John Durham Has Unaltered Copies of the Documents that Got Altered in the Flynn Docket

Bill Barr could come to regret his neat effort to place a ticking time bomb inside the Joe Biden DOJ, because John Durham has evidence in hand that Bill Barr’s DOJ tampered with documents.

I’ve been thinking … There’s something that doesn’t make sense about Bill Barr’s roll-out of the order making John Durham a Special Counsel. For the better part of a year, Barr has been saying that Durham could roll out actual indictments before the election, since none of the people he would indict were candidates. Yet Barr claimed, in his order, that he decided (not Durham) that, “legitimate investigative and privacy concerns warrant confidentiality” until after the election. And then he waited almost an entire month before he revealed the order. He did so in spite of adopting 28 CFR 600.9, which otherwise requires notice to Congress, to govern this appointment.

Let me interject and say that while Barr’s appointment of a DOJ employee, US Attorney John Durham, violates the Special Counsel statutes, that’s not the authority under which Barr appointed Durham. He did so under 28 USC 509, 510, 515, which is what Mueller was technically appointed under. Thanks to the Mueller investigation and some well-funded Russian troll lawyers, there’s a whole bunch of appellate language authorizing the appointment of someone under 28 USC 515 but governed under 28 CFR 600.9. The unusual nature of the appointment would provide President Biden’s Attorney General an easy way to swap Durham for Nora Dannehy (who as a non-departmental employee would qualify under the Special Counsel guidelines), and given her past involvement in the investigation, it should suffer no loss of institutional credibility or knowledge. But it doesn’t damage Durham’s legal authority in the meantime.

Barr probably lied about the significant reasons to delay notice to Congress. According to the AP, Durham is no longer focused on most of the scope he had been investigating, to include George Papadopoulos’ conspiracy theories and GOP claims that the CIA violated analytic tradecraft in concluding that Vladimir Putin affirmatively wanted Trump elected. He is, according to someone in the immediate vicinity of Barr, focused just on the conduct of FBI Agents before Mueller’s appointment, even though the language of this appointment approves far more.

The current investigation, a criminal probe, had begun very broadly but has since “narrowed considerably” and now “really is focused on the activities of the Crossfire Hurricane investigation within the FBI,” Barr said. He said he expects Durham would detail whether any additional prosecutions will be brought and make public a report of the investigation’s findings.


A senior Justice Department official told the AP that although the order details that it is “including but not limited to Crossfire Hurricane and the investigation of Special Counsel Robert S. Mueller III,” the Durham probe has not expanded. The official said that line specifically relates to FBI personnel who worked on the Russia investigation before the May 2017 appointment of Mueller, a critical area of scrutiny for both Durham and for the Justice Department inspector general, which identified a series of errors and omissions in surveillance applications targeting a former Trump campaign associate.

The focus on the FBI, rather than the CIA and the intelligence community, suggests that Durham may have moved past some of the more incendiary claims that Trump supporters had hoped would yield allegations of misconduct, or even crimes — namely, the question of how intelligence agencies reached their conclusion that Russia had interfered in the 2016 election.

We know from the Jeffrey Jensen investigation and documents Barr otherwise released where Barr thought John Durham was heading. There are questions about who knew about credibility problems of Christopher Steele’s primary source Igor Danchenko (though the GOP has vastly overstated what his interview said, ignoring how much of the dossier it actually corroborated, Danchenko’s later interviews, and FBI’s later interviews of one of his own sources). There are some analysts who questioned the viability of the investigation into Flynn; it appears they asked to be removed from the team.

And Jensen, at least, seemed to want to claim that Peter Strzok got NSLs targeting Flynn in February and March 2017 that he had previously refused to approve. Someone seems to have convinced Flynn investigative agent Bill Barnett that those NSLs, which were lawyered by Kevin Clinesmith, were illegal, but given the predication needed for NSLs that seems a wild stretch. Plus, it would be unlikely (though not impossible) for Durham to indict Clinesmith without a Durham-specific cooperation agreement before if he believed Clinesmith had committed other crimes. I mean, it’s possible that Clinesmith, under threat of further prosecution, is claiming that mere NSLs are illegal, but I’d be surprised. Not least because after these NSLs, Strzok worked hard to put a pro-Trump FBI Agent in charge of the Flynn investigation.

