This is the legal landscape now before the man who must be identified as the attorney general of the United States: The unanimous consensus of the American intelligence community, the findings of the Mueller investigation, and the bipartisan conclusion of the Senate Select Committee on Intelligence all agree that the Russian Federation interfered in the 2016 presidential election “by harming Hillary Clinton’s chances of success and supporting Donald Trump at the direction of the Kremlin.” Special counsel Robert Mueller documented numerous interactions between Russian actors and Trump campaign officials and laid out 10 instances of obstruction of justice committed by President Donald Trump. And now Trump faces impeachment over his illegal solicitation of foreign intervention for his 2020 reelection campaign and his shocking quid pro quo withholding of military aid to Ukraine unless its government publicly promised to investigate groundless allegations against his potential opponent, former Vice President Joe Biden.
In response, William Barr, the man columnist William Safire aptly called the “Cover-up General” almost 30 years ago, is functioning as Donald Trump’s consigliere, not as the chief law enforcement officer for the American people. Barr’s mission now is to manufacture evidence to paint the very investigations into Trump’s lawlessness as illegitimate themselves. The very basis of the Trump-Russia probe, Barr suggested earlier this year, might well be illegal “spying” carried out by the Obama administration against the 2016 Republican nominee. Instead, the globe-trotting Justice Department boss hopes to show, it was Ukrainian skullduggery three years ago that framed Russia and the Trump campaign.
To make his case, Bill Barr isn’t merely pressuring American allies such as the U.K., Italy, and Australia to admit to dubious dealings. He’s turning the screws on dedicated career public servants in the CIA and the FBI whose only crime was to sound the alarm about Vladimir Putin’s heavy hand in the 2016 campaign. And as the The New York Times reported after his trip to Rome in September, Barr is deploying some big names in service of his inquisition.
Everything about Mr. Barr’s visit was unusual — not least his companion and their mission: John H. Durham, a top federal prosecutor whom Mr. Barr has assigned to review the origins of the Russia investigation. They were seeking evidence that might bolster a conspiracy theory long nurtured by President Trump: that some of America’s closest allies plotted with his “deep state” enemies in 2016 to try to prevent him from winning the presidency.
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For his review, Mr. Durham has enlisted Nora R. Dannehy, a veteran federal prosecutor who worked with him in Connecticut and led a two-year inquiry into whether department officials under President George W. Bush broke the law in firing several United States attorneys.
If those names sound hauntingly familiar, they should. It was John Durham who was tapped by President George W. Bush’s last attorney general, Michael Mukasey, to investigate whether any laws were broken when the CIA’s Jose Rodriguez and his then-deputy Gina Haspel ordered the destruction of roughly 100 videotapes of terrorism suspect detainee interrogations. When Barack Obama became president, his attorney general, Eric Holder, expanded the scope of Durham’s probe to look into detainee deaths in American custody and whether interrogators had violated U.S. or international law. As for Dannehy, she was selected by Attorney General Mukasey to look into the potential criminality of the Bush White House’s purge of U.S. prosecutors.
In 2006, the Bush administration forced out nine of the then-sitting 93 U.S. attorneys for what at the time appeared to be political considerations. Republican senators, congressmen, donors, and others in GOP circles had complained about prosecutors who they claimed had not pursued their priorities on voter fraud, illegal immigration, and allegations against Democrats, among other issues. (It was during congressional hearings on this topic that Attorney General Alberto Gonzales famously uttered some variant of “I don’t recall” 68 times, including the side-splitting, “I don’t recall remembering.”)
As The New York Times detailed in September 2008, Gonzales’ successor, Mukasey, ordered a new probe after a damning Justice Department inspector general report highlighted the politics behind the purge of prosecutors.
Attorney General Michael B. Mukasey on Monday appointed a federal prosecutor to continue an investigation into the dismissals of nine federal prosecutors in 2006 as an internal Justice Department inquiry concluded that political pressure drove the action against at least three of them.
The internal investigators said that the White House’s refusal to cooperate in the high-profile investigation produced significant “gaps” in the understanding of who was to blame and that they did not have enough evidence to justify recommending criminal charges in the affair. Now the task of determining if anyone should be prosecuted will fall to Nora Dannehy, the federal prosecutor in Connecticut.
Among those “gaps” that emerged from the 90-plus interviews conducted by the DOJ inspector general and its Office of Professional Responsibility were the testimonies of three key Bush administration officials at the center of the dismissal of the prosecutors (the prosecutors included David Iglesias in New Mexico and Bud Cummins in Arkansas). “Karl Rove, the former political adviser to President Bush; Harriet E. Miers, a former White House counsel; and Monica M. Goodling, a former Justice Department liaison to the White House refused to be interviewed,” the Times reported.
