U.S. Attorney General Bill Barr has made John Durham, the U.S. attorney who has been leading the dubious investigation into the Russia probe, a special counsel — creating a potentially messy situation for the incoming Biden administration.
“[T]his appointment is almost certain to test the political will, judgment, and authority of a new Attorney General whose first priority should be to restore the damaged independence of the Justice Department,” Randall Samborn, who served as a spokesperson for the special counsel investigation into the Valerie Plame leak, said in an email to TPM.
Barr ordered the appointment on Oct. 19, two weeks before the election, but kept it secret until Tuesday, “given the proximity of the presidential election,”according to a letter he sent the House and Senate judiciary committees Tuesday.
The Associated Press was first to report the appointment, breaking the news after publishing an interview with Barr in which he undercut Trump’s claims of mass voter fraud in the 2020 election.
Why Barr made the appointment and what it will actually achieve flummoxed former Justice Department prosecutors, many of whom have been critical of Barr’s larger politicization of the department.
“The best possible explanation is that Barr is doing this stuff to mollify Trump,” said Peter Zeidenberg, a defense attorney who previously worked at the Justice Department for 17 years. “If that’s not the case, it’s just that Barr has really gone off the deep end”
Durham was first tasked to review the genesis of the Russia probe in the spring of 2019, as President Trump continued to stew about special counsel Robert Mueller and after Barr himself expressed skepticism of how the investigation was handled.
By October, word had leaked that the review had morphed into a criminal investigation. But so far, it has only produced one public prosecution: a guilty plea from a mid-level FBI lawyer who admitted to altering an email related to the Department’s effort to secure a surveillance warrant on former Trump campaign adviser Carter Page.
Barr has already acknowledged that President Obama and President-elect Joe Biden — both targets of Trump’s most unhinged claims about the Russia investigation – are unlikely to be prosecuted. It’s not clear who else remains in the Durham probe’s crosshairs, but a DOJ source told the AP it’s focusing on FBI actions the predated Mueller’s appointment.
“This is just a stunt to use the [special counsel regulations] to continue the investigation,” Nick Akerman, a former prosecutor who worked on the Watergate investigation, told TPM. “He’s trying to make it difficult for the new Attorney General to put the kibosh to it if there is nothing to do it.”
In the days and weeks leading up the election, Trump made known his anger that Durham had not brought any more indictments or published a report. Around this time, Nora Dannehy — a prosecutor who had worked closely with Durham in the past and who was assisting in the Russia probe review – resigned from the investigation, in a move that was reportedly motivated by her discomfort with the pressure Barr was placing on Durham.
“It’s not really clear whether it was Durham or Barr who was driving this investigation. Up until this point, Durham’s reputation was generally good,” Harry Sandick, a former federal prosecutor told TPM. But Dannehy’s exit “raised an eyebrow,” he added.
What makes the move anoint him special counsel more perplexing, Sandick said, is that assigned him role undercuts the whole point of a special counsel in the first place
“The whole point is that it’s a person who’s not supposed to be entirely under the thumb of the Attorney General,” Sandick said. “But someone who serves as a U.S. attorney is in the hierarchy under the thumb of the Attorney General.
It’s also fueled the arguments of those who say the special counsel regulations have failed on what they meant to achieve: investigations that are truly independent.
“I am concerned that the more experience we undertake with Special Counsels pursuant to the Justice Department regulations, the more we recognize that they impose political constraints on the process and the resulting investigations are not truly independent,” Samborn said.