the commencement of the Crossfire Hurricane investigation. (p. 8)

In other words, the FBI was telling the truth all along, and Mueller was right. And Inspector General Horowitz was right as well to affirm that story. And there was no conspiracy involving the CIA or the Italians or a confidential human source. And there was no secret “spying” on the Trump campaign. 

But ironically, Durham turns all this on its head and makes it seem like a bad thing that the FBI had no prior evidence of collusion when it opened the investigation following the Downer allegations. 

I will treat this issue at greater length when I get to Section IV, where Durham himself lays out his evidence on the point. For now, let me just say that it seems exceptionally ungraceful of Durham not to say right up front that he investigated at length a series of conspiracy theories about the origins of the investigation and found no evidence of any of them. And it seems perverse that having found that, after all, the FBI’s account of the investigation’s origins was truthful, that he pauses not a moment to acknowledge that fact and to debunk the conspiracies theories before pivoting to bashing the bureau for opening its investigation without “(i) any significant review of its own intelligence databases, (ii) collection and examination of any relevant intelligence from other U.S. intelligence entities, (iii) interviews of witnesses essential to understand the raw information it had received or (iv) using any of the standard analytical tools typically employed by the FBI in evaluating raw intelligence.”

As I say, I will deal with this issue in greater depth when I deal with Section IV.

 

III. APPLICABLE LAWS AND DEPARTMENT AND FBI POLICIES

To a considerable degree, Durham shows his cards in what should be a mundane discussion of the relevant laws and governing policies implicated by his investigation. 

He begins with a rather defensive account of the guidance in the Principles of Federal Prosecution as articulated in the Justice Manual. Given that Durham lost both of the cases he took to trial—in both instances after remarkably short jury deliberations—and faced much criticism for them, it is certainly no accident that he includes in this account that “the likelihood of an acquittal due to unpopularity of some aspect of the prosecution or because of the overwhelming popularity of the defendant or his/her cause is not a factor prohibiting prosecution.”

He then turns to the FBI’s policies surrounding assessments and investigations of counterintelligence matters. His focus? The subheadings here are revealing: “Use of least intrusive means,” “Levels of investigation,” “The Confidential Human Source Guidelines,” “Analytic integrity.” Durham even has a subsection devoted to “Recently upgraded protections,” which is to say rules that have been put in place since the Russia investigation and in response to it but which were not in place at the time it was conducted. Following this is a long discussion of the requirements of the Foreign Intelligence Surveillance Act (FISA), which focuses on the protection of First Amendment protected activity. 

You can tell just by looking at these sections that Durham is going to find that the FBI did not use the least intrusive means of responding to the Downer information, that it opened Crossfire Hurricane at the wrong level of investigation, that it didn’t handle its confidential human source (presumably Steele) appropriately, that it didn’t respond with analytic integrity to information as it came in, and that it didn’t comply with FISA. 

Some of these points are true—and they have been known since the inspector general’s report back in 2019. Some of them are absurd. But they cumulatively offer a window into Durham’s thinking through the investigation. He is examining what he considers the FBI’s overreaction to the problem of Trump’s and his campaign’s and business’s relationship with Russia in 2016 and 2017—and how that overreaction might have violated FBI or DOJ policy or the law. 

This becomes even clearer as Durham turns to what he terms “the principal statutes that we considered to evaluate possible criminal conduct” in the investigation. Those statutes include some laws that almost any investigation would look at: the false statements statute (18 U.S.C § 1001), the perjury statute (18 U.S.C. § 1621), the law forbidding falsification of records (18 U.S.C. § 1519), and the obstruction of justice statute (18 U.S.C. § 1512(c)). 

But it also includes some very suggestive laws. Durham considered cases under the law prohibiting the violation of civil rights (18 U.S.C. § 242), for example. Now whose civil rights do you imagine the FBI might have been violating in Durham’s view? 

He looked at conspiracy to violate civil rights (18 U.S.C. § 241), perhaps imagining Jim Comey and Andy McCabe huddled in a room feeding dog treats to Pete Strzok while plotting about how to mess with poor Donald Trump and paint him as a tool of the Russians. He looked at more general conspiracies under 18 U.S.C. § 371, which is a useful statute if you’re pursuing conspiracy theories. He looked at illegal campaign contributions under 52 USC § 30116(a)(1)(A) and illegal foreign campaign contributions under 52 U.S.C. § 30121(a)(1)(A). 

He looked at money laundering under 18 U.S.C. § 1956(a)(1)(A). He even looked at disclosure of national defense information under 18 U.S.C. § 793(d). 

And, of course, he looked at fraud against the United States under 18 U.S.C. § 1031(a). 

