IN-DEPTH: Nothing to Stop FBI From Mistreating Trump Campaign Again in 2024, Durham Report Suggests

News analysis

Months before Hillary Clinton declared her presidential candidacy, the FBI learned from a well-placed source that a foreign government planned to send an operative to donate to the Clinton campaign in order to gain influence if the former secretary of state triumphed in the upcoming 2016 election.

The bureau opened an investigation, but an application for a warrant to surveil the foreign operative sat in limbo at a field office for four months. An FBI agent told investigators with special counsel John Durham’s office that “everyone was super more careful” and “scared with the big name.” The higher-ups in the bureau said they didn’t want a presidential candidate to end up on tape, even if the chances were remote. The surveillance warrant was eventually approved under the condition that Clinton and other officials and candidates would be briefed and warned about the foreign national.

The bureau acted differently when it received a tip about the Trump campaign a year later. The FBI opened a full investigation and commenced surveillance activity, but never offered or seriously considered providing defensive briefings. The Trump investigation was prompted by a vague tip from the Australian government about a Trump campaign associate speaking in public about an alleged offer from Russia to hand over Hillary Clinton’s emails to help elect Trump.

While not an apples-to-apples comparison, the treatment of the Trump and Clinton probes perplexed special counsel John Durham, who released his final report released on May 15.

Durham dismissed the FBI’s various explanations for the disparate approaches to the Trump and Clinton investigations and said it was not “clear” how the bureau’s rationale reconciled with the facts. The Durham report details three more investigative referrals concerning Clinton which the bureau failed to pursue with the same rigor, speed, and intensity it focused on Trump.

Today, the FBI is in a similar situation to 2016, with former President Trump and President Joe Biden both facing criminal inquiries while running for office in 2024. Although the bureau undertook a lengthy list of reforms in response to the failures of the Trump campaign investigation, Durham’s report suggests that little can be done to prevent a repeat of 2016 if the people running the show don’t play by the rules they swore to follow.

“Ultimately, of course, meeting those responsibilities comes down to the integrity of the people who take an oath to follow the guidelines and policies currently in place,” the report states.

“The promulgation of additional rules and regulations to be learned in yet more training sessions would likely prove to be a fruitless exercise if the FBI’s guiding principles of ‘Fidelity, Bravery and Integrity’ are not engrained in the hearts and minds of those sworn to meet the FBI’ s mission,” to protect the American people and uphold the Constitution.

Both Trump and Biden are the subject of special counsel inquiries into their handling of classified documents. Biden’s son, Hunter Biden, is under investigation for tax and gun crimes. Republicans are also watching closely if the FBI will act on evidence of millions in payments that appear to have been sent from foreign entities through a network of shell corporations to members of the Biden family.

Given the FBI’s history of handling the Trump and Clinton investigations, there is little to suggest the bureau has any safeguards in place to assure the American public that it will afford Trump and Biden equal treatment.

In response to Durham’s report, the FBI noted that the agency’s leadership has changed since the events Durham examined and pointed to “dozens of corrective actions” the bureau undertook.

“Since assuming the position in August 2017, Director Christopher Wray has repeatedly emphasized the importance of doing the right thing the right way,” the FBI letter states. “The FBI is committed to that bedrock principle and to discharging our responsibilities objectively and free from political bias.”

The actions listed in the letter, signed by Jason Jones, general counsel of the FBI, consist largely of new and updated forms, guidance documents, paperwork and process updates, and other policy and procedure changes. None of the changes appear designed to directly thwart the misfeasance before and after the 2016 election.

Durham’s four examples of disparate treatment, each favoring Clinton, are in addition to the distinct treatment afforded to the former secretary as part of the FBI’s probe of her use of an unauthorized email server. The bias and special treatment of Clinton in that investigation has already been exposed by the Department of Justice Office of Inspector General.

The handling of the email server and Trump–Russia investigations is closer to an apples-to-apples comparison because both were run by the same Trump-hating FBI agent. Peter Strzok, who was fired from the bureau for his conduct in the Trump probe, used a government-issued phone to discuss preventing Trump from being elected and mentioned an “insurance policy” in the event Trump won.

