Special counsel John Durham’s failure to indict any Obama-era FBI officials involved in the Trump-Russia collusion probe has left conservative activists and Trump allies questioning why he didn’t pursue prosecutions that they say were handed to him on a silver platter.
Mr. Durham brought three prosecutions during his sprawling, four-year probe that concluded Monday, but netted only one conviction — a low-level FBI lawyer who admitted to doctoring evidence.
The other two cases involved alleged false statements to the FBI by a Hillary Clinton campaign lawyer and a Russian analyst. Both were acquitted by juries and shed little new light on the bureau’s decision-making in 2016.
None of the three indictments involved high-profile FBI figures who greenlighted an investigation into former President Trump’s 2016 campaign based on unverified intelligence, and ignored evidence that countered the collusion narrative, according to Mr. Durham’s 300-page report released Monday.
That’s not enough, insisted some Republicans who say that Mr. Durham should have mounted an investigation into a slew of former Obama administration leaders and high-ranking officials, including Mrs. Clinton, former FBI Director James Comey, former FBI Deputy Director Andrew McCabe, and current White House National Security Advisor Jake Sullivan
They also say Mr. Durham should have criminally investigated the top FBI officials who signed off on a surveillance warrant for Trump campaign adviser Carter Page.
Some lawmakers are demanding prosecutions.
“When government officials fail to abide by the boundaries set by the U.S. law and the constitution, there must be accountability. Those who perpetrated this hoax to the American people must go to jail,” said Rep. Daniel Webster, Florida Republican, in response to the Durham report.
It’s especially glaring, conservatives say, because Mr. Durham’s report eviscerates those who were running the FBI in 2016, when they launched Operation Crossfire Hurricane, the bureau’s code name for the Trump probe.
“The report shows a yawning gap between what went on and the prosecutorial response,” said Tom Fitton, president of Judicial Watch, a conservative watchdog. “I think Durham dropped the ball when it came to prosecutions and this was a glorified administrative review.”
But Solomon L. Wisenberg, a white-collar criminal defense attorney and deputy in independent counsel Kenneth W. Starr’s 1990s probe into the Clintons, dismissed calls for more high-level prosecutions as “stupid.”
“Durham’s job wasn’t to satisfy the partisan right or get heads on a stick. It was about finding out what went on and whether this investigation was properly predicated,” he said.
Mr. Durham’s report appears defensive over Republicans’ disappointment that he failed to secure a significant criminal conviction or even bring a major prosecution related to FBI misconduct in the Trump-Russia probe.
“Not every injustice or transgression amounts to a criminal offense,” he wrote in the report, adding that “horribly bad judgment” is not always a crime.
He also suggested that Republicans’ demands for criminal charges for someone in the Clinton campaign are misguided.
Republicans last year pressed for swift action against Clinton campaign officials after it was revealed that Mrs. Clinton personally approved sharing information with a reporter about an uncorroborated alleged backchannel links between Mr. Trump and a Russian bank. The allegations were later proven false.
Mr. Sullivan had faced allegations that he may have committed perjury during his 2017 congressional testimony.
At the time, Mr. Sullivan reportedly denied knowing any specific details about the Clinton campaign’s opposition research efforts or that Michael Sussmann, an attorney later indicted by Mr. Durham, was working for the campaign.
Mr. Sussmann’s indictment details how he exchanged emails with an unnamed Clinton campaign “foreign policy advisor” about the Russian bank allegations that were also shared with a reporter.
“All unseemly or unethical conduct that political campaigns undertake for tactical advantage” are not illegal, and prosecutors must prove criminal intent to bring charges, Mr. Durham wrote.
Former Trump administration official Michael Caputo said by not bringing prosecutions, Mr. Durham will encourage more politically motivated criminal probes.
“By failing to recommend charges against the conspirators, Durham [on Monday] confirmed my two biggest takeaways from the Russia hoax. First, our nation’s justice system is broken beyond repair, shattered into a million pieces. Second, this now-sanctioned sedition will happen again soon, probably in the months ahead,” he said.
Some conservatives say Mr. Durham should have looked harder into possibly bringing charges against Mr. Comey or Mr. McCabe. Both men were referred to the Justice Department for criminal prosecution, but charges were never filed.
Former Attorney General William P. Barr, a Trump pick who headed the Justice Department when charges were declined, did not respond to a request for comment. Mr. Barr also appointed Mr. Durham to serve as special counsel.
Justice Department Inspector General Michael Horowitz concluded that Mr. Comey violated FBI and Justice Department policies when he leaked memos detailing his interactions with Mr. Trump.
Mr. Horowitz referred the former FBI director for a criminal prosecution, which is standard practice when wrongdoing is suspected.
The memos, which Mr. Comey leaked to a friend who later shared them with the New York Times, and his lawyers, were classified as confidential.
It is a crime to distribute confidential government information, but the memos were labeled “confidential” after the chain of events that led to them ending up in the press.
Mr. McCabe was also referred to the Justice Department by Mr. Horowitz for criminal charges stemming from inaccurate statements he made to FBI investigators probing leaks to the media around the time of the 2016 election.
Lawyers for Mr. McCabe were told in September 2019 that he should expect to be indicted after an inspector general report concluded he misled officials about authorizing disclosures related to the FBI’s probe into the Clinton Foundation.
The Justice Department abandoned its prosecution in early 2020, leading to speculation that a Washington-based grand jury rejected the charges.
Although the allegations are not directly linked to the FBI’s decision to launch the Trump collusion probe, criminal charges would be a way to exert pressure on them to cooperate. Former special counsel Robert Mueller filed charges against roughly a half-dozen Trump associates to secure their cooperation in his probe.
Still, Mr. Durham’s probe was hamstrung by several key officials giving him the cold shoulder when it came to being interviewed.
The report shows he interviewed Mr. Sullivan in November 2021, and Ms. Clinton and her campaign chairman John Podesta in May 2022.
However, Mr. Comey and Mr. McCabe along with William Priestap, a senior FBI counterintelligence official, all turned down interviews. Peter Strzok, a senior FBI official, agreed to discuss a small aspect of the probe but refused a deeper interview.
Mr. Fitton said the lack of cooperation should have been a red flag for Mr. Durham.
“Comey didn’t cooperate. Strzok did cooperate, but not on the substantial issues. As a prosecutor, how would you read that into someone’s potential culpability?” he said.
• Jeff Mordock can be reached at jmordock@washingtontimes.com.