Benjamin Wittes, an anti-Trump attorney and personal friend to former FBI Director James Comey, explained Friday that Attorney General William Barr’s decision to elevate U.S. Attorney John Durham to “special counsel” was “devilishly clever.”
Barr originally tasked Durham last year with investigating the origins of the Russia investigation.
The Associated Press reported on Tuesday:
Barr told The Associated Press on Tuesday that he had appointed U.S. Attorney John Durham as a special counsel in October 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.
What did Wittes say?
According to Wittes, the move to make Durham a “special counsel” will make it virtually impossible for Barr’s successor and the Biden administration to stop Durham’s investigation.
“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,” Wittes wrote in an essay at Lawfare.
There are, in fact, three genius reasons behind Barr’s move.
According to Wittes, Durham has a “sweeping mandate” and broad investigative authority to uncover crimes. Second, Barr’s move “creates a mandate for a public report from Durham.” And third, Barr’s appointment order of Durham as special counsel “closely resembles the appointment order for Mueller himself.”
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. 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.
“Barr has played a dirty trick on his successor—one that will put the next attorney general in a genuine bind. There likely won’t be a good way to handle that bind,” Wittes concluded.
Andrew McCarthy, a conservative and former assistant U.S. attorney, agreed that, at the very least, Barr’s move “shored up” Durham’s investigation.
So far, Durham’s investigation has resulted in only one criminal case, prompting former FBI lawyer Kevin Clinesmith to plead guilty to falsifying documents used to obtain a Foreign Intelligence Surveillance Act warrant against Carter Page.