Opinion | Durham’s investigation reveals nothing except a broken process

When then-Attorney General William P. Barr appointed Mr. Durham to investigate the investigators of Trump-Russia ties, Mr. Barr appeared determined to uncover a vast plot on the part of government officials who could be criminally prosecuted for their misdeeds. Instead, Mr. Barr’s handpicked special counsel confirmed only what the public already learned in a previous report from Justice Department Inspector General Michael E. Horowitz.

The upshot: There were flaws in the FBI’s handling of the matter, especially involving dubious Foreign Intelligence Surveillance Act (FISA) applications to surveil 2016 Trump adviser Carter Page, but they flowed from confirmation bias rather than politically motivated misconduct. Though Mr. Durham continues to disagree that it was appropriate for the FBI to open a full investigation, rather than a preliminary one, he makes no finding that doing so was prohibited under agency rules. There was no involvement by the CIA, National Security Agency or any other snoops. And there is no reason to send anyone to prison. Indeed, the special counsel faced two acquittals in the cases he developed and a guilty plea resulting from a referral by the Justice Department’s inspector general.

So what has this $6.5 million process accomplished? Plenty — but none of it good. Even now, conservatives are seizing on Mr. Durham’s report, which contains indignant rhetoric that suggests dramatically more wrongdoing than its substance backs up, to assert a deep-state plot. The probe’s very existence during an election cycle already served as a talking point for Mr. Trump’s allies, who promised time and time again that Mr. Durham was going to lay bare the “crime of the century.”

This story could have been even worse: The New York Times reported in January that Mr. Barr pressured Mr. Durham to deliver an interim report centered on the Clinton campaign ahead of the 2020 election.

The special counsel’s only recommendation for reform is narrow — to create a sort of devil’s advocate role within the FBI to challenge investigators’ assumptions in politically sensitive investigations. And even this suggestion does less to address flaws in the FISA process and in high-profile FBI investigations more generally than others that were in the Horowitz report, many of which the agency has already implemented. The best way to ensure investigating agents’ claims are appropriately scrutinized before the government takes them to court, for instance, might be to further empower prosecutors by ensuring they get all the information, both exculpatory and inculpatory, that they need. Further reforms to make the FISA adjudication process more adversarial would also help.

But all this speaks to a bigger problem: Matters such as these shouldn’t even be in the purview of a special counsel, whose role is to decide whether to bring charges, then pack up and go home. These individuals operating under the Justice Department’s purview yet imbued with extra independence have a history of overspending resources and reaching beyond their mandates. The attorney general, technically still in charge, has some power to constrain them — yet this case shows clearly what happens when he does the opposite instead.

The current attorney general, Merrick Garland, overseeing two separate special counsel investigations into Mr. Trump and President Biden, should take note.