'Unseemly whining': Legal experts rebuke John Durham’s criticism of juries

18 May 2023

For months, Fox News and other right-wing media outlets relentlessly hyped special counsel John H. Durham's investigation of the FBI's probe of Russian interference in the United States' 2016 presidential race. But Durham's investigation didn't expose the type of "Deep State" conspiracy that far-right MAGA Republicans were predicting.

In April 2019, then-U.S. Attorney General Bill Barr appointed Durham to conduct what was essentially an investigation of an investigation. Durham's findings led to three prosecutions, two of which resulted in acquittals. The third resulted in a guilty plea to a matter unrelated to Durham's probe — and a probation sentence. Durham was critical of the FBI, but he didn't show an all-out, far-reaching government conspiracy designed to undermine former President Donald Trump.

In an opinion column published by the Washington Post on May 17, journalist Aaron Blake argues that Durham Report goes too far in its criticism of jurors.

"Despite Republican claims to the contrary," Blake explains, "Durham's investigation didn't really move the needle on proving what the man who appointed him, Attorney General William P. Barr, suggested was a deliberate effort to 'sabotage' Trump's presidency. It instead rehashed much of what we already knew, and it pointed more toward 'confirmation bias' by federal law enforcement than political malfeasance."

The Post columnist continues, "But some of the ways Durham explains those shortcomings cause prosecutorial ethics experts to blanch. Somewhat akin to Trump and his allies, who have increasingly attacked the legal system, Durham points a finger at juries."

In his report, Durham argues that because jurors "can bring strongly held views to the courtroom in criminal trials involving political subject matters," it can be difficult to "empanel a fair and impartial jury." And law professor/ex-prosecutor Rebecca Roiphe told Blake it is "unusual and troubling for a prosecutor to publicly explain a decision not to charge in this way."

According to Roiphe, it is "particularly troubling for a prosecutor to voice confidence in an individual's guilt after he has been acquitted or after a decision not to charge, because the accused does not have the opportunity to defend himself or rebut the allegations."

Robert Gordon, a law professor at Stanford University in Northern California, told Blake that Durham's comments about juries are "not unethical, but it does strike me as unseemly whining."

Blake compares Durham's comments to Trump's.

"Durham's report comes as Trump has, in recent years — and even in recent weeks — repeatedly attacked the judicial system," the columnist observes. "Trump has frequently questioned his and his supporters' abilities to get fair hearings in heavily Democratic areas like New York City and D.C., and he has regularly invoked the idea of biased judges and juries. It's striking enough for a former president to point in that direction; it's almost unheard of for a powerful prosecutor."

Aaron Blake's Washington Post column continues here (subscription required).

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