Making John Durham a special counsel will cause problems for Biden
Now Democrats' Trump administration arguments will come back to haunt them.
Attorney General Bill Barr made two important evidentiary decisions yesterday that delivered body blows to both President Donald Trump and President-elect Joe Biden. First, Barr declared that the Justice Department has not found evidence of systemic fraud in the election. Second, he declared that there was sufficient evidence to appoint United States Attorney John Durham as a Special Counsel on the origins of the Russia probe. The move confirmed that, in a chaotic and spinning political galaxy, Bill Barr remains the one fixed and immovable object.
By appointing Durham as a Special Counsel, Barr contradicted news reports before the election that Durham was frustrated and found nothing of significance despite Barr’s pressure. Some of us expressed doubts over those reports since Durham asked for this investigation to be upgraded to a criminal matter, secured the criminal plea of former FBI lawyer Kevin Clinesmith, and asked recently for over a thousand pages of classified intelligence material.
Under the Justice Department regulations, Barr had to find (and Durham apparently agreed) that there is need for additional criminal investigation and “[t]hat investigation or prosecution of that person or matter by a United States Attorney's Office or litigating Division of the Department of Justice would present a conflict of interest for the Department or other extraordinary circumstances.” He must also find the appointment in the public interest.
Notably, the investigation of Clinesmith is effectively completed. So, what is the criminal investigation and what is the conflict?
Presumably, the conflict is not in the current administration since it would have required an earlier appointment. The conflict would seem to be found in the upcoming Biden administration.
Some conflicts developing seem obvious as Biden turns to a host of former Obama officials for positions, including the possible selection of Sally Yates as Attorney General. Yates was directly involved in the Russian investigation and signed off on the controversial surveillance of Trump associate Carter Page. She now says that she would never have signed the application if she knew what she knows today.
Durham is now ized to investigate anyone who may have “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.” The list of the names of people falling within that mandate is a who’s who of Washington from Hillary Clinton to James Comey to . . . yes . . . Joe Biden.
Bizarrely, reports have claimed that Trump was irate at the move as a “smokescreen” to delay the release of the report. That ignores not just the legal but political significance of the action. From a political perspective, the move is so elegantly lethal that it would make Machiavelli green with envy.
Over the last few months, Democrats appeared to be laying the foundation to scuttle the Durham investigation as well as any investigation into the Hunter Biden influence peddling scheme. House Intelligence Committee Chairman Adam Schiff (D-Calif.) denounced the Durham investigation as “tainted” and “political.” On the campaign trail, Biden himself dismissed the “investigation of the investigators.” Over in the Senate, Democrats joined in the mantra with Sen. Amy Klobuchar, D-Minn., and others denouncing the continued investigations.
By converting Durham into a special counsel, Barr makes it harder to fire him. It is not uncommon for presidents to replace all U.S. Attorneys with political allies. Durham however is now a Special Counsel and his replacement or the termination of his investigation would be viewed as an obstructive act. Indeed, when Trump even suggested such a course of action, he was accused of obstruction by a host of Democratic politicians and legal experts.
Biden's choice for AG: Democratic leader demanded that the report be released with no or few redactions. The Trump administration waived most executive privileges and released most of the report except for grand jury information. Even that was not enough for figures like Speaker Nancy Pelosi: “I have said, and I’ll say again, no thank you, Mr. Attorney General, we do not need your interpretation, show us the report and we can draw our own conclusions.” House Judiciary Committee Chair Jerry Nadler demanded the release of the “full and complete Mueller report, without redactions, as well as access to the underlying evidence.” The Durham appointment will now force Democrats to answer why they do not support the same public release of the report so that voters can “draw our own conclusions.”
Complicating Sally Yates' nomination
The move also complicates the nomination of Sally Yates, who is widely cited as a front-runner for the position of Attorney General. Yates would be placed in an even more precarious position than Jeff Sessions who recused himself to avoid even the appearance of a conflict of interest at the state of the Trump administration. Yates has a clear and obvious conflict. She played a role in the earlier Russian investigation. That investigation was based in part on the “Steele dossier,” a report by a former British spy which has been shown to be unreliable and flawed. American intelligence warned that Steele’s main source was a likely Russian agent and the dossier may have been used for Russian disinformation. While the Clinton campaign repeatedly denied funding the dossier during the election, reporters later showed that it lied after finding a money trail through Clinton’s campaign legal counsel. Most recently, it was disclosed that President Obama was briefed on an American intelligence report that Clinton had ordered the creation of a Russian collusion story to take pressure off her own scandal involving her private server. Yates testified recently that she has no recollection of these warnings and does not recall knowing about the funding of the Steele dossier.
Yates would have no choice but to recuse herself in dealing with the Durham investigation. However, if the Biden administration used her designated deputy to scuttle the investigation or the report, the Biden administration will have done what Trump never actually did. All of those columns and speeches contorting the language of the obstruction statute would come back to haunt the Democrats.
Trump and Barr: words of fired Special Agent Peter Strzok, the ultimate "insurance policy" that Durham will be allowed to complete and release the facts of his investigation. Worse yet, the Democrats themselves made the case for him to do so.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and a member of USA TODAY’s Board of Contributors. Follow him on Twitter: @JonathanTurley