Occam’s razor suggests that Durham asked for the special counsel designation because he wants to be permitted to work through these last bits and finish up the investigation, along with the prior authority (which Mueller did not have) to publish his findings.

Occam’s razor also suggests that the reason Barr didn’t reveal this change of status until this week has everything to do with pressure from Trump and nothing to do with investigative equities and everything to do with using this investigation like he has all of his US Attorney led investigations, as a way to placate Trump. Trump has reportedly been complaining that Barr didn’t do more to undermine the election, and so he rolled this out as a way to buy space and time.

Axios reports that it may not work. Trump might fire Barr and replace him with someone who would order that Durham report right away.

Behind the scenes: Within Trump’s orbit, sources told Axios, Tuesday’s revelation was seen as a smokescreen to forestall the release of the so-called Durham report, which senior administration officials believe is already complete — and which Barr had ruled out issuing before the election.

  • Another senior administration official disputed that assessment, saying: “The reason the Attorney General appointed John Durham as Special Counsel is because he’s not finished with his investigation,” and that Barr “wanted to ensure that John Durham would be able to continue his work independently and unimpeded.”
  • Trump has been ranting about the delay behind the scenes and mused privately about replacing Barr with somebody who will expedite the process. But it’s unclear whether he will follow through with that, per sources familiar with the conversations.
  • Barr met with White House chief of staff Mark Meadows and other officials in the West Wing Tuesday afternoon.

Except that doesn’t work. If Trump were to name John Ratcliffe Acting Attorney General (he’d be the perfect flunky for the job), he would be powerless to force Durham to report more quickly. Sure, he could fire Durham, but he’d have to provide notice to Congress, and there’s virtually no remedy Congress would or could offer in the next 48 days. Ratcliffe can’t write a report himself. And the people doing the work for Durham aren’t DOJ employees, so firing them would do nothing to get a report. For better and worse, Barr has ensured that Ratcliffe or whatever other flunky were appointed could not do that, at least not in the 48 days before such person would be fired by President Biden.

Again, Ockham’s Razor suggests that Durham will finish his work and write a public report debunking the Papadopoulos conspiracies, confirming that CIA’s analytic work was not improper, and otherwise concluding that Kevin Clinesmith’s alteration of documents was the only crime that occurred.

More importantly, there’s a problem with Axios’ report, that “Barr had ruled out issuing a report before the election,” and that’s what makes this special counsel appointment more interesting. Barr tried to force Durham to issue a report before the election. That led Durham’s trusted aide Nora Dannehy to quit before September 11, thereby seemingly creating the need for a special counsel designation at that point.

Federal prosecutor Nora Dannehy, a top aide to U.S. Attorney John H. Durham in his Russia investigation, has quietly resigned from the U.S. Justice Department probe – at least partly out of concern that the investigative team is being pressed for political reasons to produce a report before its work is done, colleagues said.


Colleagues said Dannehy is not a supporter of President Donald J. Trump and has been concerned in recent weeks by what she believed was pressure from Barr – who appointed Durham to produce results before the election. They said she has been considering resignation for weeks, conflicted by loyalty to Durham and concern about politics.


The thinking of the associates, all Durham allies, is that the Russia investigation group will be disbanded and its work lost if Trump loses.

And Barr himself had, for months, been saying that he would shut down Durham if Trump lost. Yet here we are, after the election, learning that Barr has provided Durham additional protections.

That’s all the more interesting given what Barr did after Dannehy quit in the face of pressure to issue some kind of report before the election. First, he gave a screed at Hillsdale College that pretty clearly targeted Dannehy, among others. Then, Barr attempted to let Jeffrey Jensen release an interim Durham report himself.

Less than a week after Dannehy quit, Jensen’s team interviewed Bill Barnett, someone who would be a key witness for any real Durham investigation of early actions by the FBI. The interview was clearly a political hack job, leaving key details (such as the role of Flynn’s public lies about his calls with Sergey Kislyak in the investigation) unasked. Barnett’s answers materially conflict with his own actions on the case. He was invited to make comments about the politicization of lawyers — notably Andrew Weissmann and Jeannie Rhee — he didn’t work with on the Mueller team. And he claimed to be unaware of central pieces of evidence in the case.

