Discussion:
Barr Makes Durham a Special Counsel in a Bid to Entrench Scrutiny of the Russia Inquiry
(too old to reply)
Red States = Shithole States
2020-12-02 17:21:13 UTC
Permalink
nytimes.com
Barr Makes Durham a Special Counsel in a Bid to Entrench Scrutiny of
the Russia Inquiry
Charlie Savage
The move would leave the investigation into the Trump-Russia inquiry
open when the Biden administration takes over.
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."
Nicholas Kristof: A behind-the-scenes look at Nicholas Kristof's
gritty journalism, as he travels around the world.
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.
Trump's going to find a lot in common with his friend Epstein in the near
future. Those prison cells are unforgiving.
Red States = Shithole States
2021-01-07 03:35:31 UTC
Permalink
nytimes.com
Barr Makes Durham a Special Counsel in a Bid to Entrench Scrutiny of
the Russia Inquiry
Charlie Savage
The move would leave the investigation into the Trump-Russia inquiry
open when the Biden administration takes over.
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."
Nicholas Kristof: A behind-the-scenes look at Nicholas Kristof's
gritty journalism, as he travels around the world.
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.
Trump's going to find a lot in common with his friend Epstein in the near
future. Those prison cells are unforgiving.
Red States = Shithole States
2021-01-20 17:29:45 UTC
Permalink
nytimes.com
Barr Makes Durham a Special Counsel in a Bid to Entrench Scrutiny of
the Russia Inquiry
Charlie Savage
The move would leave the investigation into the Trump-Russia inquiry
open when the Biden administration takes over.
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."
Nicholas Kristof: A behind-the-scenes look at Nicholas Kristof's
gritty journalism, as he travels around the world.
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.
Trump's going to find a lot in common with his friend Epstein in the near
future. Those prison cells are unforgiving.
Red States = Shithole States
2021-01-30 19:24:15 UTC
Permalink
nytimes.com
Barr Makes Durham a Special Counsel in a Bid to Entrench Scrutiny of
the Russia Inquiry
Charlie Savage
The move would leave the investigation into the Trump-Russia inquiry
open when the Biden administration takes over.
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."
Nicholas Kristof: A behind-the-scenes look at Nicholas Kristof's
gritty journalism, as he travels around the world.
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.
Trump's going to find a lot in common with his friend Epstein in the near
future. Those prison cells are unforgiving.
Red States = Shithole States
2021-02-20 19:15:38 UTC
Permalink
nytimes.com
Barr Makes Durham a Special Counsel in a Bid to Entrench Scrutiny of
the Russia Inquiry
Charlie Savage
The move would leave the investigation into the Trump-Russia inquiry
open when the Biden administration takes over.
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."
Nicholas Kristof: A behind-the-scenes look at Nicholas Kristof's
gritty journalism, as he travels around the world.
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.
Trump's going to find a lot in common with his friend Epstein in the near
future. Those prison cells are unforgiving.

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