Note: This interview is part of an ongoing series of articles on the politicization of the US Justice System.
What We Learned from the Durham Report: An Interview with Techno Fog and Lee Smith
On May 15, 2023, Special Counsel John H. Durham released the findings of his years-long investigation into the origins of the FBI’s surveillance of the Trump campaign in the months before, during, and after the 2016 presidential election. Appointed by Attorney General William Barr in December of 2020, Durham was tasked to look into President Trump and his allies’ claims that the Russia investigation, code-named Crossfire Hurricane – which allegedly found “many questionable links between Trump associates and Russian officials and spies” and led to the Mueller investigation – stemmed from a conspiracy by intelligence or law enforcement agencies.
In an effort to understand the implications of the Durham Report and its findings, as well as the state of DOJ more broadly, we decided to reach out to friends of the publication lawyer Techno Fog and author Lee Smith, both of whom have been closely following and the leading the report on the investigations for years. What follows is a Q&A interview between IM—1776’s editorial team (with special guest editor Tiger Lily), Techno Fog and Lee Smith.
— The Editors
Part I: “The Devil in the Details”, with Techno Fog
IM: Has the report revealed anything about the relationship between the FBI, the CIA, and the Democratic Party?
Techno Fog: Durham’s report revealed that the FBI was a type of agent for the DNC and Hillary Clinton’s Campaign, in large part because their political interest aligned. Here are just a few details on how the FBI served the DNC and the Clinton Campaign:
- The FBI sabotaged, or slow-played, investigations into the Clinton Campaign. Durham cited an FBI tip from a confidential human source (CHS) that a foreign country was seeking to contribute to Clinton’s campaign “as a way to gain influence with Clinton should she win the presidency.” An FBI field office sought a FISA warrant against the purported foreign contributor but FBI headquarters ignored that request for months. One FBI agent said, “They were pretty ‘tippy-toeing’ around HRC because there was a chance she would be the next president.”
- Another FBI investigation involved actual criminal conduct by the Clinton Campaign, where it was said to have accepted a $2,700 donation made by an FBI CHS on behalf of a foreigner in violation of federal law. Having caught the Clinton Campaign in criminal activity, the FBI never obtained copies of the illegal payments and instructed its CHS to “stay away” from the Clinton Campaign.
- FBI (and DOJ) leadership was “hostile” to the investigation into the Clinton Foundation. In February 2016, FBI Assistant Director Andrew McCabe ordered that the investigation be closed. McCabe would take back that demand following objections from lower-level FBI employees and offices, but any investigative steps into the Clinton Foundation would need his approval.
- The FBI knowingly used information contracted by the Clinton Campaign (the Steele Reports) to investigate the Trump Campaign before and after the 2016 election. It was the CIA who first discovered that “U.S. Presidential candidate Hillary Clinton had approved a campaign plan to stir up a scandal against U.S. Presidential candidate Donald Trump by tying him to Putin.” This information was shared by CIA Director John Brennan to Obama and Biden, senior Obama Administration officials including Attorney General Loretta Lynch, and FBI Director James Comey. It was later relayed to those in the FBI heading Crossfire Hurricane.
- The FBI relied on DNC/Clinton lawyer Michael Sussmann as a source – and the agency’s leadership took measures to protect Sussmann’s identity from being revealed to agents and analysts investigating the bogus allegations asserted by Sussmann.
The political agenda of CIA Director Brennan was also discussed in the report. Brennan told Durham’s office in 2020 that the Mueller investigation “found no conspiracy” between Trump and Russia. Yet Brennan had been a vocal proponent of the Trump/Russia hoax before and after the Mueller report, saying in 2018 that President Trump’s claim there was no collusion with Russia was “hogwash” and stating in 2019 that he “suspected there was more than there actually was” with regard to the collusion allegations.
IM: How does the Democratic National Committee cyber attack fit into this?
Techno Fog: Without the DNC hack collusion doesn’t make any sense. It is the essential element: the event that triggered the Clinton Plan to frame the Trump Campaign, and the beginning of the FBI’s corrupted investigation that morphed into Crossfire Hurricane. The FBI investigation of the Trump Campaign didn’t start spontaneously; it was always a type of continuation of the inadequate DNC hack inquiry.
One of the benefits of the Durham Report (and of the trials of Michael Sussmann and Igor Danchenko) is that it makes us reconsider the method, or process, by which Crowdstrike attributed the hack to the Russians. DNC/Clinton Campaign lawyer Michael Sussmann would contract with Crowdstrike on behalf of his client (the DNC). That contract stated that Crowdstrike would assist “in providing legal advice or related legal services to” the DNC. The Crowdstrike contract (which, by the way, the FBI doesn’t have a full copy of), and any communications among Crowdstrike, Sussmann, and the DNC would be privileged. If that sounds familiar it’s because that’s the same way Sussmann used Fusion GPS. Crowdstrike was there to achieve client goals, not to reach the truth.
IM: Why didn’t Durham investigate the hack, nor bring more charges?
Techno Fog: Because it was outside his jurisdiction. Federal regulations provide that “the jurisdiction of a Special Counsel shall be established by the Attorney General. The Special Counsel will be provided with a specific factual statement of the matter to be investigated.” (28 C.F.R. § 600.4(a).)