I swear I’m not making any of this up. Durham appears to be admitting here what a bunch of analysts—myself included—have suspected for while: that he saw this investigation as an effort to expose and prosecute a malicious effort by the Hillary Clinton campaign to defraud the FBI into investigating Trump and thereby violate his civil rights, and the dupes at the FBI who either colluded with or fell for this effort. 

Remember, this entire investigation produced exactly one conviction—on exactly one count—and it didn’t have anything to do with any such nonsense.

 

IV. BACKGROUND FACTS AND PROSECUTION DECISIONS

This is really the section where Durham does a lot of the heavy lifting in the report. A brief introductory passage here introduces the several subsections which immediately follow and offers a succinct summary of the office’s charging decisions throughout the probe. The summary of the subsections reads as follows: 

This section begins by providing factual information about the FBI's New York Field Office ("NYFO") investigation of Carter Page in the spring of 2016 (Subsection A. l ); the text messages between certain FBI officials that on their face show a predisposition to investigate Trump (Subsection A.2); and the predication, opening, and conduct of the Crossfire Hurricane investigation (Subsections A.3 through A.5). This part concludes with a comparison of some of the FBI's investigative decisions related to Clinton with some of those related to Trump (Subsection A.6). The remaining parts of this section each include a factual background and then describe the prosecutive decisions the Office made. The first addresses an investigative referral of a possible Clinton "campaign plan" (Subsection B). The next is an extensive discussion of the FISA applications targeting Page (Subsection C). The last part of this section covers conduct by private-sector actors in connection with Crossfire Hurricane and related subjects (Subsection D). In describing these matters, this section does not endeavor to repeat or restate all the information that the Office and others have covered and made public. Instead, it aims to add to that body of information, include additional relevant facts, and explain the prosecutive decisions we made.

Durham then goes on to summarize his rather scant prosecutorial accomplishments. The investigation: 

led the Office to charge three individuals with making false statements. The Office considered whether other individuals, including individuals in the government, made false statements to the FBI, the OIG, or congressional committees or whether, during the course of the Office's investigation, other individuals interviewed either omitted material information or provided false information. 

Quoting the Mueller report, he answers this question as follows: 

Applying the Principles of Federal Prosecution, the Office did not seek criminal charges against any individuals other than those listed above. In some instances, that decision was due to evidentiary hurdles to proving falsity. In others, the Office determined that the witness ultimately provided truthful information and that considerations of culpability, deterrence, and resource preservation weighed against prosecution.

Durham then adds: “The Office determined that other matters it investigated either did not involve the commission of a federal crime or that our evidence was not sufficient to obtain and sustain a criminal conviction.”

He concludes this brief overview with a list of other actions the office took: 

• A referral on June 30, 2020 to the FBI's Washington Field Office ("WFO") regarding a matter related to an existing counterintelligence investigation. 
• A referral in December 2020 to OI of information relevant to the accuracy of information contained in four non-Page FISA applications.
• Referrals of two matters on December 14, 2022 to the Inspector General of the Department of Defense with a copy to the General Counsel of the Defense Intelligence Agency. 
• One matter involved the execution of a contract between DARPA and the Georgia Institute of Technology; and a separate matter involved the irregular conduct in 2016 of two former employees of the Department of Defense. 
• A referral to the FBI's OGC and Inspection Division of an FBI agent for failing to document properly the known history of Igor Danchenko upon his opening as an FBI CHS.
• A referral to the FBI's OGC and Inspection Division of the same FBI agent for questionable instructions given to Danchenko regarding the taxability of cash payments made to him by the FBI. 
•  

A. The Crossfire Hurricane Investigation

Durham now turns to the meat of his critique of the FBI’s Crossfire Hurricane investigation. He begins by briefly describing the preexisting New York Field Office counterintelligence investigation of Carter Page over his contacts with various Russians, intelligence officers and others. He then spends a bit of time describing the text messages between Peter Strzok and Lisa Page, which he describes as showing a “predisposition to investigate Trump.” There is nothing new in this account. And Durham does not show—or even really purport to show—any degree of corruption in the decision to open the Crossfire Hurricane investigation. He does, however, set up his discussion with a section that concludes: 

Although those involved in opening the Crossfire Hurricane investigation denied that bias against Trump was a factor in opening the investigation, the communications quoted above quite clearly show, at least on the part of certain personnel intimately involved in the matter, a predisposition to open an investigation into Trump.

