Making Who Obedient How?

Trophy Documents: The Entire Point Was to Make FBI Obedienthttps://t.co/HehF8WvRHf

— emptywheel (@emptywheel) March 6, 2023

 I'm not going to defend the Durham investigation, but it is interesting when the shoe is on the other foot:

Those who didn’t follow John Durham’s trials closely undoubtedly missed the parade of scarred FBI personnel whose post-Crossfire Hurricane vulnerability Durham attempted to exploit to support his invented claims of a Clinton conspiracy.

Sure, lots of people wrote about Jim Baker’s inability to provide credible answers about the meeting he had with Michael Sussmann in September 2016. Fewer wrote about the credible case that Sussmann’s attorneys made that a prior Durham-led investigation into Baker — for sharing arguably classified information with a reporter in an attempt to forestall publication of a story — made Baker especially quick to cooperate with Durham in 2020. Fewer wrote about Baker’s description of the stress of Jim Jordan’s congressional witch hunts.

It sucked because the experience itself, sitting in the room being questioned the way that I was questioned, was, as a citizen of the United States, upsetting and appalling, to see members of Congress behaving the way that they were behaving. It was very upsetting to me.

[snip]

It sucked because my friends had been pilloried in public, my friends and colleagues had been pilloried in public, improperly in my view; that we were accused of being traitors and coup plotters. All of this was totally false and wrong.

Such a circus was the kind of thing that might lead someone like Baker to prefer the “order” of a prosecutor chasing conspiracy theories, someone whose memory was seared by the firing of Jim Comey.

[Sean Berkowitz]. And this is a pretty terrible experience as well. Right?

A. It’s more orderly.

Q. (Gestured with hand to ear.)

A. This is more orderly. It’s terrible but orderly.

Q. And you’re doing the best you can. Right, sir?

A. Yes, sir.

Q. But it’s hard to remember events from a long time ago, 1snre sez

A. It depends on what the event is. I remember Jim Comey being fired, for example. That’s a long time ago and I have a clear recollection of that. So it depends on what you’re talking about.

But Baker wasn’t the only one who discussed the years of scrutiny. Counterintelligence Special Agent Ryan Gaynor, who worked in DC on the Russian investigations during 2016, described how in October 2020, after he revealed to Durham’s team that he knew a DNC lawyer had brought in the Alfa Bank tip, Durham’s team told him they were no longer treating him as a witness, but as a subject of the investigation.

A. Yeah. There were two thoughts. The first one was that I felt like I had woefully ill prepared for the meeting, because I didn’t know what the meeting was honestly going to be about with this investigation.

The second thought was that I was in significant peril, and it was very concerning as a DOJ employee to be told that now the Department of Justice is interested in looking at you as a subject instead of a witness.

Sussmann lawyer Michael Bosworth got Gaynor to explain that after he told a story more to Durham’s liking, he was moved back to the status of witness.

I can think of nothing worse than being the subject of an investigation; and I suspect FBI personnel especially know what it's like to the on the wrong end of that microscope.  And yes, I think Durham's investigations were groundless and an abuse of (at least) prosecutorial discretion, seeing as he couldn't get one conviction for all his trying. (He did get one minor conviction but, please, that's the exception that proves the rule.  You can almost always convict somebody of something if you try hard enough. It's hardly prove you had anything to investigate, much less prosecute, in the first place.)  But don't you love that last bit, when Bosworth gets Gaynor to explain how Gaynor went back to the status of "witness": by telling Durham what he wanted to hear.

Which is exactly what Durham wanted.

Which sounds dreadful and deceitful and unethical and all kinds of wrong, until you consider investigators and prosecutors probably do the same thing every day. I've met government attorneys.  They are fully convinced anyone they interview is probably lying and more than probably guilty of something, probably something they are investigating at the moment.  They are 100% convinced that, when they identify the suspect, he/she is guilty, and it's just a matter of getting it through the court process.  I worked with trial lawyers, and as a trial lawyer, and I know civil lawyers approach a case from the standpoint of cost:  what's the settlement worth?  They don't assume their client is innocent or that the opposing party is lying.  The best trial lawyers hold all opinions in suspension and worry about the narrative they will tell the jury, and whether the jury will accept it.  Absolute clarity and purity of conviction is the best way to screw your case right into the ground.

But how else do investigators make a case and eliminate anything that won't provide "proof beyond a reasonable doubt"?  It's kind of baked into the system.

When police on TeeVee shows and movies "lean" on a witness, they aren't extracting the truth the way sufficient pressure extracts all the juice from the lemon.  They are getting the story they want to hear.  They are simplifying the narrative to that fine point of "guilt beyond a reasonable doubt."  Probably better prosecutors take the time to question every possible fact witness, and use the assembled information to create a picture that allows them to return to some witnesses and clarify their testimony, perhaps even persuade them to "come clean."  Probably that's what Durham was doing.  One has to consider the possibility, even though he was on a witch hunt (note the irony that it might have been less of a witch hunt if he hadn't failed so spectacularly so many times in court.  Lots of investigations, like the one of Matt Gaetz, never go to court in order to avoid just that fate.). But criminal investigations inevitably involve pressure on some witnesses to be sure their testimony is credible, and changing a word or two, an emphasis, even expressing doubt where before there was more certainty, is exactly what happens in any investigation, and any trial.

It's never as cut-and-dried as the movies would have you believe.  That's a narrative convenience so the story can come comfortably to an end.  OJ still insists he's innocent.  Alex Murdaugh insists he's innocent.  One of them will never see the inside of a jail cell.  One of them probably will.  How neatly tied up with a box is that?

Was Durham trying to support his claim of a conspiracy?  I think so.  The public record speaks to that quite plainly, aside from the slightly-less public record emptywheel is relying on here (which is just as reliable, IMHLO). But how different were his techniques from those of John Smith?  We don't know, and I don't mean to imply Smith is doing exactly what Durham did, just hopefully with better courtroom results.  I just mean the line between coercion and extracting the truth is a fine one, and where it is drawn is ultimately always a matter of opinion, if not outcomes.  Beating a witness to get a confession is obviously not allowed; but pressuring a witness because you have evidence that calls into question the story they told?    Sometimes that's wrong; sometimes that's right.

As my beloved seminary professor like to tell us:  "Life is messy."

As for the thesis that this was an effort to bend the FBI to the will of Trump & Co.: isn't it ironic that the same techniques they and the justice system rely on, are now techniques that really should be questioned, because of who they were used against?

Sounds almost like a civil rights lawyer's issue, huh?