Over the past few days, there’s been much speculation over whether Attorney General Eric Holder will launch an investigation into the CIA’s use of torture after 9/11. One of the top contenders in leading an investigation seems to be John Durham, a name you probably don’t recognize--or may have forgotten. So who is this low-key prosecutor that may take on the most high-profile national case since Watergate?
Durham began his career at the Connecticut state attorney’s office shortly after graduating from University of Connecticut Law School in 1975. He quickly made a name for himself targeting and tracking career criminals and corrupt government officials. By the early ’90s, working out of the U.S. attorney’s office in Connecticut, he was receiving national attention heading cases against New England crime kings, providing evidence to put John Gotti behind bars, and going after crooked politicos like former Connecticut governor John Rowland. In 1999, he was asked by former attorney general Janet Reno to investigate a number of corrupt state police officers and FBI agents in Boston that had been working with the mob (a case whose players served as inspiration for characters in the Oscar-winning film, The Departed).
During the ’80s and ’90s, Durham became known in New England as the “white knight”: dogged, spotlight-shy, puritanical, and successful. He’s a devout Catholic that takes no prisoners in the court room. As of 2001, he’d never lost a case. In July 2004, he was awarded the Award for Exceptional Service by then-Attorney General John Ashcroft. Quinnipiac law professor Jeffrey Meyer, who worked alongside Durham for many years, told me, “Think of him as the second coming of Patrick Fitzgerald”--the federal prosecutor in charge of investigating the Valerie Plame and Rod Blagojevich affairs. Durham maybe be a little less press-hungry than Fitzgerald; Meyer told me that at the U.S. attorney’s office in Connecticut, they had the “Durham rule”: “Don’t talk to reporters, don’t showboat. Get the job done without regard to any kind of publicity.”
It’s difficult to find any negative statements that have been printed about Durham--on a personal or professional level. In a 2001 Hartford Courant profile, a New Haven defense lawyer told the reporter, “You underestimate Durham at your own peril.” Even a Boston lawyer who had previously squared-off against Durham said, “He’s such a decent guy you can’t hate him.”
Durham, despite being a registered Republican, is often described as an “outsider” and “apolitical”--two traits which would seem necessary in a case such as the Bush torture tactics that is so inherently politicized. “There is not a partisan bone in his body,” Meyer told me.
Others are more skeptical of Durham’s “outsider” status--particularly since being appointed a special prosecutor in 2008 by then-Attorney General Michael Mukasey to investigate the CIA’s destruction of 92 videotapes that supposedly document secret interrogations. At the time of the appointment, Slate’s Dahlia Lithwick called him “the inside-outsider” and quoted Georgetown law professor Marty Lederman as saying, “There’s nothing really ‘outside’ about John Durham. He’s a career DOJ prosecutor, the number two official in the U.S. Attorney’s Office in Connecticut … [and he] will still report to the Deputy Attorney General, who in turns reports to Judge Mukasey.” Lithwick also quoted Congressman John Conyers, Jr., who at the time contended that in appointing Durham, Mukasey “stepped outside the Justice Department’s own regulations and declined to appoint a more independent counsel in this matter.”
The big question is how Durham’s previous experience will prepare him for the challenge of investigating Bush administration officials. His grounding in CIA-torture issues certainly gives him an advantage over most other outside-D.C. prosecutors on Holder’s short-list. But beyond that, most of Durham’s previous experience has been with cases with a clear right and wrong--such as fighting organized crime and gang violence. How will Durham deal with less clear-cut issues? Meyer, who still sees Durham from time to time, told me that he doesn’t think Durham’s moral convictions will complicate the prosecutor’s way of working. “[He] just wants to do his job and do it the right way. … With 20-plus years experience, there’s no reason to believe he’d confuse what is criminally chargeable and morally objectionable.”
Kevin O’Connor, who was the U.S. attorney general in Connecticut and worked with Durham for six years, echoed this sentiment: “He’s not afraid to bring a tough case [to trial] and he’s not afraid to close a case that people want to bring to trial if the evidence doesn’t support it and vice versa--no matter how badly prosecutors, the newspapers, or the people want it.” O’Connor sums up Durham as some who “loves his country, he loves his family, and he loves his job, and I frankly don’t think he gives a crap about anything else. I’ve never met a person who cares less about what people say about him and that’s what makes him who he is.”
Durham’s current purview is relatively limited. In investigating the destroyed CIA tapes, he was appointed as a special prosecutor not a special or independent counsel--as Fitzgerald was in the Valerie Plame case. This designation limits the breadth of his investigation and his independence, forcing him to report to the deputy attorney general. Congressional Democrats, particularly Jerry Nadler, asked Holder in May to expand Durham’s powers and scope of his investigation; Holder deftly evaded both questions.
Despite a push from certain Democrats, Holder still seems hesitant to act; such an investigation would break from Obama’s request that his administration not spend time looking at the past. But if Holder does in fact decide to move forward, his appointed prosecutor will have to deal with cases that former government lawyers described to the Times as a “complete mess.” We’ll see soon enough if Durham has the will (or even the chance) to clean up this mess.
Amanda Silverman is a reporter-researcher at The New Republic