As you probably know, Benjamin Wittes has been one of the louder anti-Trump voices in the country in recent years. He spent a lot of time (with his toy cannon) promoting the Russian collusion story. In 2018 he advocated voting “thoughtlessly and mechanically” against GOP candidates in order to save the GOP from itself.
Today Lawfare published an article in which Wittes investigated the appointment of John Durham as Special Counsel by AG Barr. Entitled “How Do You Solve a Problem Like John Durham?” The play explores the details of Barr’s appointment and what the Biden administration could do to reverse it. In considering the appointment, Wittes admits that Barr’s move has been 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 U.S. Connecticut attorney as a special adviser, the more diabolical it seems – and the bigger the pickle it produces for Barr’s successor. This is presumably Barr’s intention. Untangling this knot requires quite a bit of diplomacy, advocacy, and finesse. And one wrong move in one of several directions could cause real chaos.
Before moving on to the why, Wittes notes that he is actually not blaming Barr for secretly appointing Durham, as the obvious alternative would have been to make the appointment public shortly before the election. He thinks Barr deserves a pass on this point. Still, he sees the appointment as a way to prevent the incoming Biden administration from brushing Durham aside:
The move has the consequence that Biden is saddled with a special legal assistance investigation. Because while Durham can and will be fired as a US attorney in the normal course of the administrative change, as a special advisor he is protected from removal by regulations requiring him to be fired only for “important reasons” or for some gross inappropriateness. He is also guaranteed a certain level of everyday independence.
Barr’s appointment also gave Durham a wide leeway in what to investigate: essentially anything to do with the Russian investigation. And he required Durham to provide a report at the end of his investigation:
The regulations themselves do not. They only require a confidential report from the Special Representative to the Attorney General explaining the Special Representative’s law enforcement and non-prosecution decisions. Barr’s order goes one step further, however, and requires the following: “In addition to the confidential report required under 28 CFR § 600.8 (c), the Special Counsel is as close as possible and in accordance with the laws and policies and practices of the Department of Justice submits a final report to the Attorney General and any interim reports he deems appropriate in a form that allows public dissemination ”(emphasis added).
In theory, Biden’s AG could choose not to publish this report, but of course that would only raise questions as to why. By preparing a report, Barr has more or less guaranteed that the result will be published. Smart.
Additionally, Barr’s appointment to Durham reflects the appointment of Mueller. Here Wittes draws on a piece by Josh Blackman:
Barr and Rosenstein appointed Durham and Mueller under the same three laws: 28 USC § 509, § 510 and § 515. The first law gives the attorney general extensive supervisory powers, while the second law empowers the attorney general to delegate his powers to subordinates. The third law is the most important for present purposes. Section 515 empowers the Attorney General to authorize a “special assistant” – if not a “special attorney” – to conduct “any type of civil or criminal proceedings, including grand jury proceedings”. Both Durham and Mueller’s appointments contain the same critical sentence: “If the Special Counsel deems it necessary and appropriate, the Special Counsel has the power to prosecute federal crimes arising out of an investigation into these matters.” This provision makes it possible Durham to initiate law enforcement proceedings during Biden’s presidency.
Wittes says the political implication of this detail is that it will be very difficult for a future AG to reverse the appointment:
This careful tracking of Mueller’s appointment appears to make it uncomfortable for a Democratic attorney general to remove Durham or narrow his investigation. After all, the Democrats and many Republicans have firmly insisted that Mueller not be fired and allowed to finish his job. They also insisted hard that the Special Adviser’s provisions regarding the independence of the Special Adviser be observed. By setting this up as a direct legal parallel to the Mueller investigation, Barr enables those suspected of the Durham investigation and seeking to curtail it to suddenly have to argue that it is indeed okay to fire a special prosecutor or ways to find the special advisor’s rules.
In other words, Barr created a landmine for Biden that would be in danger of making headlines about “Saturday Night Massacre” if he tried to have Durham removed. Also, all the people on the left who could speak out in favor of Durham’s removal are in the file against Müller’s removal. Wittes asks us to introduce ourselves where this leaves an AG under Biden:
If you curtail the Durham investigation, Republican senators will cry badly, claiming that the attorney general betrayed an affirmative commitment to close an investigation into the FBI’s wrongdoing against Republicans. Perhaps more importantly, such a move would also set a precedent for the dismissal of special prosecutors to be okay. This is a precedent that is sure to be quoted, exploited and abused in the future.
Conversely, just let Durham do his thing and the new attorney general is running a different risk: running a wide-ranging investigation into the Russia investigation into the new administration for as long as Durham so wishes and mandated to make a public report – possibly including non-criminal matters that were the subject of Durham’s original review at a time chosen by the Special Adviser.
Wittes argues that the media would keep the Democrats on par with the Republicans, but of course that’s not really how things work in Washington. We saw this when all of the women’s groups opposing Judge Kavanaugh suddenly said, “Believe women!” Didn’t mean believing all women. But he’s right that if Democrats were to stick to the same standards it would be a real problem.
Wittes further argues that the next AG can simply revoke AG Barr’s appointment, thereby revoking Durham’s Special Counsel status. Josh Blackman says it could be possible, but cautions that many people may not view this as much other than just firing Durham:
The attorney general may be reluctant to take this step due to external and internal pressures. After all, for the general public, the lifting of Barr’s order would be indistinguishable from the dismissal of the special envoy. Most people will not understand the subtle nuance of this step. And given Barr never removed Mueller from his position as special adviser, there will likely be public pressure to allow Durham to do his job.
There will be public pressure to allow Durham to finish his job, but that again does not mean the media will give him space or reflection. A large part of how this works is the media’s choice of whose voices should be considered “reasonable” and whose voices should be deplatformed for the collective good. I’m sure the left will try to reverse course on Durham (arguing 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. You are trapped in a box that Democrats built for over two years of research into Russian collusion and endless harping on the importance of norm compliance. You can suddenly give up all of this now that it is no longer convenient, but this would not only reveal your deep hypocrisy but also set a powerful precedent for the future.