AMAC Exclusive – By Andrew Abbott
One month after Special Counsel John Durham’s explosive testimony before Congress, many Americans are still asking why there haven’t been more prosecutions and accountability for officials involved in perpetrating the Russiagate hoax.
Durham may have hinted at one big reason why in his final report– although his reasoning is unlikely to sit well with conservatives.
“There are also reasons why, in examining politically-charged and high-profile issues such as these, the Office must exercise — and has exercised — special care,” Durham writes. “First, juries can bring strongly held views to the courtroom in criminal trials involving political subject matters, and those views can, in turn, affect the likelihood of obtaining a conviction, separate and apart from the strength of the actual evidence and despite a court’s best efforts to empanel a fair and impartial jury.”
In other words, Durham seems to be saying, his probe did not result in more court cases and convictions because it was difficult to find juries who were unbiased enough to try the cases. In the same vein, the probe’s poor conviction record was quite clearly the fault of politically motivated juries, not his own shortcomings.
The official legal term for juries that return not guilty verdicts despite clear evidence of guilt is “jury nullification.”
Those who support jury nullification adhere to the belief that jurors, as representatives of the community, possess the authority to act as a check on unjust laws or to mitigate the harshness of the legal system. This view permits jurors to consider the broader context of a case, including factors such as the morality of the law, potential consequences of conviction, or whether the prosecution itself is unjust.
While jury nullification may be seen by some as a safeguard against oppressive laws or the misuse of legal power, it is a controversial and delicate subject in the legal system. Many believe that its use undermines the rule of law and may lead to inconsistent and unpredictable verdicts, while others view it as a valuable recourse to prevent miscarriages of justice.
Some of the most notable occurrences of jury nullification in American history came during the Jim Crow era in southern states. In perhaps the most infamous example, an all-white jury acquitted two men for the lynching of 14-year-old Emmett Till in 1955, despite obvious evidence of their guilt.
There has been strong evidence of politically motivated jury nullification in the few prosecutions that stemmed from the Durham probe as well – something which Durham alludes to in his report.
Days after Clinton campaign lawyer Michael Sussman was acquitted of lying to the FBI – despite clear evidence pointing to his guilt – the jury foreperson told Politico, “Personally, I don’t think it should have been prosecuted because I think we have better time or resources to use or spend to other things that affect the nation as a whole than a possible lie to the FBI. We could spend that time more wisely.”
The comments pointed to clear ideological bias within the jury – and raised the alarming possibility that the jury members could’ve reached a not guilty verdict based on these motivations, rather than an objective analysis of the facts of the case.
For Durham, concerns about jury nullification – something which may have been even more prevalent in potential cases against high-profile Democrats or intelligence officials – may have been a factor in choosing not to bring more prosecutions. From Durham’s perspective, one might question what was the point of filing more criminal charges if politically motivated juries would just acquit the guilty parties?
But that excuse does not sit well with many Republicans, who grilled the special prosecutor on why he didn’t do more to hold those responsible for Russiagate accountable. In one particularly heated exchange during Durham’s congressional testimony, Rep. Matt Gaetz (R-FL) accused Durham of being “part of the cover-up.”
“It’s not that you didn’t just charge,” Gaetz said. “You didn’t investigate. You didn’t investigate the Mueller team, analyzing their phones and tell us who gave the orders because you’re protecting those people.”
The prospect of juries making decisions based on politics rather than facts is indeed an alarming one for the future of the criminal justice system in the United States – particularly as Democrats launch politically motivated prosecutions of their chief political rival, former President Donald Trump.
At the same time, prosecutors like Durham also have a responsibility to pursue justice – no matter how difficult it may be. After years in which the Russiagate hoax consumed American politics and some of the most powerful people in the country lied in a coordinated effort to take down a president, the American people deserve no less.
Andrew Abbott is the pen name of a writer and public affairs consultant with over a decade of experience in DC at the intersection of politics and culture.