Illegal Donation Ignored

The new examples of divergent treatment of Trump and Clinton unearthed by Durham show that the well-examined Strzok saga was not an aberration. In November 2015, the FBI received a tip from a confidential source that a foreign government insider was seeking to set up a meeting with Clinton. The confidential source believed that the topic of the meeting was a potential donation to the Clinton campaign in exchange for protection from the foreign government, the Durham report states.

In that case, the FBI permitted its source to continue interacting with the foreign government insider up to the point when the source made an illegal campaign contribution of $2,700 on behalf of the foreigner. The source told the FBI that the campaign staff were “okay with” the illicit payment and “were fully aware from the start.”

The source offered to provide a copy of the credit card receipt as proof, but the FBI appears to never have collected the evidence. The handling agent could not explain to Durham’s investigators why he never documented the illegal donation in FBI records. Instead of following up on the investigation, the agent warned the confidential human source to stay away from Clinton campaign events.

“Do NOT attend any more campaign events, set up meetings, or anything else relating to [Clinton’s] campaign. We need to keep you completely away from that situation. I don’t know all the details, but it’s for your own protection,” the FBI agent wrote to the confidential human source.

Clinton Foundation Investigations Frozen

The FBI field offices in Washington, New York, and Little Rock opened investigations in January 2016 into potential criminal activity at the Clinton Foundation. The investigations appear to have been prompted by a book titled Clinton Cash, which showed that tens of millions of dollars poured into the foundation from foreign sources who ultimately benefited from a decision made by the Obama administration during Clinton’s tenure.

In one of the meetings between the three offices in February 2016, Andrew McCabe, the deputy director of the FBI, directed the three investigations to be closed but received pushback. McCabe instead required the three offices to obtain his permission for any overt investigative activity, virtually freezing the inquiries.

Three months later, in May 2016, FBI Director James Comey directed the New York field office to “cease and desist” its Clinton Foundation probe. Comey cited a “counterintelligence” concern as the reason. Durham’s investigator could not determine what the concern was. In August, a call was held during which the Little Rock and Washington offices were directed to close their investigations and merge them into the already dormant New York case, according to Durham.

The special counsel underlined that the investigations by the New York and Washington field offices were opened as “preliminary” due to the unvetted nature of the information, while the Trump campaign probe was opened immediately as a full investigation, even though it was similarly predicated by unvetted hearsay.

The Clinton Plan

Durham’s most poignant example concerns an investigation the FBI never opened. In the summer of 2016, U.S. intelligence agencies obtained a Russian intelligence analysis that stated that the Clinton campaign had approved a plan to smear Trump by connecting him with Russian President Vladimir Putin and Russian hackers looking to interfere in the election.

Then-CIA Director John Brennan personally received the intelligence and relayed it to the president, the FBI director, and the director of national intelligence.

Durham investigated the referral because its details matched the flow of Clinton-funded and Clinton-connected information into the FBI in 2016 and suggested that the different pieces may have been part of a plan. The special counsel’s investigators found that some of the FBI personnel working on the Trump investigation never learned of the referral.

One investigator, when shown the Clinton Plan memo “became visibly upset and emotional, left the interview room with his counsel, and subsequently returned to state emphatically that he had never been apprised of the Clinton Plan intelligence and had never seen the [memo],” the report states.

The memo did not reach even some of the highest-ranking officials in the bureau, including FBI general counsel James Baker. When interviewed by Durham’s team, Baker said he would have been much more skeptical about the Steele Dossier and the Alfa Bank allegations had he seen the memo.

Durham called the FBI’s failure to factor in the Clinton Plan intelligence into its decision-making in the Trump investigation “a rather startling and inexplicable failure.”

“The FBI thus failed to act on what should have been—when combined with other, incontrovertible facts—a clear warning sign that the FBI might then be the target of an effort to manipulate or influence the law enforcement process for political purposes during the 2016 presidential election,” the report states.