Durham's Report Exonerates Trump But Indicts Never-Trumpers
The Obama administration employed a double standard favoring Hillary Clinton but damning Donald Trump and the rule of law.
Donald Trump. Credit: Gage Skidmore, Wikimedia.
The Durham report documents the double standard employed by the Obama administration in favor of Hillary Clinton. No surprise there. But it also documents a special double standard employed by Democrats and some Republicans specifically against former President Donald Trump.
On the Clinton double standard, Durham points to "highly significant intelligence" received "from a trusted foreign source pointing to a Clinton campaign plan to vilify Trump by tying him to Vladimir Putin so as to divert attention from her own concerns relating to her use of a private email server." He then concludes that "unlike the FBI's opening of a full investigation of unknown members of the Trump campaign based on raw, uncorroborated information, in this separate matter involving a purported Clinton campaign plan, the FBI never opened any type of inquiry, issued any taskings, employed any analytical personnel, or produced any analytical products in connection with the information."
The FBI applied a completely different standard to the Trump campaign, opening a full-scale criminal investigation, despite the absence of "any actual evidence of collusion" between that campaign and Russia. "Indeed, based on the evidence gathered in the multiple exhaustive and costly federal investigations of these matters, including the instant investigation, neither U.S. law enforcement nor the Intelligence Community appears to have possessed any actual evidence of collusion in their holdings at the commencement of the Crossfire Hurricane Investigation."
Durham criticized the FBI for failing to take the usual precautionary steps before opening the investigation. They failed to employ "any of the standard analytical tools typically employed by the FBI in evaluating raw intelligence," including "interviewing" relevant, witness, reviewing its own intelligence databases" and other routine measures.
The report also documents the special animus toward Trump "at least on the part of certain persons intimately involved in the matter." There was what Durham calls "a predisposition to open an investigation into Trump."
This animus was not limited to partisan Democrats. Many Republicans and independents shared the view that Trump was uniquely dangerous to national security and that anything that could be done to prevent his presidency should be done, regardless of the evidence and lack thereof.
This view continues today among many Trump haters. They don't need evidence of what he has done or not done. They know who he is! And that's enough to justify any means to "get" him.
In my book Get Trump, I reach many of the same conclusions reached by Durham, and I extend them to the current investigations designed to prevent or weaken his candidacy. Both in 2016 and now, law enforcement officials who believe that Trump poses a unique danger to American democracy have themselves been willing to endanger our rule of law, by distorting the facts, stretching the law and ignoring the Constitution—as long as it applies to Trump.
But such compromises of important principles never apply only to one person. They establish precedents that can then be applied to others. As H.L. Menken cautioned, "The trouble about fighting for human freedom is that you have to spend much of your life defending sons of bitches: for oppressive laws are always aimed at them originally, and oppression must be stopped in the beginning if it is to be stopped at all."
The report provides no road map to avoid repetition of the mendacious, and sometimes illegal, vendetta of documents. Reform will not be easy, because the bias that created the Russia investigation was often subtle, if not invisible. The obvious bias expressed by one particular agent – Peter Strzok – was unusual in its visibility, because he reduced it to writing.
It will also be difficult to reform the FBI because many law enforcement officials think that what they did—and are continuing to do—is the right thing: stretching the law to fit the weak facts. Just look at what the N.Y. District Attorney Alvin Bragg is doing to Trump now: making up crimes in order to keep his campaign promise to get Trump.
The Durham report should be required reading for Bragg and all other law enforcement officials who believe it is their job to get Trump, by hook or by crook.
Already some Get Trumpers are criticizing the report, often without even reading it, because it author was appointed by the Trump administration. Of course, they would be praising it and its author's many years of experience as a non-partisan prosecutor if the Report had favored the Democratic narrative. Most of its conclusions are based on hard evidence that is hard to discredit.
Its findings should be studied by all Americans who care about applying a single standard of justice, regardless of party or personality. It has never been more important, in our deeply divided nation, to guarantee that the law will be applied equally to all.
The Durham Report is a small but essential step on the right direction.
Alan Dershowitz is professor emeritus of Harvard Law and author of Get Trump: The Threat to Civil Liberties, Due Process, and Our Constitutional Rule of Law.
Follow Dershowitz on Twitter @AlanDersh and Facebook @AlanMDershowitz. His new podcast, "The Dershow," is on Spotify, Apple Podcasts, and YouTube
Dersh.Substack.com. The views expressed in this article are the writer's own.
See Forbes Magazine interview with Dershowitz here.