Published by The Lawfare Institute
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How should the next attorney general, whoever he or she turns out to be, handle the John Durham probe?
The more I study what Attorney General William Barr did in his secret October order naming the Connecticut U.S. attorney as a special counsel, the more devilishly clever it seems—and the bigger the pickle it creates for Barr’s successor. This, presumably, is Barr’s intention. Untangling this knot is going to take no small amount of diplomacy, lawyering and finesse. And a false move in any of several directions could create a real mess.
Let’s unpack the situation and then consider how a new attorney general might responsibly address it.
The Durham investigation—which focuses on the origins and conduct of the Russia investigation—began not as a criminal investigation but as an administrative review, ordered by Barr, of the Russia probe. As such, it has reportedly looked at everything from the integrity of the Intelligence Community Assessment (ICA) of Russian interference in the 2016 election to the handling of the Carter Page Foreign Intelligence Surveillance Act (FISA) application. At some point, however, the Durham probe became, at least in part, a criminal one, and it has prosecuted one person—former FBI lawyer Kevin Clinesmith—for falsifying an email in connection with the Carter Page matter.
Beyond that one case, however, it has never been clear what exactly the Durham investigation is looking at. Many of the key figures in the Russia probe have never even been contacted. And the exhaustive inspector general’s report on the Crossfire Hurricane probe does not give rise, beyond Clinesmith’s case, to implications of criminal conduct. Durham has, in other words, spent 18 months rooting around in an unspecified combination of criminal and noncriminal matters: second-guessing intelligence and law enforcement conduct, following up criminally on referrals from the inspector general, running down Barr’s suspicions about how the Russia investigation really began, and exciting expectations on the right that the Russia scandal is about to finally be unveiled as a hoax.
It is against this backdrop that Barr back in October secretly transformed Durham from a mere U.S. attorney into, in addition, a special counsel.
I actually don’t fault Barr for the secrecy of this move in the weeks before the election—though it does give the episode a shady air. It seems to me right, if Barr’s goal here was not to influence the election, to keep the matter confidential until after the election—though the even better course might have been to wait until after the election to act at all. In any event, nothing turns on the question of whether Barr announced it in October or this week. So let’s give Barr a pass on this point and focus only on the merits of the decision.
The first real oddity of the move is that it was quite explicitly designed to burden a potential Joe Biden administration with a special counsel. Barr specifically described it, in fact, as intended “to provide [Durham] and his team with the assurance that they could complete their work, without regard to the outcome of the election.” Note that since the incumbent president is enthusiastic about the Durham investigation, the only conceivable threat that Barr could be protecting against here is the threat of Biden winning and Barr’s being replaced by someone inclined to curtail Durham’s probe. So the words “without regard to the outcome of the election” may as well read “even if Biden becomes president and I am no longer attorney general.”
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.
But Barr’s order goes further in two key important respects, both flagged in this excellent piece by Josh Blackman. First, it gives Durham a sweeping mandate. Under Barr’s appointment order, Durham is authorized to examine:
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.
Consider for a moment the breadth of this mandate. Durham gets to look not merely at whether anyone broke any law in connection with the origin or conduct of the Russia investigation during the campaign but whether anyone in the Mueller investigation broke any law at any time—a matter about which there has been no public suggestion of any kind. As Blackman rightly notes, “Durham can investigate anyone who potentially violated any law that is in any way connected with the investigation of the 2016 election. And that investigation can target Mueller and his staff.”
Barr’s order does something else too: It creates a mandate for a public report from Durham. The regulations themselves do not do this. They require only a confidential report from the special counsel to the attorney general explaining the special counsel’s prosecution and nonprosecution decisions. But Barr’s order goes a step further, requiring that: “In addition to the confidential report required by 28 C.F.R. § 600.8(c), the Special Counsel, to the maximum extent possible and consistent with the law and the policies and practices of the Department of Justice, shall submit to the Attorney General a final report, and such interim reports as he deems appropriate, in a form that will permit public dissemination” (emphasis added).
In other words, Barr—having already had Durham pursue a noncriminal review of Justice Department and FBI conduct and having given him a sweeping jurisdictional mandate to investigate anything he wants—now gives him an extraregulatory requirement to write about it all in public.
There’s a third clever thing about Barr’s appointment order for Durham: On the surface, at least, it closely resembles the appointment order for Mueller himself. As Blackman summarizes:
Barr and Rosenstein, respectively, appointed Durham and Mueller pursuant to the same three statutes: 28 U.S.C § 509, § 510 and § 515. The first statute vests broad supervisory powers in the attorney general, while the second statute authorizes the attorney general to delegate his powers to subordinates. The third statute is the most important for present purposes. Section 515 empowers the attorney general to authorize a “special assistant”—though not a “special counsel”—to conduct “any kind of legal proceeding, civil or criminal, including grand jury proceedings.” Both the Durham and Mueller appointments contain the same, critical sentence: “If the Special Counsel believes it is necessary and appropriate, the Special Counsel is authorized to prosecute federal crimes arising from the investigation of these matters.” This provision will allow Durham to bring federal prosecutions during the Biden presidency.
