The Fox News-fueled Justice Department probes then-President Donald Trump demanded as rebuttals to special counsel Robert Mueller’s investigation generated plenty of frothy Fox content. They also gave Republican partisans excuses to discount the obviously unethical and potentially illegal behavior of Trump and the crimes of his underlings. But efforts to turn the network’s conspiracy theories into federal cases have tended to diminish and fail under the scrutiny of prosecutors, judges, and juries.
Years of claims from Sean Hannity and others at Fox that a criminal probe had been needed to “investigate the investigators” received two body blows on Tuesday. First, a jury found former Clinton campaign lawyer Michael Sussmann not guilty of lying to the FBI in one of the few charges brought by special counsel John Durham’s three-year probe of the origins of Mueller’s investigation. And that night, newly released documents revealed that a Trump-appointed U.S. attorney assigned by then-Attorney General William Barr to review allegations regarding the purportedly sinister “unmaskings” of former Trump adviser Michael Flynn and other people associated with Trump’s transition team had concluded in September 2020 that those actions had been routine and that no criminal investigation into them was justified.
Hannity and his fellow travelers had responded to the initiation of Mueller’s probe into Russian interference in the 2016 election by furiously manufacturing a counternarrative in which Trump and his associates were victims of a witch hunt and the real crimes were all committed by overzealous, anti-Trump investigators. The Fox hosts’ coverage created incentives for Republican politicians to join in, and over the years, they together concocted a hodgepodge of slipshod allegations. The pseudoscandal’s shorthand quickly became impenetrable to anyone who wasn’t a regular viewer of the network, with adherents throwing around terms like Obamagate, #ReleaseTheMemo, Uranium One, and Operation Boomerang, to name a few. Hannity’s cabal claimed that a legal reckoning was coming for an array of high-ranking public officials, including former President Barack Obama and former Secretary of State Hillary Clinton.
While this might have just been overheated nonsense for Fox’s audience under normal circumstances, at the time, the network’s most avid viewer was the president of the United States. He adopted Fox’s conspiracy theories in his public statements and replaced the recalcitrant Jeff Sessions with the more compliant Barr, a favorite of Fox hosts who hoped he would launch the probe they desired. This ultimately came to pass when Barr appointed Durham in 2019 to conduct first an administrative review, then a criminal inquiry, and in 2020 a special counsel investigation into the initial Russia probe. Trump’s campaign explicitly credited Hannity for the investigation into what its spokesperson termed “the misdeeds of the Obama administration.”
Hannity, for his part, described Durham’s appointment in 2019 as a “major, huge development” that would give “the deep state … every reason to be afraid, every reason to panic.” He later argued that if the investigation did not result in convictions, “the great American republic will disintegrate before your eyes.”
The Durham probe has provided Fox with years of content. The network has aired more than 2,000 weekday segments that discussed his investigation or the origins of the Mueller probe since his May 2019 appointment, more than 500 of which came after he was named special counsel in October 2020, according to Media Matters' internal database. And Trump eagerly watched the coverage — during a September 2020 presidential press conference, he reeled off half a dozen shows that had covered the investigation that day, calling it “the biggest political scandal in the history of our country” as he tried to use the cloud of the phony scandal to bolster his reelection campaign.
However, Durham’s investigation has proven less effective in court. His prosecutors secured a guilty plea from former FBI lawyer Kevin Clinesmith for altering a document used to justify the surveillance of a Trump campaign aide, but the judge believed Clinesmith’s argument that he had not intended to mislead his colleagues but had inserted words he believed were accurate and sentenced him to probation. Sussmann, charged with a single count of lying to an FBI agent over his role in an aspect of the Russia story so minor that Hannity had barely mentioned it, was found not guilty by a unanimous jury, with the forewoman stating that the government had wasted their time. The only person remaining on Durham’s public docket is Igor Danchenko, a Russian national who contributed to the Steele dossier and is charged with five counts of making false statements to the FBI.
Durham’s investigation has now dragged on for more than three years. During that time the Justice Department’s inspector general concluded that the Russia probe was properly predicated. It is reasonable to conclude both that Durham does not have the goods and that he has inadvertently debunked the conspiracy theory he was appointed to prove. By contrast, it took Mueller’s team less than two years to deliver a completed report detailing Russia’s “sweeping and systemic” interference on Trump’s behalf in the 2020 election and Trump’s own potential criminal actions, and his prosecutors secured guilty pleas or convictions against a lengthy list that included Trump’s 2016 campaign chair Paul Manafort, his deputy, Rick Gates, Trump’s longtime political consigliere, Roger Stone, and his first national security adviser, Michael Flynn.
But Fox narratives can never really fail, they can only be failed – the likes of Hannity will never admit they got it wrong. Instead, the Fox prime-time host opened Tuesday night’s show by claiming that “America's two-tiered system of justice is alive and well” and arguing that Sussmann’s jury was “tainted.”
“In my humble opinion, Durham likely knew exactly what he was up against in the D.C. courts knew the makeup of the jurisdiction and the D.C. swamp is leftist liberal and likely was not counting on a conviction as much as getting more important information out to the general public,” Hannity later added. “In other words, this is a preview of coming attractions. Forget about Sussmann. It's the system, what the system is.”
At around the same time Hannity was telling his audience that justice was right around the corner, another aspect of Fox’s counternarrative collapsed.
In May 2020, Richard Grenell, an unscrupulous political operative then ensconced as acting director of national intelligence, produced what he claimed was a list of senior Obama administration officials who “unmasked” Flynn, receiving his name after they followed the National Security Agency’s standard process and asked the agency to reveal the identity of an individual generically referenced in an NSA report. While it was always unclear that the unmasking had been inappropriate, Fox gave the story wall-to-wall coverage, running at least 250 weekday segments that touched on the “unmasking” story or the broader “Obamagate” conspiracy theory that month alone, according to Media Matters’ database.
But on Tuesday night, Buzzfeed’s Jason Leopold and Ken Bensinger produced a September 2020 report then-U.S. Attorney John Bash authored for Barr indicating that his review had found no predicate for a criminal investigation and concluding that senior Obama officials had not unmasked Flynn “for political purposes or other inappropriate reasons.” Indeed, Bash concluded that contrary to the overheated Fox rhetoric that flowed from Grenell’s document, "all but one of the requests that listed a senior official as an authorized recipient of General Flynn’s identity were made by an intelligence professional to prepare for a briefing of the official, not at the direction of the official.”
Over the years, Fox took its audience down a rabbit hole, and the Justice Department followed. But the lack of successful prosecutions does not mean that Fox’s effort was fruitless. The House select committee Fox demanded to investigate the 2012 Benghazi attacks found no illicit actions by Hillary Clinton, but it did uncover her use of a private email server, and while the FBI investigation into her activity ultimately cleared her, the resulting political damage likely cost her the 2016 presidential election.
Fox-fueled investigations may not put anyone in jail – but they can still stir up enough political controversy to help the GOP win elections. And for a propaganda organ that effectively runs that party, that may be enough.