It took just a week for the FBI to write up and release the report from that interview, even while DOJ still hasn’t released a Bill Priestap interview 302 that debunked a central claim made in the Flynn motion to dismiss. And the interview was released in a form that hid material information about Brandon Van Grack’s actions from Judge Sullivan and the public.

But that’s not all. A day earlier prosecutor Jocelyn Ballantine sent five documents to Sidney Powell:

  • The altered January 5, 2017 Strzok notes
  • The second set of altered Strzok notes
  • The altered Andrew McCabe notes
  • Texts between FBI analysts
  • A new set of Strzok-Page texts, which included new Privacy Act violations

All were packaged up for public dissemination, with their protective order footers redacted. There were dates added to all the handwritten notes, at least one of which was misleading. The Strzok-Page texts were irrelevant and included new privacy violations; when later asked to validate them, DOJ claimed they weren’t relying on them (which raises more questions about the circumstances of their release). There’s good reason to believe there’s something funky about the FBI analyst texts released (indeed, as politicized as his interview was, Barnett dismissed the mistaken interpretation DOJ adopted of their meaning, that the analysts were getting insurance solely because of the Russian investigation); DOJ made sure that the identities of these analysts was not made public, avoiding any possibility that the analysts might weigh in like Strzok and McCabe did when they realized their notes had been altered.

One of those alterations would come to serve as a scripted Trump attack on Joe Biden in their first debate. In a September 29 hearing, Sidney Powell admitted meeting regularly with Trump campaign lawyer, Jenna Ellis, and asking Trump to hold off on a Flynn pardon, making it clear that this docket gamesmanship was the entire point.

And then, on October 19, Durham got Barr to give him the special counsel designation that would give him independence he had not had during 18 months of Barr micromanagement and also ensure that he could remain on past the time when Barr would be his boss.

Days later, on October 22, DOJ wrote Sidney Powell telling her they were going to stop feeding her with documents she would use to make politicized attacks.

Let’s assume for a minute that Durham was, in good faith, pursuing what the FBI was doing in the spring of 2017, an inquiry for which Barnett was a key — and at that point, credible — witness. That investigation was effectively destroyed with the release of the politicized Barnett interview report. Any defense attorney would make mincemeat of him as a witness.

Which is to say that Barr’s effort to let Jensen release the things that Durham refused to before the election damaged any good faith investigation that Durham might have been pursuing. And that’s before DOJ got caught altering documents, documents for which Durham has original copies. It’s not clear whether Durham is watching this docket that closely, but if he is, he knows precisely what, how, and to what extent these documents have been altered. And he probably has a good sense of why they were released in the way they were.

Again, Ockham’s Razor says that Durham will just muddle along and after a delay release a report saying he found nothing — which itself will be incendiary enough to the frothy right.

But by incorporating 28 CFR 600.4 into the scope of his special counsel appointment clearly allows him to investigate any attempts to interfere with his investigation.

federal crimes committed in the course of, and with intent to interfere with, the Special Counsel’s investigation, such as perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses;

It’s likely those pre-election antics did interfere with the investigation. And even if Durham hasn’t thought that through yet, it’s possible that Michael Horowitz will inform him of the details.

56 replies
  1. BobCon says:

    I’m curious whether Barr’s Fox News mindset has him paranoid that the Biden administration would do to Durham what Barr would do himself, which might lead him to appoint Durham as SC.

    I’m also wondering if Barr thinks he can spin any kind of reasonable request of Durham — top level status updates, budget reports – as illegal obstruction.

      • BobCon says:

        He’s already appointed — isn’t the question whether he should be fired?

        An early wide ranging housecleaning is probably necessary, and I am guessing it ought to happen before an AG nomination goes to hearings to reduce Senate GOP leverage — they can’t extract promises to keep people who are already sent packing.

        I don’t know if Durham needs to be a part of this housecleaning or if he is easy to neuter for legitimate reasons. But I do think if the GOP really wants him they should be forced to fight for him, and if so make concessions on other appointments.

        • Troutwaxer says:

          If he really does have the originals of altered documents he should be kept in office at least until those originals are secured.

