Legal Expert Reveals Barr's Latest Move Was 'Devilishly Clever,' And Will Be Tough To Undo
Firing a special counsel is exceedingly difficult, as anyone who followed the saga of President Donald Trump vs. Robert Mueller can attest. Now, former Vice President Joe Biden may face a similar quandary if he manages to be sworn into the presidency on Jan. 20.
That’s because last week, Attorney General Bill Barr announced he had provided the prosecutor he appointed to look into the origins of the Trump-Russia investigation with special counsel status.
While the move to provide John Durham with extra protection from firing had been made in October, Barr didn’t announce it until after the election.
“Although I had expected Mr. Durham to complete his work by the summer of 2020, the COVID-19 pandemic, as well as additional information he uncovered, prevented him from doing so.” Barr wrote in a letter to both the chairmen and ranking members of the House and Senate Judiciary committees.
“In advance of the presidential election, I decided to appoint Mr. Durham as a Special Counsel to provide him and his team with the assurance that they could complete their work, without regard to the outcome of the election,”
According to The Associated Press, Barr appointed Durham “under the same federal regulations that governed special counsel Robert Mueller in the original Russia probe.”
“He said Durham’s investigation has been narrowing to focus more on the conduct of FBI agents who worked on the Russia investigation, known by the code name of Crossfire Hurricane,” the AP reported.
According to Benjamin Wittes, editor in chief of Lawfare and a senior fellow at the liberal Brookings Institution, the move created a problematic situation for Biden and whomever he chooses for attorney general.
“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,” Wittes wrote in a Friday piece.
“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.”
Wittes is hardly pro-Trump, just so we’re clear. He’s a close friend of former FBI Director James Comey and the kind of person tone-deaf enough to turn German Pastor Martin Niemöller’s anti-Nazi poem “First they came…” into a Twitter thread that began thusly:
Then he came for Andy McCabe and I said nothing because there was this inspector general report that said McCabe lacked candor.
— Benjamin Wittes (@benjaminwittes) February 9, 2020
So, no, neither poetry nor the ability to read a room (or reality) is this guy’s thing. However, he’s also a distinguished legal journalist who, despite having never practiced law or even gone to law school, isn’t necessarily out of his depth in his field of reportage. Perhaps malevolent toward Trump, sure — but not incompetent.
Wittes casts doubt on whether the Durham investigation is worth pursuing, given that only one individual has been prosecuted in the year-and-a-half probe: Kevin Clinesmith, a former FBI lawyer, pleaded guilty to altering an email used to secure a Foreign Intelligence Surveillance Court warrant against former Trump campaign adviser Carter Page, according to The Associated Press.
“Durham has, in other words, spent 18 months rooting around in an unspecified combination of criminal and non-criminal matters,” Wittes noted dismissively.
However, you get the impression that like the “Jurassic Park” game warden who can’t help but give the velociraptor that’s about to kill him credit for being a “clever girl,” Wittes has to give Barr a slow clap for what he did with the potentially incoming administration.
“The move has the effect of saddling Biden with a special counsel investigation,” Wittes wrote.
“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.”
And then consider the scope of Durham’s purview. The Special Counsel is authorized to investigate “whether 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,” Barr’s order stated, according to Wittes.
“Consider for a moment the breadth of this mandate,” Wittes wrote.
“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 [Lawfare contributor Josh] 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.'”
And then there’s the fact that, as Wittes noted, Barr’s order “creates a mandate for a public report from Durham, something the law doesn’t do.”
“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,” Wittes wrote.
And if Biden wants to marginalize Durham’s investigation or hem it in, Barr made another “devilishly clever” move: He fashioned it along the exact same lines as the Mueller investigation and made sure everyone knew it.
“This careful tracking of the Mueller appointment seems designed to make it awkward for a Democratic attorney general to come in and remove Durham or curtail his investigation,” Wittes wrote.
“After all, Democrats, and many Republicans too, drew a firm line in insisting that Mueller not be fired and be allowed to complete his work. They also took a hard line in insisting that the special counsel regulations on the independence of the special counsel be respected. By setting this up as a direct legal parallel to the Mueller investigation, Barr puts those suspicious of the Durham investigation and wanting to curtail it in the position of having to argue, all of a sudden, that it’s actually okay to fire a special prosecutor or to figure out ways around the special counsel rules.”
That could be a difficult position, to say the least, even for a political party with the mainstream media in its pocket.
Wittes questions whether or not the scope of this investigation is proper and whether Durham or his investigation meets the qualifications for a special counsel. He puts forth a roadmap for Durham’s potential removal and revoking Barr’s order about the scope of the investigation — although he quotes Blackman again, who said, “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.”
Of course, plenty of conservative legal scholars could have made similar Jesuitical arguments regarding Robert Mueller, and yet there he was. Wittes also tries to point out a situation where a “new attorney general will determine that there is still a job to do here but that Durham is the wrong man to do that job,” which is to say a Biden-appointed attorney general would be in the position of replacing Durham with his own pick to look into the Trump-Russia 2016 investigation.
That was done under the aegis of the Obama administration, however, where Joe Biden was the vice president — and possibly personally involved. While it’s not quite a new president choosing who investigates his own people, it’s not as far off as Wittes or Blackman might want you to believe, judging from context. Americans will grasp “the subtle nuances” of those moves.
“Barr has played a dirty trick on his successor — one that will put the next attorney general in a genuine bind,” Wittes concluded. “There likely won’t be a good way to handle that bind. The goal here should be to find the least bad way forward.”
I would agree. The best way forward will be for Durham to complete his investigation, no matter who’s in the White House after Jan. 20. Next?
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