President Trump released an executive order on Tuesday stating Attorney General William Barr and, by extension, special counsel John Durham are authorized to present classified information to a grand jury in the inquiry into the Trump-Russia investigators.
Trump gave Barr wide-ranging powers to conduct the investigation into the origins and conduct of the FBI’s Crossfire Hurricane inquiry in 2019, and Barr picked Durham to run the investigation last spring, first from his position as a federal prosecutor in Connecticut, and now as special counsel after quietly enhancing his role in October.
“The Attorney General is authorized to use classified information as he deems necessary in connection with his review, including in a grand jury or other proceeding,” Trump said in a memorandum signed Friday and made public today, reinforcing investigative powers granted to Barr and Durham in May 2019.
He added: “The authority in this memorandum shall terminate upon the conclusion of the Special Counsel’s investigation, unless expressly extended by the President. In addition, the authority of the Attorney General under the May 23, 2019, memorandum is hereby extended to terminate only upon the conclusion of the Special Counsel’s investigation.”
Barr's tenure ends this week, and he will be replaced in an acting capacity by now-Deputy Attorney General Jeffrey Rosen.
Justice Department regulations state that “grand jurors do not have the security clearances required for access to classified information” and “accordingly, disclosure of such information to a grand jury may only be done with the approval of the agency responsible for classifying the information sought to be disclosed.” The new Trump memo appears to allow Barr and Durham greater latitude to use classified information before a grand jury.
Durham’s investigation has netted one guilty plea so far.
Kevin Clinesmith, who worked on the investigation into former Secretary of State Hillary Clinton’s private email server and on the FBI’s Trump-Russia inquiry as well as special counsel Robert Mueller’s team, admitted in August that he falsified a document during the bureau’s efforts to renew Foreign Intelligence Surveillance Act authority to wiretap Carter Page, who had been a foreign policy adviser to Trump's 2016 campaign.
Clinesmith fraudulently edited a CIA email in 2017 to state that Page was “not a source” for the agency.
Barr revealed earlier in December that, days before the November election, he elevated Durham to special counsel status, tasked with investigating any further violations of law related to the inquiries conducted by the FBI and Mueller.
“The heads of each department or agency that includes an element of the intelligence community shall promptly provide such assistance and information as the Attorney General may request in connection with that review,” Trump said in May 2019. “The Attorney General may … declassify, downgrade, or direct the declassification or downgrading of information or intelligence that relates to the Attorney General’s review … Before exercising this authority, the Attorney General should, to the extent he deems it practicable, consult with the head of the originating intelligence community element.”
Trump also tweeted in the spring of 2019 that Barr “has also been delegated full and complete authority to declassify information pertaining to this investigation.”
Barr, who appeared at a Justice Department press conference on Monday to announce charges against a Libyan bomb-maker whom the United States believes played a key role in the terrorist attack that brought down Pan Am Flight 103 in 1988, weighed in on the Durham investigation days before his tenure ends this week.
“I designated John Durham as a special counsel because I wanted to provide him and his team with assurance that they’d be able to finish their work, and they’re making good progress now, and I expect they will be able to finish their work,” Barr said. “I’m hoping that the next administration handles that matter responsibly.”
Barr told the Wall Street Journal last week that he did not “see any sign of improper CIA activity” or “foreign government activity before July 2016” and concluded that the CIA “stayed in its lane.” This comes just one year after Justice Department Inspector General Michael Horowitz released a report criticizing the FBI's inquiry. The watchdog determined that the Russia investigation had “sufficient factual predication,” but Barr and Durham disagreed.
“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 statement in December 2019. “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 a year ago, saying, “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.”
When asked if Durham had concluded that the Trump-Russia investigation was not properly predicated on Monday, Barr said, “I’m not going to try to characterize what his conclusions are.”
President-elect Joe Biden has not specifically said whether he would allow Durham to complete his investigation, although his incoming press secretary, Jen Psaki, said this weekend that the former Obama vice president would not talk about the federal investigations into his son, Hunter, with his future attorney general.
“He will not be discussing an investigation of his son with any attorney general candidates, he will not be discussing it with anyone he is considering for the role, and he will not be discussing it with a future attorney general. It will be up to the purview of a future attorney general in his administration to determine how to handle any investigation,” Psaki said.
On Tuesday, Biden was asked by Peter Doocy whether he still believed that “the stories from the fall about your son, Hunter, were Russian disinformation and a smear campaign,” as Biden had claimed before the election.
“Yes, yes, yes. God, love ya, man. You’re a one-horse pony, I tell ya. Thank you, thank you,” Biden said. “I promise you: My Justice Department will be totally on its own making its judgments about how they should proceed.”
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