  2. Ron Tenio says:

    Wouldn’t Mr. Durham’s promotion allow the next AG to truly get to the bottom of the criminal conspiracy issue by calling Trump, Flynn, Manafort, Kushner, Jr., Prince and Stone to testify under new perjury conditions? I would guess Barr would count that as win!

    [Welcome to emptywheel. The typo was corrected rather than approve another comment. /~Rayne]

    • John Langston says:

      That’s my thinking as well. How can this investigation be separated from Mueller’s or any continued exposure by the Trumpers after Trump’s term is done? Whether Durham runs the show or another Special Prosecutor, the investigation should go where the facts take them.

      So if Durham concludes there were legitimate reasons to begin the Russia investigation, and given public knowledge it’s hard to conclude otherwise, then the follow up from the Mueller investigation and any continued legal exposure would have to be investigated. By putting Durham in motion it would seem that the infrastructure is there to take the baton from Mueller. With pardons and a whole host of continued corruption from Ukraine to campaign funds there seems like lots to look at.

  3. Silly but True says:

    The appointing language suggested to me it the Durham Special Counsel investigation would be heading unto non-DoJ intel and cointel agency territory for which people might otherwise have told even a normal US Att’y “piss off, you don’t need to know.”

    Also, I wonder about Durham’s USA status in Biden Admin. USA’s have no special protections, and Special Counsel appointment doesn’t change this: they are POTUS appointees who serve at whim of POTUS and can be fired for any or no reason at all, and are routinely fired on Presidential and party changes.

    I suppose Biden can sack Durham as USA, and that removes Durham’s normal USA powers, but all the while Durham could separately remain in place as Special Counsel?

    Right now Durham wears two hats: USA for CT and Special Counsel. Sacking him as USA would just make him give up his USA hat, but he’d retain his Special Counsel hat?

    • emptywheel says:

      That’s why I suggest putting Dannehy in place first. She’s not a USG employee. She knows the investigation well. No one could claim that Biden was trying to thwart the investigation. Then fire Durham as US Attorney with everyone else.

  4. Peterr says:

    Which is to say that Barr’s effort to let Jensen release the things that Durham refused to before the election damaged any good faith investigation that Durham might have been pursuing. And that’s before DOJ got caught altering documents, documents for which Durham has original copies. It’s not clear whether Durham is watching this docket that closely, but if he is, he knows precisely what, how, and to what extent these documents have been altered. And he probably has a good sense of why they were released in the way they were.

    A couple of questions for the lawyers here:

    1) Assuming Durham has been following the Flynn case and the docket stuff around the DOJ altering documents, does Durham have a duty as “an officer of the court” to bring to the court’s attention the evidence in his possession that would be material to Sullivan’s future rulings on the DOJ’s motions and filings? “Your honor, I believe I have relevant information that may relate to a conspiracy to commit fraud against this court . . .”

    2) Turn it around – Let’s assume Sullivan has been paying attention to the goings-on with respect to Durham (which I’d say is likely, given that the DOJ is doing all manner of things to keep Sullivan in the dark on the Flynn case and all matters Russian). Would Sullivan be within his powers to sua sponte require Durham to turn over documents and/or come in for an on-the-court-record (but perhaps under seal) chat?

    • (Not That) Bill O'Reilly says:

      The answer to your first question is pretty clearly “no.” Durham is not admitted to practice in either the District of Columbia or before that federal district court, so he isn’t an “officer” thereof. If he were a member of the D.C. Bar, he might arguably have an obligation to report the DOJ attorneys practicing before Flynn for professional misconduct, but I’m not aware of any obligation he would have to Sullivan specifically to correct the record.

      As to your second question, I don’t see a jurisdictional hook for Sullivan to assert any authority over Durham specifically; however, since he has authority over DOJ within the scope of the matter, he can always direct the Department to turn over the records and require they obtain a sworn statement or something similar from Durham to authenticate them, but I’m not well-versed enough in the Special Counsel rules to know whether Durham would have to comply with such a request from DOJ, however.

  5. Silly but True says:

    Long before but certainly ever since VICE brought “unitary executive” theory into regular conversation, a power hungry White House has become dog-bites-man passe’.

    The real man-bites-dog in 2021 would be a Unitary Judiciary — or Unitary Legislative — claiming its own and full fundamental Constitutional powers.

