Did Durham find something worse than Watergate? Not so far

What does “worse than Watergate” mean? Well, consider a hypothetical: Let’s say a presidential administration puts the government’s law enforcement and intelligence apparatus in the service of its party’s presidential candidate by trying to portray the opposition party’s candidate as a clandestine agent of a hostile government.

To be concrete about it, let’s say the Obama administration tasked the FBI and CIA to help the Democrats’ 2016 candidate, Hillary Clinton, by framing the Republican nominee, Donald Trump, as a mole for the Kremlin. And, to execute this scheme, let’s say the FBI and CIA first tasked operatives of the Clinton campaign to cook up evidence that could be spun to make Trump look like a Russian spy, and then used that bogus evidence as a pretext to (a) open investigations, (b) apply to the secret Foreign Intelligence Surveillance Court for surveillance warrants, and (c) monitor Trump and his associates.

Let’s say the scheme did not prevent Trump from being elected — yes, Clinton was that bad a candidate — but it otherwise succeeded. Top government officials — mainly, Obama administration holdovers — were able not only to sustain the “Trump collusion with Russia” narrative well into Trump’s administration; they further impelled the appointment of a special counsel, whose staffers (many of them Obama and Clinton acolytes) impeded Trump’s capacity to govern for two years.

If that had happened, we might have something that was worse than Watergate, the scandal that rocked the nation and drove Richard Nixon from the White House in 1974. 

Not surprisingly, then, “worse than Watergate” is the livid cry we’ve heard from former President Trump and his supporters since last week. By their lights, what I’ve just described is no hypothetical situation. Instead, it is a real-life scandal, established by stunning revelations in a court filing by Justice Department special counsel John Durham.

Trump supporters and others, justifiably alarmed by “deep state” abuse of power, are right that it is a scandal, one that merits far more attention than it has gotten from the media-Democrat complex. Nevertheless, there is a flaw in their Watergate comparison, at least if Durham’s theory of the case is sound. 

To be of Watergate dimension, a scandal needs proof that government officials were the puppet masters behind the political spying against Trump — that the government drove the conspiracy. According to Durham, that is not what happened. Instead, he alleges that presumably well-meaning government officials were having their strings pulled. They were mere dupes of the real masterminds: Hillary Clinton’s campaign operatives. 

Durham’s eye-popping court submission last week came in the case he has brought against one of those operatives, Michael Sussmann. A now-former partner at the politically connected Perkins Coie law firm, Sussmann is accused of lying to the FBI in 2016 to conceal the identity of clients — specifically, the Clinton campaign and another of its operatives, tech executive Rodney Joffe — on whose behalf he brought the FBI derogatory information about Trump. 

Joffe, you see, was hoping to score a job in the anticipated Clinton administration. He also had a government contract, the purpose of which was to help our intelligence agencies combat hacking. The arrangement granted him access to internet traffic data related to so-called domain name system (DNS) activity, which tracks communications between servers. But Joffe allegedly exploited his privileged access for partisan political purposes: To help Clinton frame Trump as a clandestine agent of Russia, he mined and distorted DNS data to make it appear that Trump and the Kremlin were using Alfa Bank, an important Russian financial institution, as a communications back channel.

Before his lucrative gig at Perkins Coie, where his clients included the Democratic National Committee, Sussmann had been a Justice Department cybersecurity lawyer. In the Washington way, he was thus chummy with other officials in the alphabet soup of national security agencies, including the FBI’s then-general counsel, James Baker. It was only natural, then, in the Washington way, that the Clinton campaign selected Sussmann as the perfect swamp insider to convey the deceptive information to the FBI. 

Consequently, Durham’s indictment alleges that Sussmann duped the FBI by misleading Baker — concealing the identities of his clients, the Clinton campaign and Joffe — when he reported the anti-Trump “intelligence” they had ginned up.

Now, it gets worse. Last week, Durham disclosed that, in February 2017, nearly four months after the 2016 presidential election, Sussmann provided updated Trump-Russia data to another government national security agency, apparently the CIA. It was a dumbfounding revelation because Joffe had culled the DNS information from the Executive Office of the President — meaning the White House. (Sussmann’s defense disputes this allegation.) In sum, Durham alleges that by leveraging their trusted access and cozy ties to government data and officials, Clinton campaign operatives managed both to portray the sitting president of the United States as a mole of Russian President Vladimir Putin, and to urge an investigation of Trump under the guise of protecting national security. 

If true, this would be one of the most devious political dirty tricks of all time. But in Watergate, the government officials were the culprits; in Russiagate, to hear Durham tell it, the government officials were just saps. Oh, sure, they were negligent, all too credulous. The bureaucrats even may have been just a tad politically biased against Trump, predisposed to believe he was the bad guy and the Clintonistas — like-minded party of government types — were just trying to protect America. The government officials were naifs, and Clinton rolled them, in Durham’s version.

I find this hard to swallow, having studied Russiagate and written a book about it. I imagine many Americans who want answers will feel the same way. 

Trump supporters have great expectations about special counsel Durham’s probe. They are going to be deeply disappointed. There is no grand Watergate conspiracy, unless top government officials are willfully abusing their power. In Durham’s account, they are guileless victims, hypnotized by Clinton’s machinations. And note that Joffe and top Clinton campaign officials are not charged with defrauding the government. Only Sussmann is indicted, merely for misleading the FBI about the sources of his information; there is no charge that the information itself was fraudulent. 

In that sense, it is just like Durham’s indictment of Igor Danchenko, the principal source of the bogus Steele dossier. Danchenko is charged only with misleading the remarkably credulous FBI about his sources of derogatory information used to portray Trump as Putin’s plant. There is no charge against Christopher Steele and other Clinton operatives who cooked up the dossier. In Durham’s Danchenko prosecution, it makes no difference whether the dossier is a pillar of truth or a tissue of lies. There is no allegation that those well-meaning folks at the FBI defrauded a federal court by using the dossier to depict Trump as a Kremlin mole, in order to obtain top secret surveillance warrants that continued for eight months into Trump’s administration.

If there is a “worse than Watergate” scandal here, this is a strange way to go about finding it.

Former federal prosecutor Andrew C. McCarthy is a senior fellow at National Review Institute, a contributing editor at National Review, a Fox News contributor and the author of several books, including “Willful Blindness: A Memoir of the Jihad.” Follow him on Twitter @AndrewCMcCarthy.