AG William Barr Violated DOJ Regulations To Appoint John Durham As Special Counsel

Attorney General William Barr attempted to secretly lock in the ongoing Trump fever dream investigation of the “deep state” FBI investigators who opened the probe into his campaign’s ties to Russia during the 2016 election, hoping to set a trap for the incoming Biden administration.

All he did was serve to further demonstrate that he is the most corrupt Attorney General in U.S. history, and one of the more inept.

The New York Times reports, Barr Makes Durham a Special Counsel in a Bid to Entrench Scrutiny of the Russia Inquiry:

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.

He chuckled to himself, “Bwahahaha!”

This is the same investigation that failed to produce the much anticipated (by Fox Nation) and long promised “October Surprise” that would save Donald Trump’s presidency and lead to his reelection. If John Durham had anything of value, he would have certainly been ordered by Barr to disclose it before the election.

Prior to the election it was reported that Durham Investigation Insiders Say ‘No Evidence’ to Support Obamagate Has Been Found in 18 Months:

According to a New York Magazine story relying on anonymous sources “familiar with the probe,” U.S. Attorney for the District of Connecticut John Durham has come up empty-handed and is growing increasingly frustrated with Attorney General Bill Barr over developments in the investigation–or, rather, the lack thereof.

Barr, for his part, has reportedly pressured Durham and his team for months over the investigation into the investigation–insisting that the prosecutor release the results before Election Day in an effort to use the full apparatus of the U.S. Department of Justice as a salve for President Donald Trump‘s electoral woes.

In early September, Durham’s longtime aide Nora Dannehy resigned out of concern that the team was being pressured—by Barr for political reasons—to come up with results well before November.

[A]ccording to her colleagues, the government attorney was forced to choose between her years of working with Durham and her belief that the DOJ should not be used to exercise, facilitate or exert influence on U.S. elections.

* * *

While the probe remains ongoing, there has reportedly been no evidence to support the White House’s long-promised pet theory that the 45th president was targeted by untoward Obama era officials—and the Obama White House itself— as part of unlawful deep state coup. That preliminary finding also reportedly extends to both Obama and Biden themselves.

One of those anonymous sources cited in the New York report says there “was no evidence…not even remotely…indicating Obama or Biden did anything wrong.”

In other words, there is no “there” there, just like the eight congressional investigations into Benghazi! produced no “there” there, but nevertheless was damaging to Hillary Clinton. This is what Republicans do. The whole point of these investigations is to allow the propagandists at state-sponsored propaganda television Fox News to smear people with unsubstantiated allegations and conspiracy theories to poison the well of public opinion against them. This is what Barr’s move in appointing Durham a special counsel is intended to do to Joe Biden.

[Donald Trump’s golf caddy and ball washer] “Senator Lindsey Graham, 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.”

Republicans are going to do what they always do. So what? Joe Biden’s Attorney General is well within his or her right to end this politically motivated witch hunt. Barr didn’t have the authority to appoint Durham a special counsel. Barr’s Appointment Of John Durham As Special Counsel Appears To Be Illegal:

House Judiciary Committee chairman Rep. Jerry Nadler (D-NY) said that Barr’s appointment of Durham as a special counsel violated DOJ rules.

Chairman Nadler said in a statement provided to PoliticusUSA:

This order only further erodes the credibility of the Justice Department under Attorney General Barr’s tenure. On its face, this appointment appears to violate the Department’s own regulations—which stipulate, among other requirements, that ‘the Special Counsel shall be selected from outside the United States Government.’ The sitting U.S. Attorney for the District of Connecticut is simply not eligible for the job. In addition, the Attorney General has provided no real explanation for his decision to appoint a Special Counsel when he did, or for his decision to delay notification to Congress until today.

And we should not lose sight of the larger picture: in the waning days of the Trump Administration, the Attorney General has once again used the powers of his office to settle old scores for the President. This order is one more desperate attempt to feed President Trump’s fixation on events that have been investigated over and over again, including by the Department’s independent Inspector General. It is a distraction to divert attention from the President’s failure to contain the COVID-19 pandemic and his resounding defeat in the presidential election.

I have asked the Attorney General to call me and provide an explanation for this order without delay.

If the appointment is in violation of DOJ guidelines, there will be nothing stopping the next attorney general from rescinding the appointment and shutting Durham down. Barr and Trump are betting that shutting Durham down would make it look like Biden is hiding something, and damage his presidency.

Cody Fenwick reports, Bill Barr may have made a key mistake in appointing secret special counsel to investigate Joe Biden (excerpt):

Speaking to the Associated Press, Barr said that he has actually made Durham a special counsel in October but kept the news under wraps until now. He made clear that his intention was to protect the investigation from a potential Joe Biden administration.

