Merrick Garland dodges questions over allowing for completion of Durham probe

Judge Merrick Garland, President Joe Biden‘s nominee for attorney general, on Monday said he sees “no reason why” Special Counsel John Durham should stay in his position to continue his investigation into the origins of the Trump-Russia probe.

On Monday during Garland’s confirmation hearing in front of the Senate Judiciary Committee, Sen. Chuck Grassley (R-Iowa), the committee’s ranking member, asked Garland about if he would let Durham continue his investigation.

“Will you commit to providing Special Counsel Durham with staff, resources and funds needed to thoroughly complete his investigation?” Grassley asked.

Biden’s pick to head the U.S. Department of Justice (DOJ) replied, saying that, at the current moment, he does not have “any information about the investigation as I sit here today.”

“I understand that he has been permitted to remain in this position and sitting here today, I have no reason to think that was not the correct decision,” Garland said, adding that he does “have to have an opportunity to talk with” Durham.

“I don’t have any reason, from what I know now, which is really very little, to make any determination on that ground,” Garland continued. “But I have no reason to think he should not remain in place.”

Grassley pointed out that, during former Attorney General William Barr’s confirmation hearing, he stated it was “vitally important” that then-Special Counsel Robert Mueller be allowed to finish his Trump-Russia probe.

The Iowa Republican asked Garland again, but rather about if he would commit to letting Durham’s report to be made public.

“I am a great believer in transparency. I would, though, have to talk with Durham and understand the nature of what he’s been doing and the nature of his report,” Garland said.

Grassley said he understood that Garland was limited in what he could say regarding the Durham investigation, but was frustrated that the judge didn’t provide a stronger commitment.

“Your [answers] were not quite as explicit as I’d hoped they’d be,” the Iowa senator said. “I think you’ve come close to satisfying me, but maybe not entirely.”

Shortly following the conclusion of Special Counsel Robert Mueller’s investigation into now-debunked allegations the Trump campaign colluded with Russian officials to swing the 2016 election in then-candidate Donald Trump’s favor, Durham’s probe launched in May 2019. Ultimately, Mueller’s yearslong probe yielded no evidence of criminal conspiracy or such collusion between Russians and the Trump campaign.

Back in October last year, Barr appointed Durham as special counsel so that Durham could continue his investigation.

Conservatives have long accused Mueller’s probe of being motivated by political animus, with former President Donald Trump having repeatedly called the investigation a “witch hunt.”

Thus far, Durham’s investigation has resulted in only one criminal charge.

Late last month, former FBI lawyer Kevin Clinesmith was sentenced to one year of probation and 400 hours of community service for altering an email during Mueller’s investigation that was used as grounds for the surveillance of former Trump campaign adviser Carter Page.

Back in August, Clinesmith had pleaded guilty to “one count of making a false statement within both the jurisdiction of the executive branch and judicial branch of the U.S. government, an offense that carries a maximum term of imprisonment of five years and a fine of up to $250,000.”

Significantly, the DOJ used Clinesmith’s allegation as a basis for submitting a third and final application to surveil Page under the Foreign Intelligence Surveillance Act (FISA).

South Carolina Sen. Lindsey Graham (R) asked Garland about FISA, as well as about DOJ Inspector General Michael Horowitz’s report on abuses of FISA during the origins of the Trump-Russia probe.

“There were certainly serious problems with respect to the FISA applications for Carter Page,” Garland said, adding that the inspector general had a “substantial” amount of suggestions for how the FISA system “could be fixed and must be fixed.”

Garland stated that, if confirmed by the Senate, he plans to talk with Horowitz and FBI Director Christopher Wray “to make sure these and any other things necessary” with regard to FISA reform “be done.”

“I am always very concerned, and have always been concerned that we be very careful about FISA,” Garland said, referring to it as a “very useful and important” tool for investigations.

As to whether he feels Durham’s probe was legitimate, Garland said: “I don’t know really anything about the investigation.”

“I do think that somebody should look at what happened with respect to those FISAs and I believe the inspector general has done that,” the judge added.

You can follow Douglas Braff on Twitter @Douglas_P_Braff.

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