Washington Wednesday: The Durham report

MARY REICHARD, HOST: It’s Wednesday, May 17th, 2023.

Glad to have you along for today’s edition of The World and Everything in It. Good morning, I’m Mary Reichard.

NICK EICHER, HOST: And I’m Nick Eicher. Time now for Washington Wednesday.

The Durham Report was released on Monday after a years-long probe of the FBI’s handling of allegations of collusion between candidate Donald Trump and the government of Russia.

Special Counsel John Durham led the investigation into potential misconduct in the FBI’s probe. He found much to criticize, although not a lot of new revelations.

Former Attorney General William Barr appointed Durham in 2020 as Special Counsel. His job was to look into possible misconduct within the Justice Department.

And the report concludes that the Russia probe was hastily launched based on highly questionable information that the FBI did not do its due diligence and that some within the bureau may well have had political motivations.

Senator Ron Johnson—Republican from Wisconsin—spoke with FOX news Monday:

RON JOHNSON: In 2016, it was the Clinton campaign working with the FBI to go after President Trump in his election, his campaign in 2020. It was 51 former CIA agents and Intel officials working with the Biden campaign to do the same thing. So we've seen it twice. The same objective to go after President Trump and keep him from being president.

REICHARD: Durham’s investigation resulted in three indictments over alleged wrongdoing within the DOJ. But two of those charged were later acquitted.

Defenders of the Russia probe say that’s a far cry from the major crimes former President Trump predicted the Durham probe would reveal.

Nevertheless, why don’t these revelations rise to criminal conduct? GOP California Congressman Doug LaMalfa raised the question many are asking:

DOUG LaMALFA: So what do we do to put at least the confidence of the American people back into the upper echelons of the Department of Justice and the FBI? So that we don't have to think that they're going to be doing this sort of thing to anybody they disagree with politically, on top of what we just saw. Indeed, how do we regain trust?

EICHER: How to regain trust? Here to talk about that and more about the Durham report is Bobby Higdon, who has decades of experience in federal law enforcement. He’s now a lawyer in private practice in Raleigh, North Carolina. In government service, he was U.S. Attorney for the Eastern District of North Carolina, and before that, he served 24 years as Assistant U.S. Attorney.

REICHARD: Good morning.

BOBBY HIGDON: Good morning.

REICHARD: What’s the bottom line of the Durham report? I know I’m asking for a lot given it’s 306 pages and it took four years to complete. But what would be your brief summary?

HIGDON: Well, my brief summary would be an unbelievable concern about the FBI’s failure to live up to its nonpartisan fact-based, law-based obligation to the American people. And I think that's a concern that ought to really resonate with every American, it is a very disturbing report.

REICHARD: The report is organized into several sections, the first category being FBI policies. Things like principles of federal prosecution, how the FBI assessed and investigated counterintelligence matters, things like that. What strikes you about that section?

HIGDON: Well, when you look at section 1, really what the report is saying is that the FBI failed to find and develop proper predication for its investigation. In other words, they didn't have sufficient facts to even begin to investigate in the manner that they did. And that's required in every federal investigation, regardless of the scope or the importance or who the target is. Is that any investigative agency must have some level of predication—in other words, you need to have evidence and information…that you find reliable to base your investigation on because in this country, we don't go around and investigate people, we investigate crimes. So you need to have some basic set of facts to give you the reason to launch an investigation. So that's the first to me, that's the first and most important takeaway from that section.

REICHARD: And then Section two is on background facts and prosecution decisions.

HIGDON: Well, what they seem to be saying in that section is that as that investigation developed—from the beginning—that there was inadequate predication. That the facts were not sufficient to launch it. But that as they developed additional evidence, they developed it from questionable sources, that being a political opponent. And that's always a very suspect source, because anyone that's engaged in political activity, you know, has a motivation to harm the other side. And so you have to be even more careful when that's the source of your information. And the report talks about the absolute failure to develop independent verification of the information that was being provided by the campaign. And so there again, the FBI is not conducting the investigation in the normal way. And that is testing the facts and information that are provided to you, and only moving forward when you have verified and have reached some level of certainty that those facts are reliable. And it talks about in the report that there were people that admitted, as they moved forward, they did not believe that there was sufficient basis to take that next step because they didn't believe the evidence was reliable.

