On Wednesday, America was treated to the incredible spectacle of House Republicans attacking John Durham. The peak moment of that event may have been when Rep. Matt Gaetz, whose own experience comes mainly in the form of being the subject of investigations, told the veteran prosecutor that he didn’t know how to conduct an investigation.
Durham has served as either a U.S. attorney or assistant U.S. attorney for longer than Gaetz has been alive. He spent nearly a decade chasing down mobsters at the head of the Justice Department's Organized Crime and Racketeering Section. The whole reason Durham was picked by William Barr to find some dirt on the investigation into Donald Trump’s Russia connections was his long experience revealing corruption and extortion within the FBI and Department of Justice. It was Durham who caught the FBI using false information and the arm-twisting of a judge to gain convictions on a whole series of suspected Mafia hit men, leading to the families of those men winning a $101 million lawsuit against the government.
For more than three and a half years, Durham was the hero of the American right. He was held up by Republicans as the guy who was going to defend Trump, reveal the deep state, and get to the truth, damn it. Now Durham is a pariah among the same people who couldn’t stop cheering him just months ago. But he shouldn’t take it personally. No prosecutor is going to please Republicans like Gaetz. Not if that prosecutor relies on things like evidence and facts.
This is where we are. We’re down to Gaetz, in a voice that seems to be cracking with frustration, accusing the guy who he and everyone else on the Republican side of the aisle praised for so long, as a deep state agent and “part of the coverup.”
Over the course of his lengthy investigation, Durham traveled the world, investigating claims that Republicans had made about sources in Italy, Australia, and the U.K. On multiple occasions, he expanded his team to provide more people to follow up leads and sift through paperwork. He reportedly found new evidence that lead him to repeatedly expand his investigation into looking at issues beyond just how the probe into Trump’s Russia connections began. He issued dozens of subpoenas, including to law firms associated with Hillary Clinton. He looked at how the intelligence community vetted its sources. He looked at how the FBI conducted interviews with Michael Flynn. He conducted a “comprehensive global probe.” He was given extraordinary reach under William Barr, and his access to people, records, and resources was not altered when Merrick Garland became attorney general.
In the end, he indicted three people on minor charges. Two of them were acquitted at trial, leaving a single conviction against FBI attorney Kevin Clinesmith for miswording a FISA wiretap warrant against former Trump adviser Carter Page. Clinesmith got 12 months of probation. That’s it.
But at least Durham has plenty of company. After all, Barr himself spent practically every moment of his term as attorney general trying to find something that would satisfy Trump’s demands for evidence that he had been wronged. So did Jeff Sessions in the first two years of Trump’s White House occupation. Neither of them turned up anything worth leveling a charge.
Before moving to Durham, Republicans spent the previous week attacking U.S. Attorney David Weiss, who, following a five-year investigation, charged Hunter Biden with two misdemeanor tax counts and a charge of having a gun while taking drugs, none of which is going to add up to any prison time. Like Durham, Weiss also failed to find any grand deep state conspiracy, Biden crime family connections, or that vast network of underground pizza tunnels. Like Durham and Barr, Weiss is now in the Republican doghouse, forever condemned as someone who failed.
Republican frustration might be a little bit understandable if we look at it in terms of a couple of charts.
In his investigation, Robert Mueller was able to bring 98 indictments against 34 individuals. Though 26 of those individuals were safely out of Mueller’s reach, largely within Russia, he gained convictions against Trump’s former attorney, campaign manager, national security adviser, three campaign advisers, and two others tied to the campaign through the campaign manager.
Jack Smith was only appointed as special counsel in November, with barely more than half a year on the job. But he’s already filed 38 indictments, 37 of which include the name “Donald J. Trump.”
Here’s another way of looking at that same information.
When investigating issues connected to Trump, prosecutors have filed just under 60 indictments per year of investigation. When trying to find reasons to absolve Trump, or investigating the Bidens, prosecutors have been able to lodge just 0.7 indictments per year of investigation.
Mueller’s team looked into Trump and his associates and found crimes. Smith’s team looked into Trump and his associates and found crimes.
Durham’s team spent almost four years trying to find the vaunted deep state conspiracy, and found next to nothing. Weiss’ team spent nearly five years looking for evidence of that “Biden crime family,” and found nothing that warranted a single day in jail.
There are really only a couple of possibilities here: Either Republicans are singularly bad at selecting prosecutors, or one side has been responsible for a lot more crime. A lot more.
Of course, it can be argued that Weiss shouldn’t count because he was really only charged with looking at one person. But then, so was Smith.
Or maybe Smith shouldn’t count because, even with his 37 indictments against Trump, he hasn’t yet scored a conviction. However, it's too early to believe that he won’t convert some of those indictments into guilty verdicts.
There’s little wonder that Trump was back on his failing social media platform Thursday, appealing directly to the Republicans who just raked Durham over the coals.
After all, it’s been pretty conclusively proven that setting loose a federal prosecutor with unlimited time and budget still can’t help Trump find a conspiracy that doesn’t exist. That’s because federal prosecutors are dependent on things like evidence of wrongdoing. Guys like Gaetz have no such restrictions. After all, they just censured Rep. Adam Schiff for the crime of following House procedure and impeaching Trump.
If it comes down to the rule of law, Trump can’t win. So he needs people who are willing to ignore the rule of law. Trump used to demand a lawyer who could be his “new Roy Cohn.” What he’s demanding now is a new Robespierre. His followers have already set up gallows on the Capitol lawn. A guillotine shouldn’t be beyond their scope.
But so long as things are still settled in a court of law, Trump is going to lose.
Joining us on "The Downballot" this week is North Carolina Rep. Wiley Nickel, the first member of Congress to appear on the show! Nickel gives us the blow-by-blow of his unlikely victory that saw him flip an extremely competitive seat from red to blue last year, including how he adjusted when a new map gave him a very different district and why highlighting the extremism of his MAGA-flavored opponent was key to his success. A true election nerd, Nickel tells us which precincts he was tracking on election night that let him know he was going to win—and which fellow House freshman is the one you want to rock out with at a concert.