Read the original article: The Statutory Authority for Barr’s Appointment of Durham as Special Counsel
On Dec. 1, Attorney General William Barr announced that he had appointed John Durham, the U.S. Attorney for the District of Connecticut, as a special counsel to investigate the FBI’s probe of Russian interference in the 2016 election. Though Barr appointed Durham formally on Oct. 19, he did not notify Congress until December. What statutory authority did Barr have to make this appointment? And how does that authority compare with Deputy Attorney General Rod Rosenstein’s appointment of Special Counsel Robert Mueller in 2017?
Barr and Rosenstein, respectively, appointed Durham and Mueller pursuant to the same three statutes: 28 U.S.C § 509, § 510, and § 515. The first statute vests broad supervisory powers in the attorney general, while the second statute authorizes the attorney general to delegate his powers to subordinates. The third statute is the most important for present purposes. Section 515 empowers the attorney general to authorize a “special assistant”—though not a “special counsel”—to conduct “any kind of legal proceeding, civil or criminal, including grand jury proceedings.” Both the Durham and Mueller appointments contain the same, critical sentence: “If the Special Counsel believes it is necessary and appropriate, the Special Counsel is authorized to prosecute federal crimes arising from the investigation of these matters.” This provision will allow Durham to bring federal prosecutions during the Biden presidency.
Neither Durham nor Mueller were appointed pursuant to the special counsel regulations promulgated by the Clinton administration. Rather, both appointment orders indicate that some of these regulations, including “28 C.F.R. §§ 600.4 to 600.10 are applicable to the Special Counsel.” It is not entirely clear what “are applicable” means, as this issue was never tested in courts. But at a minimum, it is clear that Durham was not appointed pursuant to these regulations—in particular, because 28 C.F.R § 600.3 provides that “The Special Counsel shall be selected from outside the United States Government.” Durham would not meet these requirements because he is the U.S. Attorney for the District of Connecticut. Barr, therefore, could not have relied on these regulations.
There is some precedent for appointing current federal officers for investigations of possible wrongdoing by government agencies. In 2005 Deputy Attorney General James Comey appointed U.S. Attorney Patrick Fitzgerald as a special counsel to investigate “the alleged unauthorized disclosure of a CIA employee’s identity.” But Comey did not cite the Clinton-era regulations. On the other hand, his letter appointing Fitzgerald made no reference to the special counsel regulations, either.
There is a significant distinction between a special counsel appointed pursuant to the regulations and a special counsel appointed pursuant to the attorney general’s statutory authority, but to whom some of the regulations apply. 28 C.F.R. § 600.7 imposes an important constraint on the executive branch: “The Attorney General may remove a Special Counsel for misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies.” Therefore, if Durham was not actually appointed pursuant to these regulations, the next attorney general could argue that the removal protections are not applicable to Durham.
Writing on Twitter, Lawfare’s Benjamin Wittes speculated about two possible paths the next attorney general could take. First, he wrote, the “attorney general could simply amend this order and make clear that the entire slate of special counsel regulations apply—and then remove Durham on grounds that his appointment is not, in fact, compatible with those regulations.” I’m not sure this option would work through a simple clarification. Subjecting Durham to new requirements could be viewed as a new appointment altogether, which could amount to removing him from his old position. And that removal would not be made in light of any misconduct. Durham could plausibly claim that the tenure protections for his initial appointment–including 28 C.F.R. § 600.7–were violated. And, in theory at least, Durham could sue the Attorney General to collect lost wages. It isn’t clear whether Durham could challenge his termination based on the loss of his salary. This issue was vigorously debated during the Mueller investigation, but never tested. The attorney general could also try to moot any potential litigation by keeping Durham on the payroll, but denying all of his requests to expand the investigation. The attorney general, however, would have to disclose these actions to Congress.
Wittes offers a second option: the next attorney general could “rescind this Barr order applying the special counsel regulations” to Durham. This step, Wittes wrote, would terminate the investigation. I think this approach would stand on a stronger footing. But the attorney general might hesitate to take this step because of external and internal pressures. To the general public, after all, the rescission of Barr’s order would be indistinguishable from firing the special counsel. Most people will not grasp the subtle nuance of this move. And given the fact that Barr never removed Mueller from his position as special counsel, there will likely be public pressure to allow Durham to complete his task.
The attorney general may also face internal pressures in this direction.
[…]
Read the original article: The Statutory Authority for Barr’s Appointment of Durham as Special Counsel