Neither Durham nor Mueller was appointed pursuant to the special counsel regulations promulgated by the Clinton administration. Rather, both appointment orders indicate that some of these regulations, including “28 C.F.R. §§ 600.4 to 600.10 are applicable to the Special Counsel.” It is not entirely clear what “are applicable” means, as this issue was never tested in courts. But at a minimum, it is clear that Durham was not appointed pursuant to these regulations—in particular, because 28 C.F.R § 600.3 provides that “[t]he Special Counsel shall be selected from outside the United States Government.” Durham would not meet these requirements because he is the U.S. attorney for the District of Connecticut. Barr, therefore, could not have relied on these regulations.
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.
All of this might be justifiable behavior by Barr—though still quite aggressive—if there were some grave impropriety under investigation by Durham and reason to believe that Biden would come in and quash the investigation. But remember, nobody outside of the department even knows what supposed violations of law Durham is investigating at all, aside from the issue of Clinesmith’s falsified email. The matters before Durham have already been the subject of an intense and exhaustive inspector general investigation, and the one matter he has prosecuted is entirely derivative of that investigation. There are no public facts that suggest criminal wrongdoing in the origin of the investigation or in its general conduct, much less in the conduct of the Mueller investigation. And to whatever extent that there may be residual criminal questions about the specific handling of the Carter Page FISA application, surely that does not require a special counsel with a broad mandate and a public reporting requirement that covers the Mueller investigation.
It is hard, given all of this, to disagree with former Acting Solicitor General Neal Katyal when he accuses Barr of attempting to “‘burrow’ his handpicked prosecutor into a new administration.” Writes Katyal in the New York Times:
There may be reasons the inquiry by Mr. Durham — an investigation that began in 2019 into the Trump-Russia inquiry — should continue, but there is absolutely no reason to permit an outgoing attorney general to try to install his preferred personnel at the investigation’s helm in the new administration. And it is entirely appropriate for President-elect Joe Biden to appoint all the prosecutors in his new administration, just as his predecessors have done.
So let’s fast-forward two months and examine the problem from the point of a view of a new attorney general. Assume that this person has been confirmed by the Senate, Republican members of which have almost certainly asked questions like this one:
Your predecessor, Attorney General Barr, committed during his Senate confirmation hearing to letting Bob Mueller finish his work, saying that Mueller could only be terminated for good cause and that it was unimaginable to him that Mueller would behave in such a fashion as to justify his dismissal. Are you prepared today to make a similar commitment regarding Special Counsel Durham: that you will only terminate him for good cause?
Let’s imagine that the incoming attorney general has managed not to commit him- or herself in response to such questions but has, instead, gotten by with something wiggly like, say, this:
Senator, I have immense respect for the special counsel regulations and intend to abide by them. At the same time, I have no idea what Mr. Durham is investigating or what his plans are. It would be inappropriate for me to comment on a pending matter on which I have not even been briefed and about which I know only what the press has reported. I will always support the important investigative and prosecutorial work of the Justice Department.
In other words, assume that the new attorney general has some latitude to maneuver, but only some. Curtail the Durham investigation and Republican senators will cry foul and claim the attorney general has betrayed a commitment made at his or her confirmation in order to shut down an investigation of FBI misconduct against Republicans. Perhaps more important, such a move would also set a precedent that firing special prosecutors is okay. This is a precedent that is sure to be cited, exploited and abused in the future.
Conversely, just let Durham do his thing, and the new attorney general runs a different risk: of letting a wide-ranging investigation of the Russia investigation run riot over the new administration for as long as Durham wants and with a mandate to issue a public report—including, potentially, on the noncriminal matters that were the subject of the original Durham review—at a time of the special counsel’s choosing.
So what is a new attorney general to do?
Unfortunately, there is no simple answer to this question, which I’m afraid depends on facts that aren’t yet public. But the first step is for the attorney general to meet with Durham and to assess the answers to two key questions:
- What is the scope and focus of this investigation? What specific criminal matters is Durham investigating?
- To what extent is Durham still conducting an administrative review of the department’s behavior during the Russia investigation? In other words, to what extent is Durham investigating noncriminal matters?
If Durham is not actively investigating live criminal matters, the investigation should be terminated. Special counsels don’t exist to write reports. They don’t exist to perform administrative reviews. They exist to investigate and prosecute cases. If there are no cases to prosecute here, then the appointment of Durham is improper and it should be revoked.
This is clear under the regulations, which state, “The jurisdiction of a Special Counsel shall be established by the Attorney General,” and also make clear that in doing so, the special counsel has “the full power and independent authority to exercise all investigative and prosecutorial functions of any United States Attorney.” Likewise, Barr’s jurisdictional mandate for Durham is super-broad in subject matter but limited to whether people “violated the law.” So to the extent Durham is still examining, for example, whether the intelligence community got Russian interference right in the ICA, that is simply not within the proper purview of a U.S. attorney. And there is no good reason for a new attorney general to allow a roving special counsel appointed by the prior administration to play that role under regulations designed to facilitate criminal investigations.
