McCarthy wades in on Durham filing.

Why Durham Filed the Motion That Generated a Feeding Frenzy

David is right on the money regarding special counsel John Durham’s most recent court submission — which, it should be noted, is a response to a motion by the defense, not a response to media coverage, much less a retreat in the face of media coverage.

As Rich and I discussed this morning while recording the recently posted TMR podcast, there are always specific, case-related reasons why prosecutors make pretrial court submissions that proffer sundry details about what they will seek to prove at trial. These reasons relate not to what the public is curious about, but to whatever the submission in question is asking the judge to do (if it is a government motion), or to respond to whatever a defense motion has asked the judge to do. As a result, the prosecutor’s sense of the proffered information’s relevance is likely to be very different from what seems relevant to journalists and partisans (some of the former are also the latter). The prosecutor’s understanding of the information he proffers — both of its nature and how it relates to other information that is germane to the case but not discussed in the submission — is also apt to be better informed than that of commentators. That’s not because the commentators are partisans or morons (though some are); it’s because the investigator always knows things we don’t, is always aware of details that for us are gaps in need of filling.

Under Supreme Court precedents, waivers involving constitutional rights must be knowing and voluntary. In the potential-conflict situation, then, the judge must make a record that the defendant was fully informed about the potential conflict, and made an uncoerced decision that keeping his potentially conflicted lawyer was worth forfeiting the right to claim harm from the conflict. To do that, the judge must walk the defendant through the evidence that bears on the conflict, and make sure the defendant understands how his interest in challenging that evidence could be harmed by the lawyer’s conflicting loyalties. The judge cannot do that unless the prosecutor has explained what that evidence is.

That is why Durham said what he said. Pace Mrs. Clinton and her sympathetic scribes, it was not a “right-wing lie.” It was the execution of a constitutional and professional obligation.

One doesn't have to read too far into this situation to get to the meat. The reality is that none of the media actors screaming at the tops of their lungs about this has even 1% of the information that Durham currently has. The most qualified person in the world to know what Durham should or should not be dong is Durham himself. Moreover, apparently some of these recent filings were actually legally required responses. 

But as McCarthy also points out. These filings are not for the media or political junkies looking for inside information. They are court filings that will quite possibly come into play in upcoming legal maneuvers or even a trial if it gets to that point. They were not intended to be used for the purposes that they are being used for (on both sides). 

As McCarthy (and others) have pointed out, the Durham probe looks a lot like the Mueller probe in that the only indictments so far are for lying to the FBI. There seems to be a lot of smoke and allegations about bad behavior, but how much of it is actually illegal is another story. It could boil down to a big report that exposes some bad behavior by people in power, but may not have much teeth. 

Of course there are others who claim that Durham is slowly building a case and that there will most definitely be more serious indictments coming down the pipeline. They point to a deliberate historical style of Durham and suggest he would have packed it in a long time ago if all he thought he had was a couple of misdemeanor perjury charges. Time will tell which argument turns out correct. I frankly wouldn't be too terribly surprised either way. We know some bad things happened, but what we don't know is if they can make a legal case.