Durham’s fundamental criticism of the decision to open Crossfire Hurricane is that “The FBI opened Crossfire Hurricane as a full counterintelligence investigation,” rather than something lesser:

The starting point for the Office's inquiry was to examine what information was known or available to the FBI about . . . ties [between the people associated with the Trump campaign and Russia] as of July 31, 2016, prior to opening Crossfire Hurricane. That question then divided itself into two related questions: (i) what was the information that predicated the opening of the investigation and (ii) did that information support such an investigation being opened not as an "assessment" or "preliminary" investigation, but from the start as a "full" investigation. 

To start, Durham gives a fairly detailed account of the Australian transmission of the information about George Papadopoulos to the United States in July 2016. This account is actually useful as it contains several details which had not previously been public. Among other things, it confirms publicly the fact that the Papadopoulos meetings took place with former Australian foreign minister Alexander Downer, who at the time was serving as the country’s ambassador to the United Kingdom. And Durham reports some interesting details about how Downer and another Australian diplomat remember the conversation in question. The relevant portion of the Australian transmission reads: 

Mr[.] Papadopoulos was, unsurprisingly, confident that Mr[.] Trump could win the election. He commented that the Clintons had "a lot of baggage" and suggested the Trump team had plenty of material to use in its campaign. He also suggested the Trump team had received some kind of suggestion from Russia that it could assist this process with the anonymous release of information during the campaign that would be damaging to Mrs[.] Clinton (and President Obama). It was unclear whether he or the Russians were referring to material acquired publicly of [sic] through other means. It was also unclear how Mr[.] Trump's team reacted to the offer. We note the Trump team's reaction could, in the end, have little bearing of [sic] what Russia decides to do, with or without Mr[.] Trump's cooperation.

Durham’s beef with the FBI is not that it sought to investigate the allegations. Indeed, he stresses that, “As an initial matter, there is no question that the FBI had an affirmative obligation to closely examine the [Australian] information.” His concern, rather, is that “the information . . . was the sole basis cited by the FBI for opening a full investigation into individuals associated with the ongoing Trump campaign.” The FBI opened this investigation, he complains, before any consultations with the Australian diplomats or Papadopoulos. There were no “collaboration or joint assessments of the information with either friendly foreign intelligence services or other U.S. intelligence agencies.”

The first problem with this criticism is that it’s just not true that the Downer information was all the FBI knew at the time it opened Crossfire Hurricane. It also knew, for example, that two Russian intelligence components had hacked the DNC’s computer servers and stolen a large quantity of email. It also knew that Wikileaks was busy dumping these emails into the public domain. And it also knew that Trump himself, on the very day the FBI received the Australian information, was calling for more hacking of Clinton by the Russians. “Russia, if you’re listening, I hope you’re able to find the 30,000 emails that are missing,” he said at a campaign event. “I think you will probably be rewarded mightily by our press.”

Durham acknowledges all of this on pp. 55-56. In footnote 232, he also acknowledges the inconvenient fact that there was far more, ahem, engagement between Russia and the Trump campaign than the FBI knew about. The footnote reads in relevant part: 

There were also at least some activities involving the Trump campaign and Russians that did not become public, and were not known to the FBI, until much later. For example, on June 9, 2016, senior representatives of the campaign met briefly with a private Russian lawyer, Natalia Veselnitskaya, and others at the Trump Tower. . . . Veselnitskaya "had previously worked for the Russian government and maintained a relationship with that government throughout this period of time." The initial email to Donald Trump Jr. proposing the meeting said that the Crown prosecutor of Russia was offering to provide the campaign with documents and information that would incriminate Clinton. The meeting at the Trump Tower only became public over a year later. 

But Durham weirdly does not process any of this or look at it the way an FBI person in real time obviously would—and unanimously did. He focuses narrowly on the specific text of the opening document for Crossfire Hurricane, which understandably focuses on the new piece of information which had just come in from a highly trustworthy source and which potentially implicated people associated with the Trump campaign with involvement in the Russian scheme. He thus goes directly from noting these other facts known to the FBI to puzzling that “The [FBI] executives were unanimous in supporting the opening of the investigation and there is no indication that these discussions contemplated anything short of an immediate full investigation, such as an assessment or preliminary investigation, into the meaning, credibility, and underpinnings of the statements attributed to Papadopoulos.”

I am puzzled by Durham’s choice to evaluate the decision to open Crossfire Hurricane on the basis of the text of the opening document alone. So I asked Strzok, who wrote the document, why he didn’t include more of the context in it. He wrote the following in response:

The threshold for opening a full investigation was more than satisfied by the facts within the opening [Electronic Communication] EC—a fact confirmed by the independent DOJ Inspector General. Many, many full counterintelligence investigations have been opened on less.

