In all likelihood, William Marbury was really bummed when the U.S. Supreme Court ruled in 1803 that it lacked jurisdiction in his dispute with then U.S. Secretary of State James Madison. A “midnight judge” appointed by John Adams at the tail end of his presidential administration, Marbury was aggrieved that the new administration essentially told him to go pound sand. All he wanted was to have his appointment to a cushy government job affirmed.
What we got instead, constitutional scholars are quick to point out, is much bigger. In explaining why they could not sort out Marbury’s dispute with the new guys in charge, the Supreme Court asserted its most important power to this day: judicial review of all laws. As I struggle to find the lesson in special counsel John Durham’s failure to convict the “source” of the salacious – and disproven – Steele Dossier, the Marbury v. Madison outcome offers a ray of hope.
I wanted to see Russian-American foreign policy “analyst” Igor Danchenko convicted of lying to the FBI, just as I wanted to see Clinton campaign lawyer Michael Sussmann get what he deserved for telling the FBI’s senior counsel that he had not approached the bureau on behalf of his client, but rather because he was a good citizen. In both cases, though, juries came to different conclusions than I had.
The Danchenko acquittal stung particularly hard because the lawyer who saved him is the same lawyer I paid my life savings to so I could plead guilty to not filling out a form. It seems very unfair, to me anyway. After all, Danchenko played a role in pushing a fable as a fact, and the fall-out from that charade led to my own misfortune, however indirectly. But what happens to Danchenko or Sussmann really isn’t my business. The historical record, on the other hand, is.
Mainstream media has been quick to label Durham a partisan extremist who came up with scratch. CNN’s Chris Cizzilla was quick to call his probe a bust yesterday. But this is where they’re wrong.
What Durham revealed in both trials, as well as in his prosecution of FBI lawyer Kevin Clinesmith who tampered with the FISA warrant application on Carter Page, is a broken justice system that drew a political conclusion and then frantically worked to manufacture facts to support it.
In the Sussmann verdict, a Washington DC jury did not find that the lawyer hadn’t lied, rather it determined that his lies were not material. The Hillary Clinton campaign did thrust baseless innuendo on the FBI and U.S. Department of Justice to achieve a political outcome. Indeed, Durham doesn’t mince words in describing a “conspiracy” to said effect in the Sussmann indictment.
What we learned from the Danchenko trial reflects poorly in the opposite direction, namely on the FBI. Even though there were concerns about whether Danchenko posed a counterintelligence threat, the bureau still paid him over $200,000 for his “insights.” Worse still, they offered a $1,000,000 bounty for evidence to corroborate the false narrative that grew from the Steele dossier. Talk about incentivizing bad behavior! Apologists are quick to point out how authorities have long offered rewards and bounties in their efforts to fight crime. But the more we learn about how the FBI went about the “Crossfire Hurricane” investigation, the worse it smells.
In the case of Clinesmith fudging a warrant application in order to spy on a campaign official, Congress leapt into the breach to amend the FISA warrant application process. The question now is what a new Congress will do to address the system breakdowns Durham exposed in the two more recent criminal proceedings: how can the FBI get the scrutiny and oversight it clearly demands? Should it be able to send senior agents on politically motivated crusades, as appears to be the case with fired agent Peter Strzok who walked in to the national security advisor’s office with plan to get him to lie?
Somewhat bizarrely, Durham even impeached his own witness – an FBI analyst – during the Danchenko trial. The bureau is not going to reform itself. Congress is going to have to show some leadership here – after November 8th, that is.
The immediate take-away from Russia-gate events may be that special prosecutors aren’t all they’re cracked up to be. Neither Robert Mueller nor John Durham achieved the results for which partisans on either side dearly hoped. But relying on supermen to save our justice system is a little naïve, quite frankly. Wise men learn from their mistakes, and there is plenty we can all discover in a clear-sighted review of what Durham found. That is, after all, the bigger picture.