Special counsel John Durham’s failure to indict any Obama-era FBI officials involved in the Trump-Russia collusion investigation has left conservative activists and Trump allies questioning why he didn’t pursue prosecutions that they said were handed to him on a silver platter.
Mr. Durham brought three prosecutions during his sprawling, four-year probe that concluded Monday, but he 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 attorney 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 Donald Trump’s 2016 presidential 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, some Republicans insist. They say Mr. Durham should have mounted an investigation into a slew of Obama administration leaders and high-ranking officials, including Mrs. Clinton, former FBI Director James B. Comey, former FBI Deputy Director Andrew McCabe and current White House National Security Adviser Jake Sullivan.
They 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,” Rep. Daniel Webster, Florida Republican, said 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 during the launch of Operation Crossfire Hurricane, the bureau’s code name for the Trump investigation.
“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.”
Solomon L. Wisenberg, a white-collar criminal defense lawyer and deputy in independent counsel Kenneth W. Starr’s 1990s investigation into the Clintons, said calls for more high-level prosecutions are “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 investigation.
“Not every injustice or transgression amounts to a criminal offense,” he wrote in the report, and “horribly bad judgment” is not always a crime.
He suggested that Republicans’ demands for criminal charges for someone from the Clinton campaign are misguided.
Republicans pressed for swift action against Clinton campaign officials last year after it was revealed that Mrs. Clinton approved sharing information with a reporter about uncorroborated backchannel links between Mr. Trump and a Russian bank. The allegations were later proved false.
Mr. Sullivan faced allegations of perjury for 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, a lawyer 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 adviser” 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 Mr. Durham will encourage more politically motivated criminal investigations by not bringing prosecutions.
“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 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 Barr, a Trump nominee who headed the Justice Department when charges were declined, did not respond to a request for comment. Mr. Barr 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 for suspected wrongdoing.
Mr. Comey leaked the memos, which were classified as confidential, to his attorneys and a friend who later shared them with The New York Times.
Distributing confidential government information is a crime, but the memos were labeled “confidential” after the chain of events that led to their publication in the press.
Mr. Horowitz referred Mr. McCabe to the Justice Department for criminal charges stemming from inaccurate statements to FBI investigators looking into leaks to the media around the time of the 2016 election.
Attorneys for Mr. McCabe were told in September 2019 that he should expect an indictment after an inspector general’s report concluded that he misled officials about authorizing disclosures related to the FBI’s investigation 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 investigation, criminal charges would exert pressure for cooperation. Former special counsel Robert Mueller filed charges against roughly a half-dozen Trump associates to secure their cooperation in his investigation.
Mr. Durham’s investigation was hamstrung when several key officials declined to be interviewed.
The report shows Mr. Durham interviewed Mr. Sullivan in November 2021 and Mrs. Clinton and her campaign chairman, John Podesta, in May 2022.
Mr. Comey, Mr. McCabe and senior FBI counterintelligence official William Priestap all turned down interviews. Peter Strzok, a senior FBI official, agreed to discuss a small aspect of the investigation 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.
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