U.S. Attorney John Durham To Investigate Origins Of The Russia Probe

NPR's Noel King talks with Robert Litt, former general counsel of the Office of the Director of National Intelligence, about the selection of John Durham to examine the inception of the Russia probe.

NOEL KING, HOST:

First we had the Russia investigation, and now we have the investigation into the investigation. Attorney General William Barr has assigned John Durham, the U.S. attorney in Connecticut, to examine the origins of the investigation that eventually led to the appointment of special counsel Robert Mueller. Here's Barr talking to Congress last month.

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WILLIAM BARR: I think there was - spying did occur. Yes, I think spying did occur.

UNIDENTIFIED PERSON: Well, let me...

BARR: But the question is whether it was predicated, adequately predicated. And I'm not suggesting it wasn't adequately predicated, but I'd need to explore that.

KING: Now, the so-called spying that Barr and Republicans allege occurred against members of the Trump campaign. In me with the studio now is Robert Litt. He's a former assistant U.S. attorney, also a former general counsel of the Office of the Director of National Intelligence. Good morning, Mr. Litt.

ROBERT LITT: Good morning.

KING: So U.S. Attorney John Durham was appointed by President Trump to his current position. You know him. What's he like as an investigator?

LITT: He's a very experienced investigator. He's a career prosecutor. He's served both Republicans and Democrats. He's very thorough and meticulous. He's had experience conducting this kind of inquiry before, most notably during the Clinton administration when he was asked to investigate the relationship of the FBI and Boston mobster Whitey Bulger. But he was also asked during the Obama and Bush administrations to look at issues revolving around the CIA's interrogation of prisoners.

KING: So a long history with this kind of work, and also for both Republican and Democratic administrations.

LITT: Yes. That's right.

KING: There are already two investigations into parts of the Russia probe. One is being conducted by the FBI inspector general, and one is being conducted by the U.S. attorney for the state of Utah. Why a third, and what are they expecting Durham can do that these two other investigations are not already doing?

LITT: Well, it's not clear. You'd have to really ask Attorney General Barr why he felt the third one was necessary. I have read that the U.S. attorney in Utah, John Huber, is not going to be doing this anymore, that what he was doing has now been assigned to John Durham. The inspector general's investigation has substantial overlap with this, and the inspector general and John Durham are going to have to work out how they're going to coordinate this. But this is something that the attorney general said he wanted to personally supervise, and the inspector general is supposed to be independent of the attorney general. So maybe the attorney general wanted his own personal look at it.

KING: What, typically, are the powers given to someone tasked with doing this sort of review? What can he do?

LITT: Well, he's not conducting a criminal investigation.

KING: OK.

LITT: So he cannot use grand jury subpoenas. He cannot use search warrants. He's basically going to be restricted to interviewing people and reviewing documents. Again, it's been reported that he's working with the CIA and the FBI in this, and so he'll have access to their files. But that's what he's going to be limited to, and then reviewing that and reporting to the attorney general.

KING: Let me ask you about the FBI. One of the questions being raised by Republicans on the Hill and lawyers for the Trump administration is the use of FISA warrants by the FBI. Their usage is what appears to have prompted the alleged spying that Attorney General Barr referred to in his Senate hearing. Is there a case to be made for questioning that process?

LITT: Well, it's important to note that the only FISA warrants that have been revealed so far took place against someone who was not a member of the Trump campaign at the time the FISA warrants occurred, which is Carter Page after he left the campaign. This was a counterintelligence investigation set up to investigate whether Russians were interfering in our electoral process. And FISA warrants are an important part of that process. They require approval by a court. They require an extensive factual showing. I think that this is - I've seen nothing that suggests there needs to be a wholesale reevaluation of the use of FISA in counterintelligence. It's an extremely important intelligence-gathering tool.

KING: Suppose that these inquiries do turn up some procedural missteps by the FBI. Does that throw the rest of the Mueller investigation into question?

LITT: Well, I think this is something that it's going to be very important for John Durham to focus on. Which is to say, if you take a retrospective look at almost any long-standing investigation - or any other kind of significant process, by the way - you're going to be able to identify things that, in retrospect, you say, well, gee, this should have been done a little bit differently. I think it will be very important for Durham, in his final report, to distinguish between things that significantly affect the integrity or the validity of the investigation and procedural errors or things that were not done quite right, and I think that that's going to be incumbent on him to make clear.

KING: Lot of work ahead - Robert Litt is a former general counsel of the Office of the Director of National Intelligence.

Thanks so much for coming in.

LITT: Thanks for having me.

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