REICHARD: Section two also talks about the disparate treatment at the hands of the FBI between Donald Trump and Hillary Clinton. What do you think about that?

HIGDON: Well, you know, I don't have a lot of visibility into those two investigations. But it appeared from…as you watch what's happening with respect to those two investigations, that the Clinton investigation was very carefully reviewed by the FBI. In fact, they provided Secretary Clinton an opportunity to participate in the investigation. Her attorneys negotiated. They provided evidence and information and the FBI reviewed that and made certain judgments about that. According to this report, none of that was provided to President Trump, or to members of his campaign. Everything was done clandestinely, which is not unusual, but it is not the same level of interaction that was provided to Secretary Clinton. It was a very different way of handling this.

REICHARD: Talk now about about Carter Page would you? I’m interested in Page and his FISA application, the Foreign Intelligence Surveillance Act. At the time, Page was Trump’s foreign-policy adviser for the presidential campaign in 2016.

HIGDON: Well, what the report talks about is the fact that that was one of the initial things that was done was they developed a request for the FISA court and went to the court to seek opportunity, the authority to basically intercept communications. And the FISA court is a court that conducts business in secret. It…only prosecutors and investigators go before that court. So there's no opportunity to challenge that. And so there is really a heightened responsibility to make sure that the information you bring to that court is reliable. And what the report says is from the beginning, that the FBI knew that that information they were putting in front of the FISA Court was not reliable. And so you've got multiple levels of concern here: you've got the FBI not conducting business the way it should be conducting it according to the law, and then doing so in front of a clandestine court that has to rely on them to make sure that the information is in fact reliable, and it wasn't in this case. So it's just there's multiple levels of concern here about the FBI’s ability to really reach into the private lives of Americans, and in this case, in the context of a political campaign, so the concerns are even more heightened.

REICHARD: Now on to the section of general observations and the conclusion of the report. I’m looking at the last page, quoting now: “It seems highly likely that at a minimum confirmation bias played a significant role in the FBI’s acceptance of extraordinarily serious allegations, derived from uncorroborated information that had not been subjected to the typical exacting analysis employed by the FBI and under other members of the intelligence community.” Bobby, isn’t the FBI supposed to corroborate information with exacting analysis?

HIGDON: Now, that's exactly what it's supposed to do. And it's very important that the FBI and federal prosecutors, that they set aside their own opinions, their own bias and that they review matters and just with the cold hard look at the facts in the law, and what they're suggesting here. What they're saying here is that the FBI relied on information because it was what it wanted to hear, at least those individuals that are participating in the investigation. It was consistent with their preferences, thereby as their political opinions, and that that's really improper. And I'll tell you that in all the years I've spent with the Justice Department, I saw many, many investigators and prosecutors very carefully set aside their own opinions and review matters in a dispassionate way. Because they knew and understood that it would be improper to do anything otherwise. And that's what was not done here, apparently.

REICHARD: I want to ask you about public confidence. It was on the last page of the Durham Report quoting former Attorney General TK Levi: "Nothing can more weaken the quality of life or more imperil the realization of the goals we all hold dear than our failure to make clear by words and deed that our law is not the instrument of partisan purpose." So my question to you is how can the DOJ and FBI regain public trust after this all of this?

HIGDON: Well, my answer is probably similar to what members of Congress are saying. There is going to have to be a real review of the leadership of the FBI, and I don't have any particular person in mind. But those that were involved in this undertaking, that led this investigation, that approved this investigation, and participated in it, in my mind, cannot continue in leadership and work with the FBI. I just don't know how that's possible. And unless and until there are significant personnel changes made in the FBI, I don't know that the American people can or should have confidence in the leadership of the FBI.

And I have felt that way for the last, you know, four or five, maybe longer years, because I'll tell you, I even was concerned in the when the Clinton investigation was going on that you had the director of the FBI publicly expressing opinions about whether the investigations showed wrongdoing or didn't show wrongdoing, as to Secretary Clinton. That to me was wrong, whether she's running for office or not, but he was particularly wrong in the context of an ongoing political campaign. And so I have felt uncomfortable about decisions made by the FBI going back to even then because those that's not the way the FBI should do business.

REICHARD: Robert Higdon is a former federal prosecutor now in private practice in North Carolina. Robert, thank you so much.

HIGDON: Thank you. My pleasure.

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