Professor Buzz Scherr dives into The Durham Report, covering the 2016 Trump v. Clinton election points of contention and the FBI's missteps working around politics. Produced and Hosted by A J. Kierstead
Read the full Durham Report: https://www.justice.gov/storage/durhamreport.pdf
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A. J. Kierstead, Host:
This is The Legal Impact, a podcast presented by the University of New Hampshire Franklin Pierce School of Law. Now accepting applications for JD and graduate programs. Learn more and apply at law.unh.edu. Opinions discussed are solely the opinion of the faculty or host, and do not cost to legal advice or necessarily represent the official views of the University of New Hampshire and UNH Franklin Pierce School of Law. I'm your host, A.J. Kierstead, and today I'm joined by Professor Buzz Scherr, Director of the International Criminal Law & Justice Program. Learn more about it at law.unh.edu/iclj. Welcome back to the show.
Professor Buzz Scherr:
Great to be back.
A. J. Kierstead, Host:
Last month there was a report that came out to United States Department of Justice Office of the Special Counsel John Durham's 316 page report on matters related to intelligence activities and investigations arising out of the 2016 presidential campaigns. For starters, you can tell a political operator didn't write the title of the report, so that maybe helps with the validity of the report. All right. Joking aside, it's very in-depth. It covers a lot, but let's start off with a baseline with what is the role of a special counsel, because it is something I'm guessing that doesn't happen terribly often at the federal level like this.
Professor Buzz Scherr:
It's a version of a special prosecutor appointed to investigate a particular issue that may or may not involve criminal charges. The most famous special counsel was Ken Starr, who spent ungodly amount of money and ungodly amount of time investigating the Clintons and Whitewater to no effect in the end. But that's an example. It's a way to, for whoever appoints the special counsel, in this case, it was Attorney General William Barr to insulate himself from accusations of politics.
A. J. Kierstead, Host:
It's especially important when you're talking the executive branch with this because William Barr's appointed by President Trump at the time and is investigating this thing that ultimately Barr was part of because he was part of Trump's campaign.
Professor Buzz Scherr:
Yeah, that's true. So it creates the impression that that's going to be an objective investigation. The investigation was really an investigation of an investigation is the best way to put it. It was an investigation of the FBI's investigation of potential contacts between the Trump campaign and Russia that occurred during the campaign for the 2016 presidential election campaign. There was accusations that it was inappropriate for the FBI to be investigating. That said, when Durham was initially appointed, I think Trump said that he will reveal the greatest crime in history, I think was his comment. Of course, some may believe that he is prone to exaggeration, but that's what it was investigating. There was allegations that it was inappropriate for the FBI to be investigating Trump.
A. J. Kierstead, Host:
This didn't entirely come out of nowhere because there was lead up with was Lisa Page and Peter Strzok and such had information released before this investigation started happening, right?
Professor Buzz Scherr:
Yeah. It turns out that wasn't all that important. But yeah, I mean there was concerns about it. So I think it was in 2019, Trump appointed John Durham to investigate. Yeah, Durham was a long-time experienced prosecutor.
A. J. Kierstead, Host:
Leading up to the 2016 election also, I mean, the FBI was already in the spotlight when it came to both sides of the political aisle with James Comey and everything involving the Clinton investigations. Then you start hearing all these rumblings around the FBI was investigating Trump and all these things. Was it correct that it was happening? It wasn't a huge surprise to me personally to see that special counsel get appointed to really dive into this, and after 300 something pages, it seems like there was plenty to investigate.
Professor Buzz Scherr:
Well, I would say after 316 pages, there was plenty to talk about, but it turned into pretty much a nothing burger, that is FBI, the Justice Department Inspector General did an investigation of the investigation back after the election and drew a number of conclusions, made a bunch of recommendations about the sloppiness of the FBI in politically sensitive investigations. The FBI implemented a good number, I think almost all those recommendations. So there's not that much in the Durham report that goes beyond what was in the DOJ Inspector General report. There's some things Durham report recommends that there be a position in the FBI to advise the FBI on politically sensitive investigations. There's that.
