Law & the Courts

Russia Probe in Overtime: Unpacking Barr’s Latest Durham Appointment

U.S. Attorney John Durham (United States Attorney's Office, District of Connecticut/Wikimedia)
It does not appear Durham qualifies for the special-counsel post announced by the AG. Still, Biden would be wise to let the probe conclude.

Attorney General Bill Barr told the Associated Press on Tuesday that he has appointed Connecticut U.S. attorney John Durham as a special counsel under the same regulation that covered Robert Mueller, the special counsel who investigated alleged Trump campaign collusion with Russia.

The attorney general indicated that he made the appointment in October. Since Barr gave him the assignment in 2019, Durham has been investigating the politicized origins of the Trump-Russia investigation launched by the Obama administration during the 2016 presidential campaign.

Barr told the AP, “I decided the best thing to do would be to appoint them under the same regulation that covered Bob Mueller, to provide Durham and his team some assurance that they’d be able to complete their work regardless of the outcome of the election.”

Nevertheless, it does not appear that Durham, as a Justice Department lawyer, qualifies for a formal special-counsel appointment. We should hasten to add that the special-counsel regulations explicitly provide that any failure by the Justice Department to comply with their strict terms creates no enforceable rights or objections for any third party. (See Sec. 600.10 of the special counsel regs, in Title 28 of the Code of Federal Regulations). But, of course, neither would a special-counsel appointment by Barr be in any way binding on the attorney general in the incoming Biden administration.

To be sure, it makes perfect sense that Barr would want to insulate Durham’s work from the politics of the 2020 election and attempt, to the extent possible, to assure the conclusion of the probe when the Biden administration takes over the Justice Department in January. As I will discuss shortly, moreover, it would be in President-elect Joe Biden’s interest to have Durham complete the investigation. But unless Durham has left the Justice Department — and no reporting has suggested such a thing — he does not appear to fit the regulatory criteria for a special counsel.

Under Section 600.3 of the regs, “The Special Counsel shall be selected from outside the United States Government.” At the time Mueller was appointed, for example, he was a private lawyer no longer in government service.

The requirement that the appointee be from outside the government is necessary because of the conditions that trigger special-counsel appointments. Under Section 600.1, such an outside prosecutor should be named only when (1) a criminal investigation in warranted, and (2) that investigation would present a conflict of interest for the Justice Department — such that it would create serious ethical problems for the case to be investigated in the normal course by a district U.S. attorney’s office or a litigating unit of the Justice Department.

As I argued many times during the Trump-Russia investigation, Mueller should not have been appointed because there was neither a strong factual basis for a criminal investigation, nor a conflict that would have prevented the Justice Department from investigating the matter in the normal course. But, as noted above, such objections were not enforceable — it is the attorney general’s call.

To be clear, there is no doubt that Durham possesses the other qualifications required by Section 600.3. He has a “reputation for integrity and impartial decisionmaking,” as well as “appropriate experience to ensure both that the investigation will be conducted ably, expeditiously and thoroughly,” and that the decisions a prosecutor must make “will be supported by an informed understanding of the criminal law and Department of Justice policies.”

Durham has been under considerable pressure to produce results under difficult circumstances. Not only does the investigation present unique challenges, not least the involvement of foreign intelligence services and mounds of classified information. The coronavirus pandemic made it extremely difficult for much of this year to convene grand-jury sessions and to arrange travel so that pertinent witness interviews could be conducted.

Yet Durham has methodically continued his investigation and has obviously resisted outside political pressure, particularly from supporters of President Trump, to file indictments or issue a narrative report in connection with the alleged misconduct of investigators and others implicated in the probe. Indeed, in order to avoid any perception of interference in the 2020 election, the Justice Department made it clear this summer that neither Biden nor former President Obama was a subject of the investigation. No charges were brought during the run-up to Election Day. In fact, the only indictment Durham has so far brought was based on overwhelming proof of document falsification by former FBI lawyer Kevin Clinesmith, who pled guilty.

That is, Durham has conducted the probe in a manner consistent with his longstanding reputation for non-partisan scrupulousness and diligent investigating. And he has done it under Barr’s guidance, which the AG has publicly repeated a number of times, that the investigation is not to be influenced by political considerations and that charges should only be brought if there is compelling evidence of “meat-and-potatoes” crimes — no extravagant, creative theories of the kind invoked by overly aggressive prosecutors to notch big-name indictments.

Durham’s background and the manner in which he has conducted the probe should persuade the incoming Biden Justice Department that it is fortunate to have Durham at the helm of this investigation — just as the Obama, Bush-43, and Clinton Justice Departments were fortunate to have him leading sensitive investigations during their tenures.

Durham should be retained on merit. He has put nearly two years into the investigation. He has done nothing to suggest that the investigation is politicized. And it would rightly be perceived as the height of politicization if a Biden Justice Department were to close the case summarily without allowing Durham to see it through to conclusion.

If the new administration allows Durham to complete the investigation, it can be confident that the result will have integrity. Plus, Durham would be reporting to the attorney general Biden has appointed.

To the contrary, if Durham is shunted aside and the matter is abruptly dropped, half the country will assume this was done corruptly. If, as President-elect Biden maintains, he wants to unite the country, that would not be the way to do it.

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