How Do You Solve a Problem Like John Durham?

Read the original article: How Do You Solve a Problem Like John Durham?


How should the next attorney general, whoever he or she turns out to be, handle the John Durham probe? 

The more I study what Attorney General Bill Barr did in his secret October order naming the Connecticut U.S. attorney as a special counsel, the more devilishly clever it seems—and the bigger the pickle it creates for Barr’s successor. This, presumably, is Barr’s intention. Untangling this knot is going to take no small amount of diplomacy, lawyering and finesse. And a false move in any of several directions could create a real mess. 

Let’s unpack the situation and then consider how a new attorney general might responsibly address it.

The Durham investigation—which focuses on the origins and conduct of the Russia investigation—began not as a criminal investigation but as an administrative review, ordered by Barr, of the Russia probe. As such, it has reportedly looked at everything from the integrity of the Intelligence Community Assessment (ICA) of Russian interference in the 2016 election to the handling of the Carter Page FISA application. At some point, however, the Durham probe became, at least in part, a criminal one, and it has prosecuted one person—former FBI lawyer Kevin Clinesmith—for falsifying an email in connection with the Carter Page matter. 

Beyond that one case, however, it has never been clear what exactly the Durham investigation is looking at. Many of the key figures in the Russia probe have never even been contacted. And the exhaustive inspector general’s report on the Crossfire Hurricane probe does not give rise, beyond Clinesmith’s case, to implications of criminal conduct. Durham has, in other words, spent 18 months rooting around in an unspecified combination of criminal and non-criminal matters: second-guessing intelligence and law enforcement conduct, following up criminally on referrals from the inspector general, running down Barr’s suspicions about how the Russia investigation really began, and exciting expectations on the right that the Russia scandal is about to finally be unveiled as a hoax.

It is against this backdrop that Barr back in October secretly transformed Durham from a mere U.S. attorney into, in addition, a special counsel. 

I actually don’t fault Barr for the secrecy of this move in the weeks before the election—though it does give the episode a shady air. It seems to me right, if Barr’s goal here was not to influence the election, to keep the matter confidential until after the election—though the even better course might have been to wait until after the election to act at all. In any event, nothing turns on the question of whether Barr announced it in October or this week. So let’s give Barr a pass on this point and focus only on the merits of the decision.

The first real oddity of the move is that it was quite explicitly designed to burden a potential Joe Biden administration with a special counsel. Barr specifically described it, in fact, as intended “to provide [Durham] and his team with the assurance that they could complete their work, without regard to the outcome of the election.” Note that since the incumbent president is enthusiastic about the Durham investigation, the only conceivable threat that Barr could be protecting against here is the threat of Biden winning and Barr’s being replaced by someone inclined to curtail Durham’s probe. So the words “without regard to the outcome of the election” may as well read “even if Biden becomes president and I am no longer attorney general.”

The move has the effect of saddling Biden with a special counsel investigation. Because while as a U.S. attorney, Durham can—and likely will—be dismissed in the normal course of the change of administration, as a special counsel he is protected from removal by regulations that require he can be fired only for “good cause” or for some gross impropriety. He is also guaranteed a certain amount of day-to-day independence.

But Barr’s order goes further in two key important respects, both flagged in this excellent piece by Josh Blackman. First, it gives Durham a sweeping mandate. Under Barr’s appointment order, Durham is authorized to examine:

whether any federal official, employee, or any other person or entity violated the law in connection with the intelligence, counter-intelligence, or law enforcement activities directed at the 2016 presidential campaigns, individuals associated with those campaigns, and individuals associated with the administration of President Donald J. Trump, including but not limited to Crossfire Hurricane and the investigation of Special Counsel Robert S. Mueller, III.

Consider for a moment the breadth of this mandate. Durham gets to look not merely at whether anyone broke any law in connection with the origin or conduct of the Russia investigation during the campaign but whether anyone in the Mueller investigation broke any law at any time—a matter about which there has been no public suggestion of any kind. As Blackman rightly notes, “Durham can investigate anyone who potentially violated any law that is in any way connected with the investigation of the 2016 election. And that investigation can target Mueller and his staff.”

Barr’s order does something else too: it creates a mandate for a public report from Durham. The regulations themselves do not do this. They require only a confidential report from the special counsel to the attorney general explaining the special counsel’s prosecution and non-prosecution decisions. But Barr’s order goes a step further, requiring that: “In addition to the confidential report required by 28 C.F.R. § 600.8(c), the Special Counsel, to the maximum extent possible and consistent with the law and the policies and practices of the Department of Justice, shall submit to the Attorney General a final report, and such interim reports as he deems appropriate, in a form that will permit public dissemination” (emphasis added). 

In other words, Barr—having already had Durham pursue a non-criminal review of Justice Department and FBI conduct and having given him a sweeping jurisdictional mandate to investigate anything he wants—now gives him an extra-regulatory requirement to write about it all in public. 

There’s a third clever thing about Barr’s appointment order for Durham: On the surface, at least, it closely resembles the appointment order for Mueller himself. As Blackman summarizes: 

Barr and Rosenstein, respectively, appointed Durham and Mueller pursuant to the same three statutes: Become a supporter of IT Security News and help us remove the ads.


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