Barr Makes Durham a Special Counsel in a Bid to Entrench Scrutiny of the Russia Inquiry

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Barr Makes Durham a Special Counsel in a Bid to Entrench Scrutiny of the Russia Inquiry

The move would leave the investigation into the Trump-Russia inquiry open when the Biden administration takes over.

Credit…Bob Child/Associated Press

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WASHINGTON — Attorney General William P. Barr revealed on Tuesday that he had bestowed special counsel status on John H. Durham, the prosecutor he assigned to investigate the officials who conducted the Trump-Russia inquiry — setting the stage to leave him in place after the Biden administration takes over.

In a letter to Congress, Mr. Barr disclosed that he had secretly appointed Mr. Durham as a special counsel on Oct. 19, before the election. The action gives Mr. Durham the same independence and protections against being fired that had been enjoyed by Robert S. Mueller III, the former special counsel who eventually oversaw the Russia investigation.

“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,” Mr. Barr wrote.

The White House did not know about Mr. Durham’s appointment until Mr. Barr made his public comments on Tuesday, an official said.

Mr. Durham never fulfilled President Trump’s and his supporters’ expectations that he would bring to light some significant wrongdoing against the president before the election. But the step appeared likely to create a headache for whoever Mr. Biden appoints as attorney general, who would take over supervision of Mr. Durham’s continuing work.

Mr. Barr also empowered Mr. Durham to hunt for crimes not only during the early stages of the Trump-Russia investigation that began in July 2016, which has been his focus, but also during the period after Mr. Mueller took over that inquiry in May 2017 — making him, in effect, a special counsel for the special counsel.

Representative Adam B. Schiff, Democrat of California and the chairman of the House Intelligence Committee, defended the legitimacy of the Russia investigation and condemned Mr. Barr’s move as an abuse of the special counsel power “to continue a politically motivated investigation long after Barr leaves office.”

But Senator Lindsey Graham, Republican of South Carolina and the chairman of the Senate Judiciary Committee, praised the move and issued a not-so-veiled warning that Republicans would paint any Biden administration attempt to close Mr. Durham’s investigation as hypocrisy after Democrats spent years defending Mr. Mueller from Mr. Trump’s open desire — and unsuccessful attempt — to fire him.

“I hope my Democrat colleagues will show Special Counsel Durham the same respect they showed Special Counsel Mueller,” Mr. Graham added. “This important investigation must be allowed to proceed free from political interference.”

A special counsel has essentially the same powers as a U.S. attorney and remains subject to an attorney general’s control, unlike past so-called independent counsels who, under a defunct law, investigated scandals like the Reagan administration’s Iran-contra affair and President Bill Clinton’s Whitewater land deal and his dalliance with Monica Lewinsky.

Still, Justice Department regulations give special counsels day-to-day independence as they pursue their assigned jobs, and they are protected from arbitrary firing by a provision that says they may be removed only “for misconduct, dereliction of duty, incapacity, conflict of interest or for other good cause, including violation of departmental policies.”

An attorney general may overrule a special counsel on major steps like whether to charge someone with a crime, but the department must eventually disclose that dispute to Congress.

Mr. Barr’s memo was broadly written and vague. It did not identify any suspected crime that could serve as a predicate for a continuing criminal investigation, or any particular person whom Mr. Durham was to focus on. Nor did it claim a foreign threat that would constitute any separate counterintelligence basis for an inquiry, as with the Trump-Russia investigation.

Mr. Barr also directed Mr. Durham to write a report detailing his findings that would be intended for public consumption, echoing the document Mr. Mueller compiled about Russia’s election interference and the Trump campaign, as well as Mr. Trump’s efforts to obstruct that inquiry. The special counsel regulations do not envision such a report.

Mr. Barr’s appointment of Mr. Durham paralleled the appointment of Mr. Mueller in another way: Both were pre-existing investigations with an aspect that fell outside the scope of the special counsel regulations. So Mr. Barr and Rod J. Rosenstein, the deputy attorney general who appointed Mr. Mueller, made the appointments under a different authority and then directed that certain parts of the special counsel regulations would apply to that position.

Specifically, the regulations are written for appointing someone to run a criminal investigation, but Mr. Mueller was inheriting a counterintelligence inquiry. The regulations also envision appointing someone from outside the Justice Department as special counsel, but Mr. Durham is the sitting U.S. attorney for Connecticut.

Because Mr. Durham was not appointed pursuant to the special counsel regulation, it is possible the next attorney general could rescind Mr. Barr’s directive that special counsel rules would apply to him, then end his inquiry without any finding of misconduct. That was also a theoretical possibility for Mr. Mueller, but it did not matter for most of the Russia investigation because Mr. Rosenstein himself had voluntarily adopted the rules and remained in charge.

Still, said Samuel Buell, a Duke University law professor and former federal prosecutor, “I suppose the calculation is that there is a political cost” if a Biden administration attorney general were to try to shut down Mr. Durham’s work as a special counsel.

Mr. Barr had assigned Mr. Durham last year to conduct a “review” of actions taken by the F.B.I. and other national security officials in the early stages of the Russia investigation. The Justice Department later said his work had evolved into a criminal investigation, and Mr. Barr’s letter to Congress said that status was “ongoing.”

But while Mr. Durham has looked into a number of issues in search of evidence to bolster Mr. Trump’s oft-stated declaration that a “deep state” plotted to sabotage him, it is not clear what, if anything, he has found. To date, the only criminal prosecution he has brought was by striking a plea deal with Kevin Clinesmith, a former lower-level F.B.I. lawyer. He had doctored an email from the C.I.A. when the bureau was preparing to apply for renewal of a wiretap order targeting a former Trump campaign aide with links to Russia, Carter Page.

The alteration of the C.I.A. email by Mr. Clinesmith, who has not yet been sentenced, prevented an F.B.I. colleague from realizing that the application — and prior iterations — omitted a relevant fact: Mr. Page had discussed with the C.I.A. some of his interactions with Russians, potentially making his pattern of such contacts look less suspicious. But a separate investigation by the Justice Department’s inspector general, Michael E. Horowitz, uncovered that issue, along with other ways the F.B.I. botched the applications — not Mr. Durham.

Expectations had built that Mr. Durham would announce something important before the election, in part because Mr. Barr had stoked them by saying he did not think a department policy against taking actions that could affect an upcoming election applied to Mr. Durham’s inquiry.

And in September, Mr. Durham’s top aide, Nora R. Dannehy, abruptly quit. The Hartford Courant reported that she had expressed concerns to colleagues about pressure from Mr. Barr to deliver results before the presidential election in November. But the election passed without any word from Mr. Durham.

Mr. Buell argued that if Mr. Durham had found something concrete but had been holding it back to avoid influencing the election, now would be an appropriate time to reveal it. He called Mr. Barr’s move — long after Mr. Durham began his work, and on the cusp of a change of administrations — an “odd” use of the special counsel regulations.

“You might appoint someone informally, as they did here, to look into something, but you wouldn’t go to a special-counsel level unless you had some higher level of confidence that there was likely to be something there,” Mr. Buell said. “It’s not clear — does Barr now think that? Or is he just trying to keep Durham in position after he is no longer attorney general?”

Katie Benner contributed reporting.

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