FBI regulations contain no requirement that case openings contain all the information known to investigators; in fact, most don’t. In counterintelligence cases, particularly exceptionally sensitive cases such as this, prudent measures at compartmentation dictate providing enough to be accurate and sufficient but not exhaustive (to minimize damage should the document be lost or compromised). Additionally, much of the investigation of the Russians’ cyber activity resided within the FBI’s Cyber Division, not the Counterintelligence Division. Prudence would dictate coordinating with Cyber Division before including statements about their cases in the Crossfire Hurricane case opening. Due to the sensitivity and compartmentation, that was an unnecessary risk – and in any event, unneeded.

I have looked at the relevant rules and Strzok is clearly correct that the opening EC met the articulated standard. See, for example, pp. 21-22 of the attorney general’s guidelines on domestic investigations, and see also p. 87 of the DIOG:

Note that the Papadopoulos information satisfied all three of these prongs. It suggested, particularly in combination with other known information, that criminal activity and a threat to national security may be occuring (A). It suggested that the Trump campaign may be the subject of “infiltration” or that people within it might be the subject of “recruitment” (B). And an investigation of the matter could certainly be expected to “obtain foreign intelligence” responsive to a designated collection requirement (C). 

Here, however, Durham engages in a bit of trickery that stacks the deck. On p. 24 of the report, he sites this section of the DIOG:

Note, however, that he leaves out the third example of something that might legitimately predicate a full investigation: “FBI DI has posted an authorized PFI requirement for collection.”

Now imagine that you’re Strzok in 2016 when the Papadopoulos information comes in. And imagine that you have a moment of doubt—which Strzok did not—about whether the DIOG would permit a full investigation in these circumstances. So imagine you consult the DIOG on the point and you see that all three circumstances justifying the opening of a full investigation are satisfied. But then imagine you still have doubt, so you consult the three illustrative examples. The first one, you note, requires “corroborated information” from an “intelligence agency,” and you are a far-sighted bureaucrat, so you don’t rely on that one, because you only have uncorroborated information from a pair of diplomats. The second example is better: a mere uncorroborated threat on a blog by someone connected to a known terrorist group. Here you have an uncorroborated claim attributed to Papadopoulos, who is known to be connected to the Trump campaign. But then you look at the third example, which involves the FBI Directorate of Intelligence having posted an intelligence requirement. And you’re dealing with new information about Russian interference in the American election, a matter which you know to be of deep foreign intelligence and domestic counterintelligence concern—both within the FBI and at the presidential level. 

That example seems rather illustrative, and Durham omits it.  

It is, I suppose, a respectable position for Durham to take that he disagrees as a prudential matter with the decision of the unanimous FBI leadership (and the inspector general who reviewed the decision) that a full investigation was more appropriate than a preliminary investigation. But it strikes me as well nigh indefensible for him to suggest that only a preliminary investigation was appropriate under the circumstances. Durham’s basis for doing so is quite thin. While he acknowledges that the guidelines authorize a full investigation if there is an “articulable factual basis for the investigation that reasonably indicates” that a federal crime or threat to national security may be occurring, he writes, that: 

notably the DIOG also explicitly cautions FBI employees to avoid reputational risk to those being investigated by, among other things, specifying different standards for opening an assessment, a preliminary investigation, and a full investigation, with a corresponding continuum of permissible investigative activities. That measured approach does not appear to have been followed with respect to Crossfire Hurricane. 

Might a more institutionally conservative FBI leadership under the circumstances have chosen a preliminary investigation? Perhaps. But it certainly wasn’t lawless or inappropriate for Strzok and the FBI leadership to have gone with the full investigation option. 

Durham also criticizes the speed with which this investigation materialized:

[O]n a Sunday and just three days after receiving the unanalyzed information from Australia, Strzok authored and approved the Crossfire Hurricane opening EC. Thus, a full counterintelligence investigation into a [sensitive investigative matter] was triggered, at the height of a political campaign, before any dialogue with Australia or the Intelligence Community, and prior to any critical analysis of the information itself or the potential for the risk  of error or disinformation, issues that appropriately are addressed during assessments or preliminary investigations. 

Strzok’s answer to this point amused me: 

It was important to open a case before we began the investigative work of traveling overseas to interview a senior foreign government official and investigators continued further review of the allegations and briefing DOJ (in fact, my recollection is the FBI briefed senior executives within DOJ’s National Security Division before I returned from London). I remember being specifically concerned about being criticized by the IG, Congress, or others about conducting investigation without an open investigation. A concerned heightened by then-ongoing Congressional demands for the raw investigative files from our investigation surrounding Hillary Clinton in the Midyear Review investigation.

