Days before the November presidential election, Attorney General William Barr appointed U.S. Attorney John Durham to serve as a special counsel tasked with investigating any violations of law related to the inquiries conducted by the FBI’s Crossfire Hurricane operation and, later, special counsel Robert Mueller’s team.
An order making Durham special counsel, which was revealed on Tuesday, provides the federal prosecutor further protection against the prospect of President-elect Joe Biden trying to shut down the criminal inquiry into the origins and conduct of the FBI's investigation. So far, the president-elect has not been asked about and has not said whether he would allow Durham's work to continue during his administration. It also remains to be seen how Biden will handle Durham’s selection as special counsel.
“On May 13, 2019, I directed United States Attorney John Durham to conduct a preliminary review into certain matters related to the 2016 presidential election campaigns, and Mr. Durham’s review subsequently developed into a criminal investigation, which remains ongoing. Following consultation with Mr. Durham, I have determined that, in light of the extraordinary circumstances relating to these matters, the public interest warrants Mr. Durham continuing this investigation pursuant to the powers and independence afforded by the Special Counsel regulations,” Barr said in the appointment order, which was dated Oct. 19, 2020.
“The Special Counsel is authorized to investigate whether any federal official, employee, or any other person or entity violated the law in connection with the intelligence, counterintelligence, or law enforcement activities directed at the 2016 presidential campaigns, individuals associated with those campaigns, and individuals associated with the administration of President Donald J. Trump, including but not limited to Crossfire Hurricane and the investigation of Special Counsel Robert S. Mueller III,” Barr's newly revealed order added. “If the Special Counsel believes it is necessary and appropriate, the Special Counsel is authorized to prosecute federal crimes arising from his investigation of these matters.”
The attorney general also said that Durham should submit interim reports as he deems appropriate as well as a final report once he has concluded his investigation so that the public can learn what he has uncovered. Despite rampant speculation that Durham might release a report prior to the November election, that didn’t happen amid concerns about undue influence to the contest.
Trump had floated appointing a “special prosecutor” to investigate the Trump-Russia investigators during a weekend interview with Fox News. A DOJ official told the Washington Examiner that the White House was not made aware of Durham's selection until today.
Early reactions from Congress show Republicans cheering the appointment while Democrats pegged it as a continuation of a politically motivated investigation that will linger after Trump leaves office.
Durham's inquiry has already led to one guilty plea, with Kevin Clinesmith admitting that he fraudulently changed the wording of a CIA email to say that former Trump campaign associate Carter Page was “not a source” for the agency despite the FBI being informed that Page had been an “operational contact” for the CIA for years.
DOJ Inspector General Michael Horowitz released a report in December 2019 that concluded the FBI’s investigation was filled with serious missteps and concealed exculpatory information from the Foreign Intelligence Surveillance Act Court. Horowitz criticized the bureau for at least 17 “significant errors and omissions” in its surveillance of Page and for its reliance upon a discredited and Democratic-funded dossier compiled by British ex-spy Christopher Steele.
Horowitz said FBI interviews with Steele's main source, U.S.-based and Russian-trained lawyer Igor Danchenko, “raised significant questions about the reliability of the Steele election reporting.” Declassified footnotes showed that the FBI was aware that Steele’s dossier might have been compromised by Russian disinformation.
In addition, Horowitz wrote in his lengthy December report that Crossfire Hurricane was “opened for an authorized investigative purpose and with sufficient factual predication.” But Durham, along with Barr, disagreed with the assertion that the opening of the investigation was justified.
“Our investigation is not limited to developing information from within component parts of the Justice Department. Our investigation has included developing information from other persons and entities, both in the U.S. and outside of the U.S.,” Durham said in a rare public statement last year. “Based on the evidence collected to date, and while our investigation is ongoing, last month we advised the inspector general that we do not agree with some of the report’s conclusions as to predication and how the FBI case was opened.”
Barr agreed, saying that Horowitz's report “makes clear that the FBI launched an intrusive investigation of a U.S. presidential campaign on the thinnest of suspicions that, in my view, were insufficient to justify the steps taken.”
Barr further explained his decision to appoint Durham as special counsel in a Tuesday letter sent to the Republican and Democratic leaders of the House and Senate Judiciary Committees.
“Although I had expected Mr. Durham to complete his work by the summer of 2020, the COVID-19 pandemic, as well as additional information he uncovered, prevented him from doing so,” Barr wrote. “In advance of the presidential election, I decided to appoint Mr. Durham as a Special Counsel to provide him and his team with the assurance that they could complete their work, without regard to the outcome of the election.”
Barr said he only notified the congressional leaders now, instead of in October, because he “previously determined that it was in the public interest to toll notification given the proximity to the presidential election.”
In Barr’s appointment order, he cited the regulations governing special counsels, namely 28 C.F.R. § 600, which notes that “the Special Counsel shall be selected from outside the United States Government” and that “Special Counsels shall agree that their responsibilities as Special Counsel shall take first precedence in their professional lives, and that it may be necessary to devote their full time to the investigation.”
An official with the Justice Department defended Barr’s actions, telling the Washington Examiner that “attorneys general have often appointed prosecutors to act as special investigators, either under the special counsel regulations or outside them.”
The DOJ official said that sometimes attorneys general have picked people from inside the Justice Department, as with Durham’s service as a special prosecutor starting in 2008 and 2009 and former U.S. Attorney Patrick Fitzgerald’s time as special counsel beginning in 2003, and other times the appointees have come from outside of DOJ, as with Jack Danforth’s selection in 1999 and Mueller’s in 2017.
“Each time, the attorney general has made his or her decision based upon the surrounding circumstances and in the interests of the Justice Department,” the DOJ official said. “Here, the attorney general determined that it was appropriate for special counsel Durham, who is in the department, to continue his investigation with the independence and autonomy provided under existing regulations.”
Durham, whose title had been special attorney to the attorney general, is widely regarded as a fair and dogged prosecutor, famously leading the prosecution of mobsters, including a series of high-profile convictions of the notorious New England Mafia. His corruption investigation of former Connecticut Gov. John Rowland resulted in the Republican finding himself behind bars following a guilty plea. He was also appointed by then-Attorney General Janet Reno in 1999 to investigate the corrupt connections between law enforcement officers in Boston with James “Whitey” Bulger and other associates of the Irish mob’s Winter Hill Gang.
Durham also took on a sensitive and controversial investigation into the actions taken by members of the U.S. government when then-Attorney General Michael Mukasey appointed him special prosecutor in 2008 to look into the CIA’s destruction of tapes of detainee interrogations. He was then selected by Attorney General Eric Holder to conduct a broader investigation into the CIA’s so-called enhanced interrogation techniques.
Mueller released a report in 2019 concluding that the Russians interfered in the 2016 election in a “sweeping and systematic fashion” but “did not establish that members of the Trump campaign conspired or coordinated with the Russian government.” Roger Stone and retired Lt. Gen. Michael Flynn, both targets of the Russia investigation, were pardoned by Trump.
The former special counsel also laid out 10 instances of possible obstruction of justice, but Barr and then-Deputy Attorney General Rod Rosenstein concluded Trump had not obstructed justice.
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