By making Durham special counsel, AG Barr spares Biden tough choices

Attorney General William Barr has formally named Connecticut U.S. Attorney John Durham as a “special counsel.” If we see the designation as political, rather than legal, we will understand it better. More importantly, we will grasp that the attorney general protected an investigation into Obama/Biden-era misconduct by making it easier for the incoming Biden administration to live with it.

As a legal matter, the special counsel appointment of Durham is weightless. In his Associated Press interview, Barr indicated that he was making the formal designation to give Durham the same regulatory protection that Robert Mueller enjoyed as the special counsel investigating the Trump-Russia “collusion” farce. That protection is more apparent than real.

As a factual matter, Mueller qualified for the protection provided by formal special counsel status because he was “selected from outside the United States government,” as the regulations require (specifically, Section 600.3). This requirement is common sense: Assuming adequate basis for a criminal investigation, a special counsel is arguably necessary only when a profound conflict of interest would render it impossible for the Department of Justice (DOJ) to conduct such a probe in the normal course. 

This is almost never the case, since if an individual DOJ prosecutor has a conflict (e.g., a former client caught up in an investigation), the DOJ can just assign a non-conflicted prosecutor. But the classic conflict situation warranting a special counsel appointment is when an investigation centers on the president or high administration officials, for then the Justice Department is in the position of investigating its superiors and the administration of which it is a part — that’s when you arguably need a lawyer from outside. 

Durham, however, is not from outside. He is a top federal prosecutor. He does not meet the “outside the government” qualification. To this point, moreover, his investigation has not presented a conflict situation (i.e., this was not a matter of the Trump administration investigating itself).

Yet, these factual departures from the usual special counsel scenario can be put aside easily. Under another regulation (Section 600.10), the Justice Department’s failure to comply with the letter of the special counsel regs is not actionable — no one has a legal right to object. The attorney general has broad discretion to formulate arrangements in the interests of justice that safeguard investigations from political interference. 

It has become common, for example, for attorneys general to name experienced Justice Department prosecutors from outside Washington to conduct politically sensitive investigations — keeping the matter in-house, but adding a layer of insulation. Indeed, that is how Durham ended up with not only the current investigation into the origins of the Trump-Russia probe, but with similarly sensitive probes he was tapped to handle during the Clinton, Bush-43, and Obama administrations. Similarly, the Bush-43 Justice Department appointed then-Chicago U.S. Attorney Patrick Fitzgerald to oversee the Valerie Plame leak investigation, and Barr appointed then-St. Louis U.S. attorney Jeff Jensen to review the Michael Flynn prosecution. 

It is pointless, in any event, to be fastidious about the special counsel regulations, because their vaunted protections of the prosecutor’s independence are illusory.

The regulations purport to allow a special counsel a) to withhold some information from the attorney general and Justice Department chain-of-command; b) to be insulated from day-to-day DOJ supervision; and c) to be removable only for cause (Sections 600.6 and 600.7). In reality, though, the special counsel is a subordinate prosecutor. As a matter of constitutional law, prosecution is an executive function, and there is no getting around the fact that all executive power is reposed in the president. Like all executive branch officials, a special counsel answers to the president, who is not bound by the regulations and can remove the special counsel at will.

Consequently, even if Durham were, strictly speaking, a special counsel rather than an in-house investigator given a measure of independence, he could be removed by Joe Biden after Jan. 20.

Barr’s designation of Durham is thus bereft of legal teeth. Politically, however, the designation makes it more difficult for Biden to fire Durham. Ironically, this is a boon for the president-elect. It also has the benefit of removing a hot potato from the lap of his yet-to-be-named attorney general. 

Biden has made a point of saying that he will not interfere in Justice Department investigations. On that score, the new president would lose all credibility if his first order of business were to be firing Durham. On the other hand, Biden knows he has scant reason to be concerned about Durham’s investigation: Barr has made clear that Biden is not a subject; the probe seems trained on FBI and other investigators, who were acting at some remove from the then-vice president. Plus, Durham would be reporting to Biden’s attorney general. Biden can be confident from Durham’s performance thus far, and from the CIA investigation he handled during the Obama administration, that he will do a competent job and seek indictments only if there is compelling evidence.

If Barr had not designated Durham, there would have been significant pressure on the incoming Biden attorney general — from the left, which wants the investigation to disappear, and from the right, which wants accountability and would suspect a Biden AG of burying the probe. At a minimum, Durham’s investigation involves whether crimes were committed in the FBI’s misleading of the Foreign Intelligence Surveillance Act (FISA) court during the Obama/Biden administration. 

Unavoidably then, Biden’s incoming AG would have been hounded over whether he or she would name a special counsel, just as Clinton AG Janet Reno was hounded over whether she’d name an independent counsel to investigate alleged fundraising improprieties by Vice President Al Gore, among other things. Now, the new AG will be positioned to say that Durham’s quasi-independent status has been established, while confident that Durham is a straight arrow who follows DOJ rules, and whom the new AG can effectively supervise.

In the final analysis, for all the talk about regulations, what matters is the person, not the protocols. If the prosecutor has a well-earned reputation for scrupulousness and competence, it matters little whether he is on special assignment from inside the DOJ or is a special counsel from outside the government. It matters little whether he has been appointed by this or that administration. By contrast, if a designated special counsel were a notorious political hack, all the regulatory guardrails in the world could not imbue his work with legitimacy. 

Durham has a stellar reputation. In designating him, however loosely, as a special counsel, Barr has shored up the investigation while sparing the incoming administration some tough choices — if the new president and attorney general are prudent enough to see it that way.

Former federal prosecutor Andrew C. McCarthy is a senior fellow at National Review Institute, a contributing editor at National Review, and a Fox News contributor. His latest book is “Ball of Collusion.” Follow him on Twitter @AndrewCMcCarthy.