Special counsel John Durham’s report into the Trump-Russia investigators should be submitted in a way that allows it to be released to the public when completed, the Justice Department said.
Sens. Chuck Grassley of Iowa and Ron Johnson of Wisconsin pressed Attorney General Merrick Garland for answers about Durham’s inquiry. Although the Biden DOJ did not fully answer Republican questions about Susan Hennessey, an appointee in the Justice Department’s National Security Division whom they said displayed “bias” toward Durham, it did provide some clarity on its thoughts on Durham’s impending report.
Deputy Assistant Attorney General Joe Gaeta told Johnson and Grassley in a letter that “because the Special Counsel’s investigation is ongoing, we cannot comment on the investigation or when it will be completed.”
Gaeta also referenced Barr’s October 2020 special counsel order, which stated that “in addition to the confidential report” Durham was required to submit to DOJ, “the Special Counsel, to the maximum extent possible and consistent with the law and policies and practices of the Department of Justice, shall submit to the Attorney General a final report, and such interim reports as he deems appropriate, in a form that will permit public dissemination.”
The Biden DOJ official confirmed, “The Department agrees with this statement.”
Barr quietly appointed Durham to be special counsel in October after assigning him the task in May 2019. Garland declined to promise he would protect Durham’s investigation or make his report public during his confirmation hearing.
In February, President Joe Biden asked all Senate-confirmed U.S. attorneys for their resignations. Durham was asked to step down as a U.S. attorney from Connecticut but stay on as special counsel. A DOJ official also said Delaware U.S. Attorney David Weiss was an exception, with then-acting Attorney General Monty Wilkinson asking him to stay on as he investigates Hunter Biden.
Hennessey, a former NSA attorney, was picked in May for a key role at the DOJ. The former CNN contributor and editor of the Lawfare blog has a history of defending the Trump-Russia investigation and had critiqued Durham’s inquiry.
Grassley and Johnson said they wanted answers from the DOJ because Hennessey “has repeatedly and publicly expressed partisan comments about previous and current investigations including the Justice Department inspector general’s review of Crossfire Hurricane and Special Counsel John Durham’s ongoing investigation, raising concerns that she is conflicted and should be recused from such investigations.”
In December 2020, the senators said Hennessey “expressed a clear partisan bias” when she tweeted: “Durham has made abundantly clear that in a year and a half, he hasn’t come up with anything. I guess this kind of partisan silliness has become characteristic of Barr’s legacy, but unclear to me why Durham would want to go along with it.”
Grassley and Johnson said Hennessey’s “bias against Durham’s inquiry presents a clear conflict that makes it impossible for her to be objective.”
Johnson and Grassley asked Garland to tell them whether Hennessey has any role in Durham’s inquiry, whether she has access to any aspects of Durham’s work, and whether she will be recused.
Gaeta did not directly answer the questions from Grassley and Johnson on whether Hennessey would recuse herself from the Durham matter.
Durham’s criminal inquiry has netted one guilty plea. Ex-FBI lawyer Kevin Clinesmith admitted he falsified a document during the bureau’s efforts to renew its FISA warrant against former Trump campaign adviser Carter Page.
Special counsel Robert Mueller’s investigation concluded Russia interfered in a “sweeping and systematic fashion” but “did not establish that members of the Trump Campaign conspired or coordinated with the Russian government.”
DOJ Inspector General Michael Horowitz criticized the DOJ and the FBI for 17 “significant errors and omissions” related to the FISA warrants for concealing potentially exculpatory information and the bureau’s reliance on British ex-spy Christopher Steele’s discredited dossier.