  6. Bay State Librul says:

    It begs the question – Who will be the new AG? How about Adam Schiff to make Republicans squirm and go fucking nuts!
    Please not Deval Patrick, our soft-spoken ex-Gov of Mass

    • P J Evans says:

      I think he’s better in the House. Don’t take any more Dems out of Congress than absolutely necessary.

      • earlofhuntingdon says:

        I’ll repeat that advice to Joe Biden. Do Not hire Dems out of Congress for your administration unless absolutely necessary, and then, only when you have rock solid assurances about the quality of their replacement. Taking a Democratic Senator from a state with a GOP governor, for example, would be stupid beyond belief.

        • earlofhuntingdon says:

          No. Nor would Jeh Johnson, Tom Perez, Amy Klobuchar, or Sally Yates. Biden can do better. We deserve better.

            • earlofhuntingdon says:

              LOL. LBJ’s AG will be 93 in two weeks. He’s earned his retirement. But it illustrates how poorly the Dems manage their farm team. They need to up their game, and that starts by promoting a slew of new people to the 7000 or so political appointments he needs to make.

                • bmaz says:

                  LOL. It has been a while, but Mrs. bmaz’s parents once asked me why I didn’t just become a judge. I about keeled over.

                  First, I can’t picture a more boring job in the world. Second, even though I have a lot of judge friends, nobody would ever dream of appointing me to join them. Including me.

                  • vvv says:

                    Next best thing to [elected] judge in this IL jurisdiction (besides perhaps certain admin hearing officers) is [appointed or hired] arbitrator, which I do on occasion.
                    Not only is it mostly boring, but frustrating, also, when the attorneys are bad and the cases poorly presented.
                    The judges I’m encountering now on the Zoom calls have been amazingly patient and organized, but the pro se’s – oy vey! And I’m goyim.

    • my2cnz says:

      I heard rumors that Newsom might give Kamala Harris’s Senate seat to Schiff. Just a rumor, and I’ve no idea if that’s even possible.

      • P J Evans says:

        I got a survey, some weeks back (I can’t remember if it was jut before or just after the election) where they had a question on this, and the only choice I could make from the list was Hilda Solis, currently an L.A. county supervisor, but not inexperienced.

        • Troutwaxer says:

          She was also Secretary of Labor under Obama and spent eight years in the House. She’d be a pretty good Congress-person or Senator. (Why take Schiff away from his very important seat in the House when you can just appoint Solis directly to the Senate?

      • I Never Lie and am Always Right says:

        My money is on Alex Padilla. I seriously doubt that Adam Schiff is on the real short list. No matter who he picks, Gavin will make a number of people unhappy.

        What I’d like as a present this year is for DiFi to resign and give Gavin two picks. It ain’t gonna happen, though.

  7. greengiant says:

    Manafort, Black and Stone et all weaponized the combination of electioneering and lobbying. Per the Atlantic article for one.
    Lies and the alternate realities are the operative’s weapons. Someone started the Biden involved with Flynn lie. I don’t think it matters that the first date alterations may have been innocent notes. EW’s list of purposeful changes and redactions is a lot of corrupt work. In marketing and electioneering operatives run with the fake “facts”. In law, engineering, science and business running with fake “facts” is corruption. EW and bmaz remind us that Sullivan’s record on the Stevens’ case is a precedent for dealing with DOJ corruption in the Flynn case.

    Flynn’s and Powell’s only way out seems to be if Trump has another 4 years. Which would explain a lot of bad behavior.

  8. JVO says:

    Preet is a solid choice and on the short list. The short lists I’ve seen also include:

    Stacey Abrams
    Xavier Becerra
    Sen. Cory Booker
    Jeh Johnson
    Sen. Doug Jones
    Tom Perez
    Sen. Amy Klobuchar (please no)
    Sally Yates (would be my pick)

    • John Langston says:

      I’d go with Sally. She’s been my choice since Trump fired her. She has integrity and she’s fearless and smart.

      Of course when trolling the repubs, I’ll say Stacey Abrams.

      • bmaz says:

        Sally Yates would be one of the worst picks imaginable. Her record is fucking abysmal except that weak ass stand up to Trump for a couple of days. Do you folks even consider history other than little fleeting news bites?

