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FILE – In this April 25, 2006, file photo, John Durham speaks to reporters on the steps of U.S. District Court in New Haven, Conn. On Monday, Aug. 24, 2009, Attorney General Eric Holder is assigned prosecutor John Durham to investigate CIA mistreatment of terror suspects. (AP Photo/Bob Child, File)

 

Yeah, I know I sound like a “know-it-all”, but this is one subject where it is necessary to know how the “sausage is made” in this kind of investigation to understand one possible reason that might explain Nora Dannehy’s resignation on Thursday night.

I have no information on the reasons for Dannehy’s departure, but I think the media is peddling what they HOPE the reason might be, not the actual reason itself.

I have a theory, and to understand the theory you need to first understand the significance of Dannehy having joined Durham in March 2019.

She joined DOJ in 1991, and she left DOJ in 2010 when she was selected to be Deputy Attorney General in Connecticut, the No. 2 job in that office.

But while she worked for Durham during the Bush 43 Administration, she worked with him on two high-level sensitive investigations based on Attorney General appointments, and when she was Acting US Attorney in Connecticut she was, herself, tapped to lead another high-level investigation of potential government misconduct.

John Durham was appointed in 2008 by Attorney General Michael Mukasey to investigate the destruction of CIA videotapes of detainee interrogations. 

In August 2009, Attorney General Eric Holder appointed Durham to lead the Justice Department’s investigation of the legality of CIA’s use of so-called “enhanced interrogation techniques” in the torture of detainees.  Durham’s mandate was to look at only those interrogations that had gone “beyond the officially sanctioned guidelines. ”  

Dannehy was Acting US Attorney from 2008 to 2010, but even before that, she was tapped by Attorney General Mukasey in 2006 to investigate whether there was improper political motivation behind the dismissal of nine U.S. attorneys in 2006.

Among various reporting on her departure — and the rumors about why — it was reported that when she agreed to join the Durham “Review” as it was first called by Attorney General Barr in March 2019, she expected her service to last 6-12 months.

I noted on Twitter earlier that when she left DOJ in 2010, she was at the 19-year mark, which meant that her DOJ pension had not yet fully vested.  By returning in March 2019, expecting to serve one year, she would reach the 20 year service time for full vesting of her pension benefits.

When Durham’s “Review” turned into a “criminal investigation”, given that it came on the heels of two IG Reports — Mid-Year Exam and Four FISAs — there is a critical feature of such an investigation that is little understood except by people with experience doing police misconduct and public corruption cases.  This is because when done correctly, it is never a subject of further inquiry in any court case that follows so the public never hears about the matter or the people who were involved.

When Durham began a substantive criminal inquiry into the official actions of FBI and DOJ personnel, he immediately needed to ensure that his criminal investigators and prosecutors were not “polluted” by evidence that the law precluded them from using against the agents or other officials if a criminal case was later brought.

In Garrity v. New Jersey, the Supreme Court held that police officers under investigation for misconduct could not be compelled to answer questions by investigators, and have their answers used against them in a later criminal prosecution if the officers were told they would be suspended or fired from their jobs if they asserted their Fifth Amendment right to remain silent.

“The choice given petitioners was either to forfeit their jobs or to incriminate themselves. The option to lose their means of livelihood or to pay the penalty of self-incrimination is the antithesis of free choice to speak out or to remain silent. That practice, like interrogation practices we reviewed in Miranda v. Arizona is “likely to exert such pressure upon an individual as to disable him from making a free and rational choice.” We think the statements were infected by the coercion inherent in this scheme of questioning and cannot be sustained as voluntary under our prior decisions.”

The first thing a prosecution team must do when initiating this kind of investigation is to insulate the investigators and prosecutors from being exposed to material they should not see because of Garrity.  This is done through the creation of a “filter” team — one or more prosecutors and a few investigators whose job it is to go through everything amassed during the IG’s investigation, and “filter out” any compelled statements that might violate Garrity.  IG Horowitz’s two investigations involved interviews of dozens of federal agents and other federal employees.  Many of them may have been given some form of Garrity warning — similar to a Miranda warning.  But it’s possible that some were warned that a failure to answer IG questions could lead to an adverse job action for refusing.  The judgment about whether the IG interview amounted to a “compelled” statement or not is a case-by-case determination.  So the “filter team” has to go through every interview done by the IG for that purpose, and separate out any interviews which might be a problem.  The prosecutors and investigators never see those interviews because doing so would “contaminate” them with information they are not entitled to use against potential defendants in building a criminal case.

Sometimes this process requires “interviewing the interviewers” — meaning the “filter team” would actually sit down with Horowitz’s agents and go over the interviews they did to rule out any issues of whether the statements given fit the definition of being “compelled” under the Garrity.  So this is not necessarily a quick process to complete.

The “filter team” then has to determine if any specific evidence collected in the IG investigation was produced solely as a result of information learned from a “compelled” statement.  If such evidence is found, that evidence is “fruit of the poisonous tree” and is “filtered out” so the prosecution team never sees it.

It is also the role of the “filter team” to see if there is an “independent source” for that evidence.  Is there another route that the prosecutors could follow to come up with that same evidence — a route that does not depend on what was learned in the “compelled statement.”  If so, then the evidence can remain in the case file when it is handed to the prosecution team.

This “filter team” has to work independently of the leader of the investigation.  Durham can’t know of any of the information filtered out because that would contaminate him as well.

Once the “filter” work is done, the “filter team” is disbanded because they cannot remain with the prosecution — they possess information about compelled statements that the prosecution cannot know.  A “Garrity” file is created that has all the information and statements that have been removed from the IG case file, and that is maintained separately in case the need ever arises to document what information was not given to the prosecution team.

These are well established and well-understood practices and procedures in DOJ.   Durham would have needed someone he knew and trusted, and someone who had done sensitive work like this in the past to lead that “filter team.”  Their decisions on what to provide the prosecution team and what to hold back would be crucial in how the case developed.

If indictments are imminent, this is generally the point you would expect the “filter team” to depart.

I don’t know if Dannehy was part of the “filter team” or led the “filter team.”  But the 6-12 month time frame she was originally given would be consistent with that role.  She fits the part of someone whom Durham would have called on to serve in that role, and the time of her departure is consistent with having served in such a capacity.