The matters Durham was to investigate were set forth by Attorney General Bill Barr in his 2020 appointment order. It stated Durham was to investigate the intelligence and law enforcement activities “directed at the 2016 presidential campaigns, individuals associated with those campaigns, and individuals associated with the administration of President Donald J. Trump, including but not limited to Crossfire Hurricane and the investigation of Special Counsel Robert S. Mueller, III.”
That order did not include the DNC hack – although it should have. In theory, Durham could have requested approval to review it. Such a request is allowed under the federal regulations. (See 28 C.F.R. § 600.4(b).) And part of Durham’s investigation did touch upon aspects of the inquiry into the DNC hack, such as asking Georgia Tech researchers: “Do you believe that DARPA should be instructing you to investigate the origins of a hacker (Guccifer_2.0) that hacked a political entity (DNC)?” But I’m not sure Durham had the bandwidth for undertaking that investigation. The scope of his inquiry was enormous and involved 480 interviews, the review of over 6 million pages of documents, the service of 190 grand jury subpoenas, and seven search warrants. It’s easy to imagine the DNC hack investigation taking years on its own. My point is that the investigation of the DNC hack required a Special Counsel solely dedicated to that issue. And that responsibility was on Barr, not Durham. Why didn’t Barr order the review of the DNC hack investigation? Not sure, perhaps because Barr believes the official story of a Russian hack and leak is true.
As for why Durham didn’t bring more charges: In Durham’s view, he lacked the evidence. For example, whether anyone from the FBI submitted false information to the Foreign Intelligence Surveillance Court (FISC) in violation of 18 USC § 1621(2) (perjury), Durham said: “the available evidence was insufficient to definitively establish” that crime. In determining that, he was undoubtedly focused on whether the third element of 18 USC § 1621(2) could be satisfied: “proof of specific intent, that is, that the defendant made the false statement with knowledge of its falsity, rather than as a result of confusion, mistake or faulty memory.” This is the hardest part of the false statement charge to prove, and Durham cited a number of issues that left his Office without sufficient evidence, including failed memories, the scarcity of “contemporaneous documentary evidence reflecting the events in question,” and “the lack of evidence as to who was responsible for information that was included or withheld in the FISA applications.”
IM: How involved were President Obama and Vice President Biden?
Techno Fog: President Obama and Vice President Biden were briefed by CIA Director Brennan on July 28, 2016, regarding the Clinton Plan to frame the Trump Campaign with the Russia allegations. What did Obama and Biden do with that information? To whom did they leak that intelligence (if anyone) and how did it inform their next steps? The answers to those questions are unknown. My general assumption is that Obama didn’t have to issue any orders or instructions relating to Crossfire Hurricane. He knew his Administration would handle it.
IM: How can the FBI be restrained?
Techno Fog: The best way to restrain is self-restraint. Unfortunately, it’s clear that the FBI lacks the motive or discipline to curb its worst desires. For that reason there has to be further limitations on the FBI’s powers, additional means of oversight, the legislative expansion of individual rights, and remedies by which the injured can be restored. For example, Congress must create a private right of action under which an individual can sue those who prepare false or misleading FISA applications. Let the FBI be accountable for damages.
IM: What legal precedent or structure could have prevented this from happening? And why didn’t it?
Techno Fog: The lack of charges illustrates the weakness of the FISA process. Officials who submit an application with falsehoods or omissions of material facts can escape accountability by saying they made a mistake or accidentally overlooked evidence or made a professional judgment. It is exceedingly difficult to prove otherwise, absent the alteration of records (Clinesmith), contradictory billing records and testimony to Congress (Sussmann), or correspondence demonstrating falsehoods (Danchenko). Could additional safeguards have prevented the FISA abuse? Maybe. But remember, these were all bad actors, from agents and analysts to the FBI Director, all motivated by political bias. They benefited from being before a secret court. And they knew oversight of their actions would come years later. Maybe the real solution is to end the FISC.
Part II: “Implications”, with Lee Smith
IM: Douglass Mackey is currently facing jail time for “election interference” for posting memes online. None of the people named in the Durham Report appear to be facing any charges at all. What does this say about the state of the DOJ?
Lee Smith: In retrospect, we probably expected too much by expecting the DOJ would hold its own, including the FBI, accountable. That’s not how bureaucracies work and it’s not how power works. Maybe the Durham report will at least convince people that the DOJ’s Hunter Biden cases are strictly performative — he will not be held accountable for breaking the law, or laws. The ruling party, by which I mean mostly Democrats but lots of Republicans, too, does not acquire power to use it to punish their own. They have power to use it to gain more power to hurt their enemies and reward their own side, simply because it’s their side.
I hear people on the Right say the Deep State is using the Hunter cases as leverage against the president, but that’s imagining we are still within a normal American political context where there is lots of intrigue and different centers of power — and one in which the attorney general would be bound by law to charge his boss’ son if the evidence warranted it. But that is not what’s happening. This is a “regime” in the sense that it is a third-world-like security state with one mind and one body – it is a Leninist party (though given the establishment’s obsession with race, I’ll also accept Maoist). Division is dangerous to such regimes, which is why its opponents must seek to exploit any apparent splits or provoke division. Sooner rather than later we have to see we are living under regime conditions.