Taking this course would be politically contentious for the reasons described above. It would also be the right thing to do if Durham does not have criminal matters before him. And I think it could be done legally. While the mechanism Barr used to appoint Durham is formally the same as the one used to appoint Mueller, its use in context is quite different—abusively so.
For one thing, Rosenstein was Trump’s own deputy attorney general, and he made the appointment to preserve public legitimacy in an investigation. The point of the special counsel regulations are not to allow an outgoing attorney general to saddle an incoming attorney general with an investigation and an investigator he or she does not believe appropriate.
Moreover, in Mueller’s case, the mechanism of his appointment carried no consequence. Mueller was a wholly qualified special counsel under the regulations, so nothing turned on the specific mechanism Rosenstein used to appoint him. By contrast, Durham is—as Blackman notes—not qualified to be a special counsel under the regulations, which specifically require that the attorney general name someone from outside the Justice Department as special counsel. Barr’s use of his statutory power as the authority for Durham’s appointment, instead of the regulations themselves, thus allowed Barr to defy the normal regulatory requirements.
But if you live by such orders, you can also die by such orders.
And if the next attorney general comes in and finds that the Durham probe has no substantial criminal components, he or she can rescind Barr’s order. Blackman concedes that this is likely a legally viable approach and notes only prudential concerns about pursuing it: “[T]he attorney general might hesitate to take this step because of external and internal pressures. To the general public, after all, the rescission of Barr’s order would be indistinguishable from firing the special counsel. Most people will not grasp the subtle nuance of this move.”
I agree entirely as to these concerns. This road would be dicey. And a new attorney general should contemplate it only if there really are no serious criminal questions on the table, and he or she would have to be very clear and transparent with the public about the reasons for such a decision.
To the extent there are live criminal questions that have proper predicates for examination, the investigation must be allowed to come to its natural conclusion. This would be true even if Barr had not made Durham a special counsel—in which case someone else in the department would presumably take over the case upon Durham’s departure. A new attorney general simply should not be in the business of shutting down proper and ongoing investigations.
But that does not necessarily mean either that Durham is the appropriate person to conduct the investigation or that the scope of Barr’s order is appropriate.
If Durham has a few discrete live cases, he does not need a sweeping mandate to investigate any possible violation of law by anyone at any time involving the Russia investigation. And he certainly doesn’t need an extraregulatory mandate to write a report designed for public consumption. His jurisdiction, rather, should reflect something roughly approximating what his reasonable criminal investigative questions are. In Mueller’s case, this meant a mandate to examine Russian interference in the 2016 election, possible coordination with that effort on the American side, and efforts to obstruct his probe. In this case, I don’t know what the mandate should include, not knowing what criminal questions Durham has before him, but I’m fairly confident that the live criminal questions before Durham do not require a mandate as sweepingly broad as the one Barr mischievously gave him.
Finally, there’s the question of Durham himself. I tend to agree with Katyal that:
a special counsel must be “a lawyer with a reputation for integrity and impartial decision making.” Mr. Durham entered this inquiry with that reputation, earned for work under both Republican and Democratic administrations. But Mr. Durham’s top aide in the investigation, the well respected Nora Dannehy (who certainly fits that bill), “quietly resigned — at least partly out of concern that the investigative team is being pressed for political reasons to produce a report before its work is done,” according to colleagues. Whatever the circumstances of Ms. Dannehy’s departure, the special counsel regulations are all about public perception, and here they all stink.
Durham’s conduct has been far from exemplary. He commented on his findings midstream to swipe at the inspector general’s report. He has allowed his probe to be used by Barr to make a series of comments presaging Durham’s findings and has seemed all too willing to investigate thin and nonsensical conspiracy theories about the origins of the Russia investigation. And he is, after all, a current political appointee. The goal of the special counsel regulations is to make the process of politically loaded investigations less political. It does not serve this goal to have a contentious political appointee from the prior administration foisted upon a new administration.
And all that said, the new attorney general should hear Durham out regarding the current investigation and any open matters. Even if the new attorney general concludes that Durham is not the appropriate person to continue a long-term investigation, if he’s nearing the end of his probe, has a few loose ends to tie up and means to write—as the regulations require—“a confidential report [for the attorney general] explaining the prosecution or declination decisions reached by the Special Counsel,” the better part of valor is almost certainly to let him do this. The costs of replacing Durham—in controversy and scandal and in tension with Congress—are high, after all. A new attorney general does not need to take that on or create a precedent for replacing a special counsel if Durham is, in fact, behaving responsibly and if the situation will thus peter out on its own.
Conversely, it is possible that after meeting with Durham and hearing him out, a new attorney general will determine that there is still a job to do here but that Durham is the wrong man to do that job. If that’s the case, the reasons for this decision will require careful public explanation—and it will almost certainly embroil the new administration in scandal and congressional investigation, particularly if Republicans control the Senate.
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. The goal here should be to find the least bad way forward.