There's a criticism of the FBI for relying on raw intelligence, that is uncorroborated intelligence, although that was talked to some extent about in the DOJ Inspector General report. That's an additional piece to it, and also said that the FBI shouldn't have started a full investigation when it got the initial information, which was an Australian diplomat contacted the FBI and said this guy named George Papadopoulos, who was "involved" in the Trump campaign. Now, Trump says he was like a coffee guy, but he was involved in the Trump campaign and he made some representations about contact with Russia. The Australian diplomat was concerned about that and referred it to the FBI. The Durham report says it was appropriate for the FBI to investigate, but they should have just started a preliminary investigation, not a full investigation. So that was one of the criticisms. So what you get in the Durham report is additional nuance in terms of its recommendations as to how to improve things.
But I think the expectation on some, particularly those thought favorably of then President Trump, was that would reveal a tremendous Democratic bias in the FBI's investigation. That's not really the case. I mean, the FBI, let's assume they made some mistakes in the Russia investigation, although there certainly was plenty of evidence that Trump campaign had contact with people from Russia. But putting that aside, let's assume the FBI made some mistakes in that investigation, there's an argument to be made, and some Democrats would say, "Yeah, the biggest mistake the FBI made in 2016 presidential campaign was a few days before the election going public and saying, "We're going to investigate Clinton again."
A. J. Kierstead, Host:
So it's really-
Professor Buzz Scherr:
An equal opportunity political bias, for lack of better way of putting it.
A. J. Kierstead, Host:
It seems just like a lot of just very poor leadership or management of the department really comes down with a lot of the critiques that have come through in the Durham report, the Mueller report, just a PR nightmare that ended up coming up from all this more than anything else because they kind of fell into 15 million political traps, whether it's... I mean, the Steele dossier is brought up in the Durham report also, which was entirely politically motivated, uncorroborated bunch of stuff that was just put in and funded by the Democrats.
Professor Buzz Scherr:
Their investigation, the Steele dossier revealed that it was basically junk in the Steele dossier. So their end results ended up being fine in all the things they investigated. They were just really messy and sloppy about it. The ironic thing is, depending on what political side one is on, we like to think Trump thinks the FBI is filled with Democratic operatives, and Clinton felt the FBI was out to get her. The FBI probably, my anecdotal experience is there's probably more Republican FBI agents and people in the hierarchy of the FBI than there are Democrats. But by and large, the FBI has not been politically oriented. In its own kind of bureaucratic way, it has been relatively neutral. It's screwed Hillary Clinton and it screwed Donald Trump, probably Clinton more than Trump. There's some who argue that what Comey said a week or two before the election made more of a difference in the election than anything that was said or done about the Trump investigation.
A. J. Kierstead, Host:
Yeah, it seems like on the public facing, it was really, really messed up when it came to the way they handled the Democrats, but on the back end with a lot of these investigations and stuff, they really were doing some weird stuff when it came to the Republicans. So it seems like there's an across the board issue when it comes to how this department's operating.
Professor Buzz Scherr:
All that said, they're not good at politically sensitive investigations.
A. J. Kierstead, Host:
Right.
Professor Buzz Scherr:
It's fair to say that those are hard investigations, because there's this debate over you want to be as transparent as possible, but you don't want to go public too early with any investigation, politically sensitive or not, because it can screw up what witnesses say. You don't want to have a effect on a political race if the investigation is occurring during a political race. The last thing you want to do is have what you do have enough effect on the outcome of an election. So it's a bundle of difficulty. You would think they would've figured it out by now.
But that said, and right now, Republicans, particularly the Republican House Oversight Committee, they are trying to investigate and figure out how they can establish that the FBI is all they care about are getting Democrats elected. I just don't think the FBI's that way. They may be blundering fools in handling politically investigations, but they're not biased blundering fools.
A. J. Kierstead, Host:
Yeah. I mean, it seems like it's an inherent issue of being a law enforcement agency under the federal government that deals with government appointees that is held accountable by Congress. It's inevitable at one point or another, they're going to get hit by a political party in power. I mean, you look over the history of the FBI when it comes to various other... the CIA's in the same boat. It is very similar with that, where at some point they're going to get nailed. Someone's going to make a mistake, it's going to make a huge splash because they stepped on a political landmine.