          • bmaz says:

            Not the biggest fan of Preet, but honestly, he would be fine. Vanita Gupta would be fantastic. So would Chuck Rosenberg. Chuck was kind of a moderate Republican for a long time, but he would make a great AG. Frankly, David Kris would be wonderful, but friends of his tell me he does not want the job. If I got to choose, I’d probably pick Vanita or Rosenberg.

          • bmaz says:

            Because she is absolutely horrible on mass incarceration and clemency. If you desire actual criminal justice reform, Yates would be as about as bad a choice as could possibly be made.

            Let’s try this the other way around. Other than that one little three day period or whatever standing up to Trump, what has Yates ever done that excites you? Because there is absolutely nothing about her history that should.

            • Ginevra diBenci says:

              Chuck Rosenberg would serve as a high-stakes litmus test for GOP senators’ professed aversion to “partisanship,” as would Doug Jones; I wouldn’t put it past them, however, to suddenly care about “diversity” and “representation.” Gupta, of course, would face shrill charges of liberalism–which she can handle. I guess the question now is which Biden pick becomes the sacrificial lamb, and I would hate for Gupta to end up losing the stupid game of confirmation roulette.

      • Peterr says:

        Funny you should ask:

        “It’s only for a couple months,” Price is heard saying on the video as he encourages the crowd to join him. “We’ll have buses leaving right out here, going to Atlanta the day before Jan. 5 and I might need you guys to help me move back to Florida on Jan. 6.”

        In a phone conversation, Price admitted to Fox News that he had filled out the registration online but said he was doing it to expose Democrats who were trying to vote illegally.

        “I wanted to see how easy it was to do it,” he said. “I’m not actually moving to Georgia. I was joking.”

        Still, in the video, Price is heard encouraging attendees to use the address of his brother who lives in Georgia in order to register to vote there.

        (Emphasis added.)

        Well, that didn’t take long.

        • P J Evans says:

          He’s going to have some trouble defending that registration in court. (Once again, the person advocating *and committing* voting fraud is a Republican.)

        • harpie says:

          This is from a Josh Marshall thread about it which Marcy retweeted earlier:

          […] 2/ A pretty kickass reporter, Nicole Carr, recorded the video before the guy took it down. When she confronted him he insisted it was all a joke and of course he didn’t register in Georgia. But she checked and he had. […]

          added: I see that’s already in the story at this point, but still…wow. Voter fraud is a Pattern and Practice among the GOP

          • earlofhuntingdon says:

            He should know by now that that’s a felony. If he were in Texas and Black, he might face a five-year prison term.

          • jwiede says:

            Which reminds me, hopefully “someone” is looking into other states’ races where GOP unexpectedly won, just in case. I can’t help but think the “GOP fraud focus” on MI, WI, AZ and PA might be, at least in part, a misdirect to focus attention away from other venues.

    • BobCon says:

      I was struck by Abbe Lowell’s involvement. I thought he was much too savvy to get anywhere close to a scheme drawing this kind of scrutiny, even if his own role is above board. I would think the involvement of Broidy would set off alarm bells for Lowell.

  9. Bay State Librul says:

    The descent of justice into the bowels of Dante’s inferno.
    We need to clean up the Justice Department and reform the department from head to toe.
    My first act would be to open up the vault and ban the use of redaction.
    My second act would be to put a spell on Barr, and impeach/prosecute Billy for “crimes against justice”
    My third act would be to codify and put limits on the “Power of the President”
    Our system is “badder than bad.”
    The problem is I have no idea what the fuck I would do first, and the odds of success are enormous.
    Accountability — not escape from the law
    Latest on the Durham appointment

  10. harpie says:

    [I didn’t know which post to place this under, so…did both…]
    11:35 AM · Dec 4, 2020

    NEW: / These comments this AM about the Flynn pardon from Judge Walton came unexpectedly in our #FOIA case for FBI 302s from the Mueller probe. Walton rejected govt’s proposal that Flynn 302s be produced in Feb saying he wants it out “while this administration is still in office.” [link]

    Links to:
    Judge Questions Whether Trump’s Pardon of Michael Flynn Is ‘Too Broad’
    U.S. District Judge Reggie Walton said Emmet Sullivan could find that “the wording of the pardon is too broad, in that it provides protections beyond the date of the pardon.”

Comments are closed.