I have one less thing to worry about tonight because of an action taken by Attorney General William Barr. The action took place in October but is just now making the news. On May 13, 2019, Barr appointed U.S. Attorney for Connecticut John Durham to investigate the FBI and CIA’s Trump-related intelligence activities and how the Trump-Russia “collusion” into the 2016 presidential election got started. In October, Barr appointed Durham as a special counsel to continue his investigation.
The new appointment apparently gives Durham extra protection in case Joe Biden is inaugurated as the President of the United States on January 20, 2021. As an U.S. Attorney, Durham could be fired immediately upon Biden taking office. Bill Clinton set the precedence when he removed all 93 U.S. Attorneys within two months of becoming president. However, special counsels work under a different set of regulations as explained by Hans von Spakovsky.
But the Justice Department has a special set of regulations governing the appointment of special counsels, starting at 28 CFR § 600.1. That states that a special counsel is appointed as a “confidential employee” of the Justice Department. As a special counsel, Durham can “request the assignment of appropriate Department employees” as well as “additional personnel” as needed “from outside the Department.”
In other words, Durham can get whatever staff he needs from the Justice Department to continue what he has been doing since 2019 as a U.S. attorney—probing who was involved in investigating the Trump campaign over the false claim that campaign officials were colluding with Russia four years ago.
Or as the order obtained by Fox News states, Durham now has the power “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 campaign, individuals associated with those campaigns, and individuals associated with the administration of President Donald J. Trump.”
Durham’s appointment takes him out from under the direct supervision of the attorney general, including a new attorney general who might want to sideline or marginalize his investigation.
The regulations state that the special counsel has “the full power and independent authority to exercise all investigative and prosecutorial functions of any United States Attorney” and “shall determine whether and to what extent to inform or consult with the Attorney General … about the conduct of his or her duties and responsibilities.”
Spakovsky continued by explaining that the under the new designation of special counsel, Durham is not “subject to the day-to-day supervision of any official of the Department.” The only requirement seems to be that the special counsel “provide the attorney general with a ‘confidential report’ at the end of his work, and the report is to explain “the prosecution or declination decisions reached by the Special Counsel.”
The attorney general can also request that the special counsel “provide an explanation for any investigative or prosecutorial” action and may order that action “not be pursued” if the attorney general concludes that it is “inappropriate or unwarranted under established Departmental practices.”
So, if some former Obama administration official complains to a Biden White House or a Biden attorney general that he is being investigated, subpoenaed, or interviewed, Durham can’t be told by the attorney general to stop what he is doing unless it is “inappropriate or unwarranted.”
If the attorney general takes such action to squash something the special counsel wants to do, he is required under the regulation to “notify Congress.”
Spakovsky said that Durham can propose a budget and that the Justice Department must provide “all appropriate resources” – like the $32 million spent by Special Counsel Robert Mueller on the Russian collusion hoax. Spakovsky believes that the most important reason for the appointment is job security. “Durham can only be removed from office by ‘the personal action of the Attorney General’” for “misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause.”
According to Spakovsky, “Durham can’t be removed just because a Biden administration thinks Durham’s investigation is politically embarrassing for Joe Biden’s friends, allies, and supporters at risk of prosecution.” However, Spakovsky admitted that technically “any president can fire a special counsel regardless of any Justice Department regulations.” Nevertheless, Barr just made it more difficult for Biden to fire Durham “especially from a political and public relations point of view.”
This news helps me to sleep better at night because I thought that Durham investigation would be swept under the rug of a Biden Oval Office. Now I know that there is still hope that the perpetrators of the Russian hoax will be brought to justice. This explains why Democrats are hot under the collar at the announcement.