Margot Cleveland, a legal analyst we greatly respect and have quoted here many times, is offering a strong caution after seeing a court filing made Friday by special counsel John Durham in the Igor Danchenko criminal case. It suggests to her that he’s ignoring the FBI’s malfeasance in targeting President Trump in “Crossfire Hurricane,” allowing the partisan deep state to go unpunished. Not only does this approach jeopardize his case against Danchenko, she says, but it encourages the further weaponization of the ‘justice’ system. (Could it get even worse? Oh, yes.)
It was then-Attorney General Bill Barr who, waaaay back in May of 2019 B.C. (Before Covid), appointed Durham, then U.S. attorney for Connecticut, to be the special counsel. Three prosecutions have resulted: 1) Michael Sussmann, who was SHOWN in court to be guilty of lying to the FBI about not representing any client –- in fact, he billed Hillary’s campaign –- in coming to them with the fake Alfa Bank story but, to no one’s surprise, was acquitted anyway by a DC jury; 2) Igor Danchenko, the main source for the fake Steele “dossier” who awaits trial next month on charges of lying to the FBI; and, 3) Kevin Clinesmith, the former FBI attorney who falsified part of an email used in the warrant application to spy on Trump associate Carter Page.
That should have been a BIG DEAL, indicative of the rock-bottom standards this whole group of low-life prosecutors had in (yes) framing Trump. But for his enormously impactful dishonesty, Clinesmith took a plea agreement that gave him 12 months’ probation and 400 hours of community service, probably teaching legal ethics. Okay, we made that last part up. But it really was just a slap on the wrist.
On October 24, Danchenko goes to trial on five counts of lying to the FBI about his role as Christopher Steele’s “primary sub-source.” But Danchenko, in a motion to dismiss filed this month, is arguing his lies were not “material” to the case, saying that Crossfire Hurricane agents never intended to drop their investigation of Donald Trump, and therefore any lies he told the FBI did not affect their decision-making.”
He surely has a point about the FBI’s decision-making, as they were set on getting Trump no matter what he told them, but as Cleveland explains, a lie, to be “material,” does not have to influence the agency’s decision-making process. It only has to be “capable” of doing so: “The question is whether the lie was capable of influencing how a hypothetically ‘objective’ government official would have acted had they known the truth.”
(Aside: We truly are working with hypotheticals here, as these government officials have shown themselves to be anything but objective.)
According to Cleveland, Durham isn’t likely to convince a jury that Danchenko’s alleged lies were capable of influencing decisions made by objective FBI agents –- UNLESS he makes it clear to them that the reason these agents wouldn’t have been influenced is because they were NOT objective and were ALREADY OUT TO GET TRUMP. That is the truth, and we all know it, but the jury has to understand it or else Danchenko’s argument against “materiality” will stand. Cleveland says other pre-trial filings from the past 10 days show that Durham has no intention of taking that tack.
Two words for Durham: Why not??
Cleveland speculates, pointing out that both Barr and Durham have avoided opportunities to prosecute others who likely engaged in criminal activity. To cite just one example, former FBI Deputy Director Andrew McCabe was not prosecuted for lying about a leak to the media and is now lying regularly on MSNBC. In turn, MSNBC lies about him. Why, he and former Director James Comey are victims...
Cleveland doesn’t think, however, that Barr’s motivation is to cover up wrongdoing. But she does see his rationalization for letting people skate as something that doesn’t work any longer.
We’ve been scratching our heads about what is going on with Barr lately, and I encourage you to read Cleveland’s theory. Pulling from some of his writings, she believes he considers “the pathology of our age” to be the belief hat “simply because circumstances suggest wrongdoing, some set of people should go to prison for a crime.” Barr said in his memoir that “not all censurable conduct is criminal,” adding that “the current tendency to conflate the foolish with the legally culpable causes more harm than good.”
He promised that ‘justice’ would not be “a tit-for-tat exercise.” He did not want to see the criminal ‘justice’ system used for partisan political ends. “The only way to stop this vicious cycle,” he wrote, “the only way to break away from a dual system of justice, is to make sure we scrupulously apply the single and proper standard of justice for everybody.”
Cleveland presumes that since Durham was appointed by Barr, he shares Barr’s opinion on that. But it turned out to be wrong. They're both WRONG.
Prosecutorial discretion is not the same as a cover-up, Cleveland says. These trials are exposing many significant details relating to the Russia Hoax, and we know there’s more to come, especially with the news that Danchenko’s FBI handler will be testifying at his trial. “Durham’s speaking indictments in the Sussmann and Danchenko cases establish that the special counsel will expose the malfeasance of the DOJ and FBI and their complicity with the Clinton campaign and other politically motivated actors.” Look for everything to be in the final report.
The problem, though, is that “Barr and Durham’s high-minded approach did not stop the vicious cycle,” she says. Instead, their “tepid” approach “emboldened” the deep state to target more political enemies. As Cleveland puts it, since Biden’s been in office, they’ve “gone nuclear” with their targeting. (We’d add that January 6 is now their convenient pretext.) Some of their more recent activities make Crossfire Hurricane look like child’s play she says. The DOJ has not learned by Barr’s example to apply a single standard of justice to all. No, they’ve gotten worse! (We’d add that this observation jibes with the earlier point that the idea of an objective ‘justice’ system is now of necessity hypothetical.)
Cleveland points out that the weaponization of the DOJ/FBI goes far beyond Trump, including his family, others in his immediate orbit, his friends and supporters, and expanding to include “election deniers,” “domestic terrorist” parents at school board meetings and members of nonprofits who have unapproved opinions about abortion, transgender surgery, etc. The circle gets wider and wider.
So, the Barr-Durham approach backfired. If there was any question before, now the Democrats think they own the DOJ and FBI and are acting on that assumption. And the agents and attorneys that get outed by whistleblowers –- Tim Thibault, Brian Auten, etc. –- remain unscathed.
Cleveland says that “what seemed judicious three-and-a-half years ago proves foolhardy today because Barr and Durham’s discretion taught the left only one lesson: There will be no consequences to those who abuse the system to attack conservatives."
Is it too late? Cleveland says that to save our country, the special counsel needs to reverse course and file every possible charge against everyone complicit in the Russia Hoax and its investigation.