A Sinister Flop

Defending Donald Trump was always awkward.

So many incidents unfolded in a familiar pattern. Somebody would accuse the ex-president of something bad. The ex-president’s supporters would spring into action to deny the charge—only to be undercut when Trump pivoted, admitted everything, and even bragged about it.

President Trump would never try to pressure an embattled democracy by withholding military aid.

Screech, tzzzip.

President Trump was perfectly within his rights to pressure an embattled democracy by withholding military aid.

Defending the indefensible wears people down. Even the most committed and tribal warrior of the right must have sometimes wished that Trump didn’t keep making the job so hard.

Maybe if there were some way to fight for the Trump cause that circumvented Trump personally? Even better if the spotlight could be shifted from Trump entirely and focused on ideological and cultural enemies instead.

In 2019, Trump was scorched by two massive reports detailing the assistance provided to his 2016 presidential campaign by Russian intelligence agencies. The first, by Special Counsel Robert Mueller, also presented evidence of obstruction of justice. The Mueller document was supplemented by the even weightier report of the Senate Intelligence Committee, then chaired by Richard Burr, a Republican from North Carolina.

The factual record presented by those two accounts was damning. Mueller’s investigation produced some three dozen indictments, seven guilty pleas, and one conviction at trial. Among those sent to prison was Trump’s own campaign chair, Paul Manafort. Mueller also documented the main elements of an obstruction of justice case against Trump—though Mueller heeded the internal Department of Justice rule against prosecuting a serving president.

The Trump White House and its supporters could not refute the material. They sought instead to distort its content and cushion its impact. Attorney General William Barr, for example, withheld the Mueller report for nearly a month to review and make redactions, even as Barr’s office hastened to publish an executive summary that represented the report as an exoneration of Trump personally. (Congress later learned that Mueller had complained to Barr about the summary distorting the special counsel’s findings.) Six Republican members of the Senate Intelligence Committee appended a statement acknowledging Russian interference in the 2016 election, while insisting that “then-Candidate Trump was not complicit.”

But distortion and cushioning are not very satisfactory responses. The facts are the facts; people can assess them for themselves and reach unwelcome conclusions, as five Democratic senators on the Intelligence Committee did in their reply to the six Republicans: “Russian intelligence services’ assault on the integrity of the 2016 U.S. electoral process and Trump and his associates’ participation in and enabling of this Russian activity, represents one of the single most grave counterintelligence threats to American national security in the modern era.”

For the political allies of a character like Trump, it’s dangerous to be cast on the defensive. He’s done so much bad stuff. A certain number of the tribalists may tolerate it all and find ways to equivocate, but the less committed may lose faith. The TV talking heads can repeat “no collusion” over and over, but Trump does keep saying all those complimentary things about Vladimir Putin, no matter what atrocities the Russian president commits. Some of the less anesthetized Republicans are bound to wonder: Why?

Safer, then, to shift to counter-accusation. Which was the mission Barr assigned to his chosen special counsel, John Durham.

Almost from the start of the Trump-Russia investigation, Trump had insisted that he was the real victim. Trump-Russia was a conspiracy cooked up by President Barack Obama, candidate Hillary Clinton, the FBI, and the media to frame him, Trump.

In March 2017, then-President Trump tweeted, “Terrible! Just found out that Obama had my ‘wires tapped’ in Trump Tower just before the victory. Nothing found. This is McCarthyism!” and “How low has President Obama gone to tapp my phones during the very sacred election process. This is Nixon/Watergate. Bad (or sick) guy!” The Department of Justice acknowledged in September 2017 that there was no basis for Trump’s outlandish claim. But the allegation of anti-Trump plotting reverberated through Trump world for the duration of the administration and beyond.

Fossilized versions of this defunct counter-allegation can be found strewn through the text of the Durham report. For example, on page 81:

Durham turns over this fossil a few more times before reluctantly relinquishing it. Durham is willing to disregard some, even many, inconvenient realities (including his own sparse prosecution record: one guilty plea from an FBI attorney for altering an email—a case based on investigative work already done by the DOJ’s own inspector general, Michael Horowitz, as Charlie Savage of The New York Times observed today).