On July 21, 2010, Dannehy announced that she would bring no charges against Gonzales, Rove, Miers, Goodling, or any of the other key players behind the purge of the nine U.S. attorneys. That scandal, part of a larger effort to target Democratic politicians and suppress Democratic voter turnout, would go unpunished. CBS News reported at the time:
"Evidence did not demonstrate that any prosecutable criminal offense was committed with regard to the removal of David Iglesias," the Justice Department said in a letter to lawmakers Wednesday. "The investigative team also determined that the evidence did not warrant expanding the scope of the investigation beyond the removal of Iglesias."
Prosecutors also said there was insufficient evidence to charge someone with lying to Congress or investigators.
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Dannehy faulted the Justice Department for firing Iglesias without even bothering to figure out whether such complaints were true. That indicated "an undue sensitivity to politics on the part of DOJ officials who should answer not to partisan politics but to principles of fairness and justice," the Justice Department wrote in its letter.
But that was not a crime, and was not an effort to influence prosecutions, the letter said.
Given the wide latitude granted to the president in hiring and firing U.S. attorneys, identifying and proving that a crime had been committed was always going to be a daunting task. But that wasn’t the case with the Bush regime of detainee torture. After all, President Bush and Vice President Dick Cheney publicly confessed to their crimes, crimes that President Obama acknowledged when he stated simply, “We tortured some folks.”
President Bush's endorsement of the use of waterboarding and other enhanced interrogation techniques against September 11 mastermind Khalid Sheikh Mohammed and other terrorism suspects came in June 2010. As CNN reported:
"Yeah, we waterboarded Khalid Sheikh Mohammed," the former president said during an appearance at the Economic Club of Grand Rapids, Michigan, according to the Grand Rapids Press.
"I'd do it again to save lives," he added.
If that sounded familiar, it should have. That February, Dick Cheney had bragged to ABC's Jonathan Karl in almost the exact same terms, saying, “I was a big supporter of waterboarding. I was a big supporter of the enhanced interrogation techniques.”
And in that same interview, Cheney confirmed that both the Bush legal team that invented the spurious rationale for detainee torture and those implementing it were merely following orders:
The reason I've been outspoken is because there were some things being said, especially after we left office, about prosecuting CIA personnel that had carried out our counterterrorism policy or disbarring lawyers in the Justice Department who had -- had helped us put those policies together, and I was deeply offended by that, and I thought it was important that some senior person in the administration stand up and defend those people who'd done what we asked them to do.
Besides, former national security adviser and Secretary of State
Condoleezza Rice explained in 2011 to students at Stanford University, what President Bush asked them to do was
legal by definition. Echoing Richard Nixon's post-Watergate dictum that "when the president does it, that means that it is not illegal," Rice said:
"The president instructed us that nothing we would do would be outside of our obligations, legal obligations under the Convention Against Torture. [...] The United States was told, we were told, nothing that violates our obligations under the Convention Against Torture, and so by definition, if it was authorized by the president, it did not violate our obligations under the Convention Against Torture."
The problem for incoming President Barack Obama and Attorney General Eric Holder, however, was that they both had already stated, “Waterboarding is torture.” And they were obligated by American and international law to identify and prosecute those responsible for perpetrating it. As President Ronald Reagan explained in his May 1988 signing statement accompanying the Convention Against Torture, the convention "marks a significant step in the development during this century of international measures against torture and other inhuman treatment or punishment." As Reagan said in his message to the Senate, “The core provisions of the Convention establish a regime for international cooperation in the criminal prosecution of torturers relying on so-called ‘universal jurisdiction.’ Each State Party is required either to prosecute torturers who are found in its territory or to extradite them to other countries for prosecution.”
To put it another way, American and international law didn't give Barack Obama—or any American president—the choice of deciding whether "to look forward as opposed to looking backwards" when it came to torture practiced by the United States. It's no wonder that UN Committee Against Torture expert Alessio Bruni told Assistant Secretary of State Tom Malinowski during a regular quadrennial review of compliance with the convention in 2014, “I would appreciate if the delegation could give an example of prosecution of public official violating this legal provision, which is contained in section 1003 of the Detainee Treatment Act.”
While, as the Times reported, the U.S. delegation to the review "acknowledged that the United States had tortured terrorism suspects after the Sept. 11 attacks,” it could not point to any prosecution of any American officials. That’s because Obama, Holder, and Durham didn’t prosecute any.
Early on, it was clear that President Obama would not hold George W. Bush, Dick Cheney, Condoleeza Rice, John Yoo, Jay Bybee, David Addington, or any other Bush administration figure to account for their program of detainee torture. During his confirmation hearings on Jan. 16, 2009, attorney general nominee Eric Holder declared, "Waterboarding is torture." But he also reassured Republicans on the Senate Judiciary Committee about something else: “I think President-elect Obama has said it well. We don't want to criminalize policy differences that might exist between the outgoing administration and the administration that is about to take over. We certainly don't want to do that.”
