Attorney General Barr Appoints Durham as Special Counsel to Continue Investigating Origins of Russia Collusion Probe

What’s the story?

• Attorney General William Barr on Tuesday told the Associated Press that he appointed U.S. Attorney John Durham as a special counsel on October 19th to continue his investigation into the origins of the probe into alleged collusion between Donald Trump’s 2016 presidential campaign and Russia.
• By making Durham a special counsel, Barr is providing extra protection for Durham to continue his investigation into the origins of the Russia collusion probe beyond the inauguration of President-elect Joe Biden. It’s common for an incoming administration to remove U.S. attorneys, sometimes en masse, so Durham’s investigation could’ve been thwarted through his termination by Biden without the special counsel status.
• Barr told the AP he “decided the best thing to do would be to appoint them under the same regulation that covered Bob Mueller, to provide Durham and his team with some assurance that they’d be able to complete their work regardless of the outcome of the election.” 
• According to the AP, the DOJ order appointing Durham a special counsel authorizes his team “to investigate whether any federal official, employee or any person or entity violated the law in connection with the intelligence, counter-intelligence or law enforcement activities” directed against the 2016 presidential campaigns, people associated with the campaigns, or the Trump administration.

What is Durham investigating?

• Durham has been investigating misconduct by officials in the Federal Bureau of Investigation (FBI) and Dept. of Justice (DOJ) in the Russia collusion probe (known as Crossfire Hurricane) since he was tasked by Attorney General Barr with the investigation in October 2019.
• One aspect of the origins of the Russia collusion probe Durham is known to be investigating is the conduct of agents responsible for the surveillance of Trump campaign aide Carter Page. 
• The DOJ’s inspector general identified 17 significant errors and omissions in the FBI’s applications to conduct surveillance of Page, including the omission of exculpatory information. The flawed Steele dossier played a “central and essential role” in the Page surveillance according to the IG despite evidence the FBI was aware the dossier may have been compromised by Russian disinformation and its primary sub-source was a suspected Russian agent.
• Several of the FBI and DOJ officials who signed off on the surveillance said they wouldn’t have approved if they had known of the errors. The list includes former FBI Director James Comey, who called the Page applications “embarrassing” and “sloppy”; former FBI Deputy Director Andrew McCabe, who said he was “shocked and disappointed at the errors and mistakes”; in addition to former Acting Attorney General Sally Yates and former Deputy Attorney General Rod Rosenstein.
• Durham’s probe netted its first criminal conviction when former FBI lawyer Kevin Clinesmith pleaded guilty to making a false statement by altering an email from the CIA confirming that Carter Page was a source for the agency to make it appear the email was stating that Page was “not a source” for the CIA. The falsified email was included in the FBI’s third and final FISA application after the exculpatory information was omitted from the initial application.
• It’s unclear whether Durham’s inquiry will address Michael Flynn, the former National Security Adviser who was recently pardoned by President Donald Trump after the DOJ sought to drop charges against him that were pressed after he made false statements to FBI agents involved with Crossfire Hurricane during the early days of the Trump administration. The false statements were made in an interview the DOJ found was “conducted without any legitimate investigative basis” and was “untethered to, and unjustified by, the FBI’s counterintelligence investigation into Mr. Flynn”.

What is a special counsel?

• A special counsel is an attorney granted independent prosecutorial power to investigate matters that could create a conflict of interest for lawyers on staff at the DOJ. Special counsels have the power of any U.S. attorney, so they’re able to convene a grand jury to consider criminal charges and access documents during the fact-finding phase of an investigation, as well as issue subpoenas.
• The scope of their investigation is defined by DOJ documents formally appointing the special counsel, who can be an active U.S. attorney (like Durham), a retired federal law enforcement official (like former Special Counsel Robert Mueller), or an outside lawyer.
• A special counsel has significant autonomy, and while they report to the DOJ, they can appeal any DOJ decision to the chairs and ranking members of the House and Senate Judiciary Committees. 
• Under the DOJ regulations governing special counsels, they can only be fired by the attorney general for good cause, such as misconduct, dereliction of duty, conflict of interest, or violations of DOJ policies. A president under investigation could instruct their attorney general to fire the special counsel, an order the AG could implement or decline, but the firing of a special counsel would be politically controversial and could prompt Congress to pursue impeachment.
• The laws and regulations governing the special counsel role have changed over the years, as has the formal title associated with it. Prior to Durham, the most recent such investigation was done by Special Counsel Robert Mueller, who was initially tasked with investigating potentially criminal collusion between Trump and Russia and broadened his probe to include potential obstruction of justice by Trump. 
• Mueller’s probe “did not establish that members of the Trump campaign conspired with the Russian government in its activities” but did find that Russia felt it would benefit from a Trump presidency. His report didn’t reach a conclusion on charges of obstruction of justice, instead leaving the issue to Congress, which declined to pursue impeachment over the matter and eventually sought Trump’s impeachment for other reasons. 
• During the Mueller probe, bills were introduced in Congress to provide special counsels with statutory protections against their wrongful termination; require the automatic appointment of a special counsel whenever the president, vice president, or their families is under investigation; and require a special counsel to produce a summary of their findings for Congress and the public. None of those bills received votes, but could draw more interest in the next Congress during the presumptive Biden administration.

— Eric Revell

(Photo Credit: U.S. Marshals Service via Flickr / Creative Commons)