“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,” he said.

Robert Mueller became the special counsel after Trump fired then-FBI Director James Comey in 2017, who has been overseeing the investigation. Many feared Trump would corruptly block the investigation from moving forward, so Deputy Attorney General Rod Rosenstein picked Mueller to run it. There is no such justification now for setting up a new special counsel to continue under President Joe Biden, and there’s a particularly rich irony in the tactic: Barr’s obsession with the Russia investigation, and his decision to task Durham with reviewing it, stemmed from his misguided belief that it was a duplicitous effort by the Obama administration to undermine Trump. But Barr’s action looks much more like the accusations he has baselessly lobbed at his predecessors than anything carried out under Obama.

Special counsels have added protection that normal U.S. attorneys lack. Under the DOJ regulations, a special counsel can only be fired for cause, while U.S. attorneys serve at the pleasure of the president. The regulations also require the special counsel to report to the attorney general, who will soon be a Biden appointee. But Congress is to be notified if the attorney general ever overrules any step the special counsel would like to take in the probe.

As many pointed out, there seems to be a big problem with Barr’s decision to set Durham up as a special counsel: The regulations don’t seem to allow it:

An individual named as Special Counsel shall be a lawyer with a reputation for integrity and impartial decisionmaking, and with appropriate experience to ensure both that the investigation will be conducted ably, expeditiously and thoroughly, and that investigative and prosecutorial decisions will be supported by an informed understanding of the criminal law and Department of Justice policies. The Special Counsel shall be selected from outside the United States Government. [emphasis added]

Durham was already working within the government when he was appointed, apparently making him ineligible for the position Barr wants him to hold. It’s not clear how or if this mistake could be used against Durham, though it’s possible any target of his investigation could claim he’s unauthorized to act in the role. And this mistake could potentially be exploited by a future attorney general if they sought to remove Durham from the position.

The order naming Durham as a special counsel assigns him to

investigate whether any 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.

What’s not clear about this is whether there’s actually any factual predicate to justify this investigation. No serious justification has ever been put forward, though the president and his allies have hyped various bogus conspiracy fictions surrounding the probe that have been repeatedly debunked; Barr has been clearly sympathetic to these false narratives. One FBI lawyer, Kevin Clinesmith, was caught having created a minor alteration to a document used in an application to surveil Carter Page, a one-time associate of the Trump campaign. Clinesmith has pleaded guilty for this crime, though it likely would have only resulted in termination were Barr not on a mission of vengeance.

The Clinesmith revelation is noteworthy, though, because it was actually discovered in a review of the Russia investigation conducted by Justice Department Inspector General Michael Horowitz, who referred the case to prosecutors. But precisely because Horowitz had so closely reviewed the origins of the Russia investigation — finding that it was launched with sufficient predication, and finding no other crimes apart from Clinesmith’s case — the natural question was: Why is Durham investigating at all? Horowitz has reviewed the conduct surrounding the probe, read his report here, so isn’t any further investigation unnecessary and duplicative? Doesn’t Barr’s move, after all that, reek of a witch hunt?

One justification Barr gave for Durham’s appointment was that he had a wider scope than Horowitz, who was limited to reviewing DOJ conduct. Barr has indicated that Durham’s probe encompassed the activity of the intelligence agencies, such as the CIA, suggesting to many that he was pursuing wild conspiracy theories floated by Trump supporters who believed there was an international plot against the incoming president in 2016. Barr was even reported to have flown to foreign countries such as Italy to probe their own officials about potential involvement in the plot.

But according to Barr’s interview with the AP, these avenues have dried up. The attorney general “said Durham’s investigation has been narrowing to focus more on the conduct of FBI agents who worked on the Russia investigation, known as Crossfire Hurricane,” according to the report.

It added: “The focus on the FBI, rather than the CIA and the intelligence community, suggests that Durham may have moved past some of the more incendiary claims that Trump supporters had hoped would yield allegations of misconduct, or even crimes — namely, the question of how intelligence agencies reached their conclusion that Russia had interfered in the 2016 election.”

This raises the question, once again: If Durham is just focused on the FBI, why was the Horowitz probe insufficient?

John Durham reportedly was a well respected U.S. Attorney. It is not at all clear whether he has played along with Barr’s political machinations. Some indications are that he has not. His report, like Inspector General Michael Horowitz, may include some procedural deficiencies at the FBI, but otherwise may exonerate the main players in the Trump-Russia investigation.

And that may be the real reason why his report has not yet been publicly released. Joe Biden’s Attorney General should tell John Durham it’s time to wrap it up and move on to more important work than chasing after QAnon conspiracy theories.