IM: The report seems to suggest that the Mueller investigation was not only unnecessary and an attempt to sabotage Trump, but a long-standing effort to expand the power of the FBI. What are your thoughts on this?
Lee Smith: Every business wants to grow, and the same holds for federal law enforcement. For the FBI, everything is an opportunity to expand its power, like 9/11. It 100% failed its counterintelligence mission, to find out about foreign spies and/or terrorists on US soil, but they used that failure to get more power and more money, especially for counterintelligence, which is the FBI section that ran Russiagate. If the FBI gets its way, it will use Russiagate to further enhance its powers, because that’s how DC works. No one is ever held accountable for failure: since there are so many people to hold accountable for failure, everyone would have to be held accountable, so the only thing to do is hold no one accountable; hence the Durham report.
Critics of the FBI say they want to return the FBI to its original mission, “crime-fighting.” But that was never its mission. Its original mission was to spy on political subversives, communists mostly, but also right-wingers. The FBI is bad at fighting crime. That fact is so well known that it has even become a Hollywood cliché. Remember in Die Hard when the FBI agents take over the case at Nakatomi Plaza? The LA cops are mad because the feds are arrogant pricks who don’t know what they’re doing. When the FBI guys get blown up in their helicopter, we see it from the cops’ point of view — the FBI guys are jerks and their arrogance killed them and they deserved it.
Do you know who is best at real crime fighting? Local police departments, because they know what’s going on in their own territory. They walk a beat and have sources. Can you imagine what would have happened if an NYPD detective had a paid informant who knew some of the members of a gang that killed 3000 people in one day? His career is over and he’d probably take his life. But not the FBI. Their confidential human source rents a room to two of the 9/11 hijackers, and instead of the FBI being called to the floor, they say they need more money and more power to do their mission, and since no one in Congress wants to be the one who will be held responsible in the event of another 9/11, the FBI gets all they ask for and more.
IM: Do you see parallels between the “Russian Collusion” and Watergate? If so, what are the similarities and what are important differences?
Lee Smith: It’s exactly the same thing — breaking into the headquarters of a presidential campaign. Nixon wanted to spy on the DNC, and in 2016 Clinton wanted to spy on Trump. The FISA warrant on Trump aide Carter Page allowed the FBI to sweep up the Trump team’s electronic communications, basically its headquarters. Russiagate is a digital Watergate. Except it was worse because instead of using former US spies, they used active ones still on the government payroll and they used programs, like FISA, designed to protect Americans to spy on a presidential campaign. The Clinton campaign spent about $500K to fund the dossier, etc, but it pales in comparison to what your tax dollars paid for Russiagate. Mueller investigation alone cost $25 million, for two years of work. And for roughly a year’s worth of work, from spring 2016 to May 2017 (when Mueller starts) maybe half that. So it cost Americans between $40 to $50 million to fund the FBI’s plot against the president.
IM: We have heard calls for another Church Committee, but skeptics like Codevilla might say that the Church Committee helped to insulate the IC & Justice Department and empower partisan media even more. Where do we go from here?
Lee Smith: The Church Committee produced FISA, which is at the core of Russiagate — it’s among the US’ most intrusive surveillance programs, and it’s what the FBI used to spy on Trump, by repackaging politically funded dirt as a warrant that was granted by a secret court. For the late Angelo Codevilla – a great writer and a wonderful man I got to know a little bit – the problem with the court wasn’t just the secret aspect of it. He said that the FISA pre-authorized spying so that even if laws were broken it cleared the FBI because a court signed off on it. If you read the decision against Carter Page’s lawsuit, you’ll see that Codevilla was more prescient than he could have imagined. In essence, the decision is this: Sorry if they dragged your name through the mud and made you vulnerable to death threats; but FISA wasn’t written to protect you, it protects the intelligence services. Any measures that will come out of efforts to reform US spy services will simply augment their powers. They’re good at power, and in DC, even in front of Congress, they’ve always got home-field advantage.
IM: The implication of this report seems to be that the last two Presidential elections have been effectively manipulated by the US Security State. What is the prospect of any change in this situation in 2024?
Lee Smith: Both in 2016 and 2020, the FBI and other spy services worked to protect the oligarchy’s preferred candidates from being harmed by the evidence of corruption found in emails that were either generated by the candidates themselves or by family members and associates. In 2016, the FBI spied on the Trump campaign to see if they had an October Surprise derived from emails found on Hillary’s private server; and in 2020, the FBI protected Biden from his son Hunter’s laptop by censoring social media and press reports of it. Who knows if there are more damaging emails to be found among the Biden clan’s electronic devices, but note that the DOJ has already moved to shield the classified info unlawfully held by Joe Biden, by appointing a special counsel preparing to indict Trump for holding classified information he was entitled to hold. In short, we’re seeing heading into 2024 what we saw in 2016 and 2020 – the Dirty Cop Mop-Up Op.