Benjamin Wittes: Barr’s appointment of Durham was ‘devilishly clever’

As you’re probably aware Benjamin Wittes has been one of the louder anti-Trump voices in the country over the past few years. He spent a lot of time (with his toy cannon) promoting the Russia collusion story. In 2018 he advocated “mindlessly and mechanically” voting against GOP nominees in order to save the GOP from itself.

Today, Lawfare published a piece in which Wittes examines AG Barr’s appointment of John Durham as special counsel. Titled “How do you solve a problem like John Durham?” the piece examines the details of Barr’s appointment and what the Biden administration might to do to undo it. In the process of examining the appointment, Wittes concedes that Barr’s move was done in such a way that it will be very difficult for the incoming AG to do anything about it.

The more I study what Attorney General Bill 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.

Before moving on to why, Wittes notes that he actually doesn’t fault Barr for appointing Durham in secret, since the obvious alternative would have been to make the appointment public just before the election. He thinks Barr deserves a pass on this point. Nevertheless, he sees the appointment as a way to prevent the incoming Biden administration from sweeping Durham aside:

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.

Barr’s appointment also gave Durham wide latitude in what he can investigate: Essentially anything connected to the Russian investigation. And he required that at the end of his investigation Durham produce a report:

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 non-prosecution 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 theory, Biden’s AG could choose not to release this report but of course that would only raise questions about why. So by mandating the writing of a report Barr has more or less guaranteed that the outcome will become public. Clever.

Additionally, Barr’s appointment of Durham closely mirrors the appointment of Mueller. Here Wittes relies on a piece by Josh Blackman:

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.

Wittes says the political impact of this detail is that it will be very difficult for a future AG to undo the appointment:

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.

In other words, Barr has created a landmine for Biden who would be in danger of triggering “Saturday Night Massacre” headlines if he tried to have Durham removed. Plus, all of the people on the left who might argue in favor of Durham’s removal will have been on the record against removing Mueller. Wittes asks us to imagine where this leaves an AG under Biden:

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 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 non-criminal matters that were the subject of the original Durham review—at a time of the special counsel’s choosing.

Wittes is assuming for the sake of argument that the media would hold Democrats to the same standard as Republicans, but of course that’s not how things really work in Washington. We saw that when all of the women’s groups who came out against Judge Kavanaugh suddenly explained that “Believe women!” didn’t mean believing all women. But he’s right that if Democrats were held to the same standards this would present a real problem.

Wittes goes on to argue that the next AG can simply rescind AG Barr’s order and thereby do away with Durham’s Special Counsel status. Josh Blackman says this might be possible but warns that many people might not see this as significantly different from simply firing Durham:

The 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. And given the fact that Barr never removed Mueller from his position as special counsel, there will likely be public pressure to allow Durham to complete his task.

There will be public pressure to allow Durham to finish his work but again that doesn’t mean the media will give it any space or consideration. A big part of how this works is the media deciding whose voices count as “reasonable” and whose should be deplatformed for the collective good. I’m sure the left will try to reverse course on Durham (and argue he should be fired) and I’m sure the media will mostly let them get away with it. But it would still be a scandal.

Biden and his future AG are trapped but not by anything AG Barr did. They are trapped in a box Democrats built over two years of investigations of Russian collusion and endless harping about the importance of observing norms. They can suddenly abandon all of that now that it’s no longer convenient but doing so would not only reveal their deep hypocrisy it would set a powerful precedent for the future.

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