In other words, Strzok at the time was concerned to have a predicated investigation open because he worried about some later investigator clucking that he was traveling overseas, interfacing with foreign intelligence services, and interviewing Australian diplomats without even having an open investigation. And now, he has Durham clucking because he opened an investigation without first traveling overseas, interviewing foreign diplomats, interfacing with intelligence services, and interviewing the subject of the investigation. 

You can’t win for losing.

“Thus,” writes Durham in perhaps the weirdest passage of the section, 

[A]t the time of opening Crossfire Hurricane, the FBI had (i) publicly available information concerning Papadopoulos's role in the campaign as a volunteer foreign policy adviser, (ii) information obtained from Papadopoulos by the Australian diplomats, (iii) information about Russia's likely election interference activities, (iv) Trump's public statements about Russia, and (v) unvetted media reporting on possible ties between Trump and Russian businessmen. Significantly, beyond this, the FBI's Counterintelligence Division and its Crossfire Hurricane investigators did not possess any intelligence or other vetted, corroborated information regarding Trump or his campaign staff colluding with the Russian government.

So here Durham has posed the question: Was this enough to open an investigation? He seems confident that a reasonable reader would respond that it is insufficient to open a full one. 

But on this question, count me with the unanimous FBI leadership and the Justice Department’s inspector general. It would have been positively insane not to open an investigation—the stuff of ostriches and heads in the sand. 

Durham has here confused the investigative predicate with the investigative finding. The background information on the hacks and the dumping of the emails by Wikileaks combined with the new information from the Australians posed a critically important investigative question: Was anyone associated with the Trump campaign, knowingly or unknowingly, working with the Russians on their efforts to influence the 2016 election? The FBI does not need evidence of that to investigate the possibility. It needs an articulable factual basis to believe it might be happening.

I have one other point to make about this subsection: it’s not clear to me what turns on the question of whether the FBI should have opened a preliminary, rather than a full, investigation. Durham doesn’t spell out what step would have been off-limits to the FBI had it opened only a preliminary investigation. FISA surveillance would have been off the table, of course, but then again, once enough information came in to convince the bureau that it could pursue a FISA warrant, much of it faulty as matters turned out, that information also would have caused the bureau to upgrade the investigation—long before it took that information to the FISA Court. So one possibility is that absolutely nothing turns on the distinction Durham is drawing here. 

But there’s another possibility, which is that Durham is really saying that the whole Russia investigation was rotten from the beginning. He is at least hinting at this possibility, since his clear message is that the full investigation was not properly predicated as an original matter, since he fiercely criticizes the FBI’s subsequent investigative steps, and since he never specifies the point at which, in his view, legitimate information validated the investigation’s existence. 

And yet what then to make of the highly-productive Mueller investigation, which is the lineal descendant of the FBI’s Crossfire Hurricane investigation? Are we to assume that the prosecutions of Paul Manafort should never have happened? Are we to assume that Michael Flynn and George Papadopoulos, two of the other four original subjects of Crossfire Hurricane, were innocents who just happened to lie to the FBI when confronted about the unpredicated nonsense the FBI was investigating? Are we to assume that the IRA and GRU indictments should never have happened? And are we to assume that the gazillions of contacts detailed in the Mueller report between the Russians and the Trump campaign—the meeting at Trump Tower, the negotiations over Trump Tower Moscow, the bizarre effort to recover Hillary Clinton’s missing emails, and the Seychelles meeting—all did not warrant investigation?

If the Mueller report does nothing else, it surely shows that the instinct behind the FBI’s decision to open the Russia investigation was a correct one. There was a huge amount there to investigate. There were dozens of people and entities to prosecute. There were dozens more whose conduct warranted examination—and frankly, exposure. And there was an incredible story of Russian influence, of Trump’s vulnerability to that influence, and yes, of serious efforts at collusion on the part of the Trump campaign, which actively met with agents of the Russian government in order to receive promised dirt on Clinton. 

I’m not an ends-justify-the-means kind of guy. But I’m not sure how Durham can look at a decision to open an investigation that—whatever his reservations—complied with written policy and that yielded such a giant fountain of shocking and democracy-critical information and see it as improper.

Specifically, I’m not sure how he can fail to see the productivity of the investigation as, to some degree at least, a vindication of the instinct he rejects to open the investigation in the first place. That is, to lay the matter bare, doesn’t the fact that an emissary of President Putin met in Trump Tower—right around the time the FBI opened the investigation—with the candidate’s son, son-in-law, and campaign manager peddling precisely the kind of dirt Papadopoulos had talked about to the Australians suggest that the unanimous leadership of the FBI had better instincts than did John Durham?