Yet, unlike Trump himself and many in the Trump mediasphere, Durham would not jettison the structure of reality altogether. His report eventually reconciles itself to the delusionary nature of the so-called Clinton Plan. It grudgingly and glancingly accepts that there really was Russian interference in the election of 2016, that it cannot be dismissed as merely the mewling of a scheming Clinton campaign.

Rather than endorse the theory of a global anti-Trump conspiracy, Durham settles into a long bill of grievances against the FBI. The agency’s methods, he argues, were too aggressive; its agents were too ready to believe the worst about Trump. The FBI had only enough information to justify a preliminary investigation, not a full one—a distinction the report carefully parses for some pages. This, in the end, is the gravamen of the Durham report: The FBI overreacted to the available information about Trump’s Russia contacts and should have moved more cautiously before advancing to the next phase of an investigation.

Specialists in the law and practice of counter-intelligence can argue whether Durham has correctly interpreted the appropriate modalities of FBI procedure. Very possibly, Durham is correct. Yet even if he is, isn’t this all kind of underwhelming? Durham’s sponsors hoped to reveal a globe-spanning conspiracy to vilify an innocent Donald Trump. What he delivered for them instead was a list of arguable procedural infractions by the FBI.

Not to belittle the importance of procedural infractions—perpetrators can go free if the infraction is serious enough—but such an infraction doesn’t necessarily make the perp innocent. If the case is dropped because of faulty procedures, that’s a sanction against police misconduct, not an absolution of the accused.

Post-durham, we are exactly where we were pre-Durham.

U.S. government agencies have meticulously documented the help Russian espionage agencies provided to the Trump campaign in 2016. It is a matter of record that the Trump campaign wanted and sought even more help—specifically, that it tried to communicate with WikiLeaks about material from hacked Democratic Party communications.

People in the Trump orbit were caught lying and lying again about their Russian connections. As president, Trump took extraordinary pains to conceal his discussions with Putin, even from other members of his own administration.

That’s all beyond dispute. Durham’s efforts to reopen the disputes failed miserably. What may matter more, however, is what the Durham report does, rather than what it says. What the report says is in essence a classic Miranda-rights criminal defense of a kind that conservatives dislike when it benefits a mugger or a car thief: “The cops messed up in this way or that, and therefore my client must go free, even though we all know he did exactly what he is accused of.”

But what the report does is offer an excuse and escape to Republicans and conservatives who want to protect Trump without outright defending him. Durham tells the story of Trump-Russia while deleting both Trump and Russia. A great many people are eager for that telling. It changes the subject to something much less uncomfortable than the evidence that the Trump presidency was compromised by a corrupt foreign dictatorship.

This revisionism also offers partisans an exciting future possibility: a justification for new rounds of post-Trump culture war. Dan Crenshaw, for example, is a rising leader in the Republican Party—one who has always kept some moral and political distance from Trump, and who is firmly anchored to the pro-Ukraine, anti-Putin side of the GOP House caucus. Yet even he tweeted after Durham:

Similarly, Nikki Haley, the former UN ambassador and a candidate for the 2024 Republican nomination, today demanded retaliation against the FBI: “If we can’t hold the FBI accountable for the Russian hoax, we are no different from South Sudan or the Democratic Republic of Congo. This type of corruption should never happen in America.”

Crenshaw’s and Haley’s menacing but vague language makes clear that they both understand there’s almost certainly no statute to invoke here. They are not calling for measures consistent with the rule of law but are instead appealing to dark fantasies of cultural revenge. But fantasies of cultural revenge are a powerful resource in Republican politics. Durham’s report provides hope that this resource can be distilled and bottled for future use, all its Trump-vintage muck boiled away.

Durham offers something else too. One of the big projects of post-Trump Republican politics is to assert greater partisan control over the federal civil service. Florida Governor Ron DeSantis argued this in a February 2023 interview on Fox News:

The Durham report may become the leading documentary evidence for this point of view in the next Republican administration.

As a legal text, the Durham report is limp and meager. As a history of recent events, it is misleading. But don’t dismiss its significance because of its intellectual defects. The Durham report is already proving to be a huge success as a prop and support for the bitterest partisan rancor. And its fullest import may yet lie ahead: as a rationalization for abuses of power by Trump-legacy administrations of the future.