Professor Buzz Scherr:
Yeah. Both the CIA and the FBI are easy targets. God knows they're not perfect. I mean, the history of the FBI, and it's for the majority of its existence, was run by J. Edgar Hoover, who was a petty tyrant of the highest order. He would blackmail both Republicans and Democrats. He was equal opportunity blackmailer. But there's a long history at the foundation or the founding of the FBI, and going forward for many years, unfortunately, of them... we didn't know about at the time, but not handling political sensitive investigations well, of trying to take advantage of them. That's what J. Edgar Hoover really tried to take advantage of politically sensitive investigations to the benefit of the FBI.
I mean, that's the long history of the FBI, and it's only after J. Edgar Hoover died in the, I can't even remember when, the '70s maybe that the FBI's been coming out from under that cloud. But as a general matter, FBI agents are by the book people. They generally speaking are just the facts, ma'am people. The agency itself is more than a little arrogant. The relationship between most local law enforcement agencies in the FBI is never good, because the FBI, when they get involved, they just come in and push people around and think they're great. I mean, that's their reputation within law enforcement. They're a bunch of arrogant people, but they're competent except for politically sensitive investigations. They still haven't figured that out.
A. J. Kierstead, Host:
Here as part of UNH Franklin Pierce School Law. We've got a criminal justice law program, things like that. I mean, what are some ways that maybe those that I know the International Criminal Law & Justice program is partnered with the FBI, and AA, I believe is the name of the organization, in making sure that law enforcement gets the training they need in order to handle very complex situations. I mean, what are some things that agents or leadership maybe should consider to make sure they're not stepping on as many landmines? Is it more training? Is it being more aware of political systems?
Professor Buzz Scherr:
Yeah. It's outside training. It's not training by inside people or training by people who used to be FBI agents. It's training by people who have a very different perspective so that it forces them to kind of sit back and take a different kind of look at what they do. I think that the Durham report recommendation of having somebody whose job it is to, oversee is the wrong word, but to counsel as to politically sensitive investigations. They're just difficult things. As I described before, they're just difficult beasts to handle. The FBI's not used to that, so they need to develop procedures for that, better procedures for that, and they need to have somebody who is an outsider chirping in their ears saying, "You may think that's the case, but here's how it's going to be viewed by other people, the general public or by one party or another."
That's the kind of thing that needs to be done. Personally, I think the Durham report was four years, over 6.5 million bucks, over a million documents generated. They did 480 interviews. They did seven search warrants. They had 160 subpoenas issued by grand juries. I wasn't worth it. Just like the Ken Starr investigation back in the late 20th, early 21st century was not worth it. I mean, he spent an ungodly amount of money and it came to nothing other than a lurid report. I have little doubt that William Barr, Attorney General Barr appointed Durham to get Trump off his back. I think that's why he appointed him. I don't know whether Barr's expectation was that anything would come out of it.
Barr was very critical of the James Comey investigation. Of course, Barr has his own issues with the Comey investigation because he startlingly mischaracterize the results of the Comey investigation when he translated it for the general public. So there's this bundle of junk related to all the investigations, the 2016, what was going on during this 2016 presidential election. Maybe this'll put it to rest. All of it came to nothing.
A. J. Kierstead, Host:
We got to move on at some point.
Professor Buzz Scherr:
Yeah. There's one guy who pled guilty to altering an email. That was the extent of the Durham investigation. Two other people were found not guilty after trial, and all of the charges for those three were very minor, of low significance, minor charges. It's insulation to have these special counsels. Sometimes it's political insulation, sometimes it's insulation that protects an agency like the FBI from unfair characterizations.
A. J. Kierstead, Host:
Professor Buzz Scherr, Professor of Law, thanks so much for joining me.
Professor Buzz Scherr:
My pleasure.
A. J. Kierstead, Host:
Learn more about the International Criminal Law & Justice Program at law.unh.edu/iclj. Thanks for listening to The Legal Impact presented by UNH Franklin Pierce School of Law. To [inaudible 00:18:18] word about the show, please be sure to subscribe and comment on your favorite podcast platform, including Apple Podcasts, Google Podcast and Spotify. Get the back episodes of the show and podcast links at law.unh.edu/podcast.