Obama, grappling with the implosion of the U.S. economy and the certainty of scorched-earth opposition from Republicans, wanted no part of a prosecution of the Bush Torture Team. As he explained when he released the Bush torture memos in April 2009:
In releasing these memos, it is our intention to assure those who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution.
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This is a time for reflection, not retribution. I respect the strong views and emotions that these issues evoke. We have been through a dark and painful chapter in our history. But at a time of great challenges and disturbing disunity, nothing will be gained by spending our time and energy laying blame for the past.
All of which meant that John Durham’s mandate to investigate the abuses under President Bush would never include those, like Bush, who actually ordered them. As Time recently recalled:
In 2008, then-Attorney General Michael Mukasey appointed Durham to investigate the destruction of CIA video tapes of detainee interrogations. Then-Attorney General Eric Holder expanded Durham’s mandate in 2009 to also investigate the legality of the CIA’s enhanced interrogation techniques with detainees. Durham opened criminal investigations into the deaths of two detainees.
So it was that no one—not Jose Rodriguez and not Gina Haspel—was charged in the destruction of the CIA tapes, despite the fact that the agency’s lawyer had expressly warned leadership not to destroy them. And when Durham finished up his inquiry in August 2012, not a single one of the 100 cases reviewed resulted in charges being filed against anyone. As Holder’s statement summed it up:
On Aug. 24, 2009, based on information the Department received pertaining to alleged CIA mistreatment of detainees, Attorney General Eric Holder announced that he had expanded Mr. Durham’s mandate to conduct a preliminary review into whether federal laws were violated in connection with the interrogation of specific detainees at overseas locations. Attorney General Holder made clear at that time, that the Department would not prosecute anyone who acted in good faith and within the scope of the legal guidance given by the Office of Legal Counsel regarding the interrogation of detainees. Accordingly, Mr. Durham’s review examined primarily whether any unauthorized interrogation techniques were used by CIA interrogators, and if so, whether such techniques could constitute violations of the torture statute or any other applicable statute.
[…]
“I asked Mr. Durham to conduct this review based on existing information as well as new information and matters presented to me that I believed warranted a thorough examination of the detainee treatment issue.
“I am confident that Mr. Durham’s thorough reviews and determination that the filing of criminal charges would not be appropriate have satisfied that need. Our inquiry was limited to a determination of whether prosecutable offenses were committed and was not intended to, and does not resolve, broader questions regarding the propriety of the examined conduct.”
So it was that U.S. prosecutors John Durham and Nora Dannehy found themselves at the center of two of the Bush administration’s biggest scandals. In neither the sacking of the U.S. attorneys nor the probes of detainee torture was a single Bush administration official or career civil servant indicted for any crime. (In August 2017, three plaintiffs represented by the American Civil Liberties Union won an undisclosed settlement with Dr. Bruce Jessen and Dr. James Mitchell, the two psychologists who together earned $81 million in contracts from the CIA to design and implement its interrogation program.) Given the bipartisan praise for the two and the limitations on the scope of their Bush-era investigations, there has been little reason to question their fairness and objectivity.
But that could all soon change. The Department of Justice inspector general, Michael Horowitz, is expected to release a report that conservatives hope will show, among other things, that the FISA warrant that triggered the FBI’s Russia probe was politically motivated. (Among those hopeful conservatives is one Michael Mukasey, who on Sept. 29, 2019 penned a Wall Street Journal op-ed titled, “John Durham’s Ukrainian Leads.”) But Donald Trump and his Republican allies are placing their biggest hopes on Attorney General Barr’s investigation of the investigators. As Fox News recently reported, that means John Durham and Nora Dannehy could potentially become right-wing heroes of the first rank:
Although Durham, the U.S. attorney from Connecticut, initially was appointed to review the events leading up to the 2016 presidential election and through Trump’s January 2017 inauguration, Fox News has reported that he later broadened his investigation to cover a post-election timeline extending through the spring of 2017—when Robert Mueller was appointed as special counsel.
"If the rumors are true that IG Horowitz’s report and findings in Durham’s review will blast the conduct of the FBI’s Russia investigation, it will give Trump a lot of ammo to support his argument that he was unjustly targeted then and is being unjustly targeted now," a House GOP source told Fox News on Tuesday. "It will justify Trump’s warnings about the Deep State acting to hobble his presidency."
If so, Durham and Dannehy, wittingly or not, could be involved in helping a lot of Republicans stay out of prison. Again.