Opinion: John Durham shouldn't play politics with Russian collusion report

Zack Smith

Some say it’s political for federal prosecutor John Durham to release his report into the origins of the FBI’s Russia collusion investigation before the upcoming election. Others say it’s political if he doesn’t.

Essentially, no matter what he does, someone is going to accuse John Durham of playing politics with his report.

So what should he do? It seems simple, but he shouldn’t play politics.

He has to tune out the noise, follow the facts and complete the investigation when it’s ready to be completed. He shouldn’t rush the results, but he shouldn’t drag his feet, either.

We’ve seen what happens when law enforcement officials bend the rules or try to play politics, Smith writes.

We’ve seen what happens when law enforcement officials bend the rules or try to play politics. They do it badly most of the time, and botched investigations, ruined reputations for the want-to-be political players and troubling infringements on the lives and liberties of American citizens all follow.

Durham need look no further than the subject matter of his own investigation to see this: Do we really need to remind everyone of the fall from grace (and rightfully so) of people like James Comey, Andrew McCabe, Peter Strzok and Lisa Page, just to name a few?

And do we need to remind everyone of the troubling surveillance of Carter Page, an American citizen who, in fact, had been assisting the CIA? Or the ongoing Michael Flynn saga?

Attorney General William Barr has said restoring the impartial administration of justice has been one of the top priorities of his tenure. He deserves kudos for that, and he can reaffirm that commitment by letting Durham do his work, following the facts of the case wherever they might take him.

Sure, this leeway can’t be unlimited, and Barr rightfully has supervisory power as the head of the Justice Department. But Durham has proven himself to be a competent, thorough and thoughtful prosecutor throughout his almost 38-year career at the Justice Department. As the New York Times reported, he “has investigated potential wrongdoing by the FBI and CIA for the Clinton, Bush, Obama, and Trump administrations.”

That’s an impressive bipartisan resume that’s increasingly hard to come by in today’s political climate.

More importantly, there have been recent reports that Durham is still running down new lines of inquiry, such as looking into certain aspects of the Clinton Foundation. But the fact is, we really don’t know what Durham has uncovered, or why he is pursuing these lines of inquiry. And that’s the way it should be. Conduct the investigation, and then release the results when it’s done.

If Durham finds nothing, then we all have the benefit of knowing he conducted an exhaustive review using the tools available to him.

If he finds something, appropriate actions, up to and including criminal prosecutions, can take place. We’ve already seen one such prosecution take place: Kevin Clinesmith, an FBI lawyer, altered an email that agents then relied on when seeking a warrant to surveil Page.

Everyone knows that investigations take time. While it’s important that voters have as much information as possible when they go to the polls, it’s equally, if not more, important that full, fair, impartial investigations be conducted, regardless of the political implications.

After all, “Equal Justice under Law” is more than an aspirational goal; it’s a bedrock principle of our legal system. And that can best be achieved when those charged with enforcing the law don’t play politics and simply follow the facts of a case wherever they may lead.

So if Durham can complete his investigation before the election, he should. If he can’t without botching it, he shouldn’t. But whatever he does, he must remember that his role is to enforce the law, not to be a poor-man’s politician.

Zack is a legal fellow in the Meese Center for Legal and Judicial Studies at The Heritage Foundation.