ANALYSIS:
Special counsel John Durham’s explosive court filing has complicated any attempt by the Biden administration to shut down his investigation of the FBI’s Russian election interference probe because of the political firestorm it would ignite.
Mr. Durham said in the case against Democratic attorney Michael Sussmann that people affiliated with Hillary Clinton’s 2016 campaign exploited access to Donald Trump’s internet data to link him to Russia.
The revelation puts the Biden administration in the hot seat because several top Clinton campaign officials have made their way to the White House. One of them is National Security Adviser Jake Sullivan, a foreign policy adviser for the campaign.
“The first thing I wondered when I read the filing is the closer this thing zeroes in on Jake Sullivan or the inner workings of the Clinton campaign, how concerned is the Biden administration going to be?” said Robert W. Ray, who succeeded Kenneth W. Starr as independent counsel for the investigations of President Clinton. “How long before [Attorney General] Merrick Garland yanks the reins?”
Andrew Leipold, a law professor at the University of Illinois who served as a consultant in Mr. Starr’s investigation, said the unusual circumstances of Mr. Durham’s filing appear to show an effort by the special counsel to protect himself.
The shocking accusations were buried in the middle of a run-of-the-mill motion raising questions about whether Mr. Sussmann’s attorneys have a conflict of interest. The motion was filed around midnight Friday on Super Bowl weekend.
“I can’t think of a reason why it would be in his advantage to put this out here like that other than it makes it harder to shut this down,” Mr. Leipold said. “Now people can’t say Durham isn’t doing anything, so just prosecute Sussmann and wrap this up.
“Durham thinks he needs this revelation, but I don’t know why he thinks he needs this to investigate conflict of interest unless he thinks he’s about to get canned,” he said.
Firing a special counsel carries substantial political risk. Any attempt to fire Mr. Durham would be seen as political interference to cover up wrongdoing by Obama or Biden administration officials.
It also could vacate President Biden’s pledge to keep the Justice Department independent and free from political influence.
“I think the mark for this administration will depend on how high this goes up,” Mr. Ray said. “If Durham takes on Jake Sullivan, that’s going directly into the Biden administration.”
Firing a special counsel is complicated. Only an attorney general can remove a special counsel, and any firing must be made in writing and carried out for a specific reason, such as a conflict of interest.
As a special counsel, Mr. Durham is not directly supervised by the Justice Department. Still, Mr. Garland can require him to explain his investigation and his procedural steps.
Mr. Ray said he expects the White House to put more pressure on Justice to curb the Durham investigation as the special counsel focuses on people higher up in the Clinton campaign.
Mr. Durham’s accusations have led to fresh scrutiny of Mr. Sullivan. While working for the Clinton campaign, Mr. Sullivan promoted the false claims spread by Democratic operatives under review by the special counsel.
“If they start to close in on Jake Sullivan or some of these people in the administration, there is going to be a huge amount of pressure either directly or indirectly to rein this thing in,” Mr. Ray said. “Garland is a smart guy. I would hope he would resist that, but political pressure makes people do odd things.”
Solomon L. Wisenberg, a white-collar criminal defense attorney, said that if Mr. Garland wanted to shut down the Durham probe, he would have done it by now. He noted that Mr. Garland had nearly a year without any public activity from Mr. Durham, which would have given him an opening to end the investigation.
“Obviously, Garland could have tried to shut this down at any time, and he hasn’t,” Mr. Wisenberg said. “The Sussmann indictment was not considered very strong — even by people on the right — when it was filed, and no one made a move against him.”
Mr. Sussmann has pleaded not guilty to one count of lying to the FBI when he met with a top bureau official to convey accusations that a Trump Organization server was secretly communicating with a Russian bank. The claim was later proved false.
Mr. Durham said Mr. Sussmann told the bureau he was not representing a client, but he billed the Clinton campaign for the time he spent with the FBI.
Then-Attorney General William Barr appointed Mr. Durham in October 2020 to investigate the FBI’s probe of Russian interference in the 2016 presidential election.
