In October the Atttorney General Barr secretly appointed Connecticut U.S. Attorney John Durham to the position of special counsel. Durham was first appointed in May 2019 to investigate “certain intelligence and law-enforcement activities surrounding the 2016 presidential election” according a letter Barr sent Lindsey Graham and others on December 1, 2020..
Durham during that time has indicted a lawyer connected with the FBI of altering a document. In his new appointment Durham is given a sweeping mandate to examine “ whether any federal official, employee, or any other person or entity violated the law in connection with the intelligence, counter-intelligent, 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.”
AG Barr in doing this has expanded Durham’s original mandate to authorize him to investigate the people involved with the Mueller Report. In other words Durham is authorized to investigate whether any person connected with that investigation violated “any” law. The Mueller investigation did not end until 2019.
This means Durham, whose appointment seems to have violated 28CFR section 600.3 which states “the special counsel shall be selected from outside the United States government”, will be able to cause a little bit of havoc during the Biden administration by intruding on its operations by possibly investigating Biden appointments who may have had nothing to do with the 2016 presidential election.
The big problem with the appointment is it establishes precedence for one administration attempting to maintain prosecutorial powers into and through a new administration. First no one has any idea what violations of the law Durham is now investigating. There seems to be no limit on his investigatory powers. Traditionally a president appoints all prosecutors in his new administration but here Barr is deciding he will appoint his own investigating prosecutor with a mandate almost coextensive with the newly installed attorney general. Where will that lead us?
If Barr can do such an open ended appointment in secret what is to prevent him from doing others? What would stop him from appointing Rudy Giuliani, or Sidney Powell, or Jenna Ellis the lawyers on Trump’s team, now running around the country alleging fraud by the Democrats, special counsel to investigate the circumstances surrounding the election of president in the 2020 election?
What if Barr appointed himself, or had his deputy appoint him, or if not him another Trump ally to investigate any crimes committed by any person in connection with the Trump administration? Would this block the new attorney general from doing it? Would this special counsel be able to immunize from prosecution those involved in criminal activity?
The chances for mischief are endless. The new administration will spend its days looking over its shoulder as shadow unaccountable special counsels wreak confusion and turmoil. It’s a recipe for endless strife now and for future presidents.
Durham is a life long Republican and Barr loyalist, he traveled outside the US with Barr looking for dirt on Biden and his son. Rudy Giuliani in an interview and Fox News said that Durham was spending a lot of time in Europe because he was investigating Ukraine. How unseemly would it be if Durham seeks to depose Biden or indict his son?
The only way to deal with it is to nip it in the bud. The new AG must bring Durham in and have him layout where he’s been and where he’s going, he must limit his access to the intelligence files, he must prohibit him from making public statements (Durham has already done so criticizing the inspector general), he must pre-approve any grand jury witness or interview of any government official without written probable cause, and he must set an end date – no later than 5 years after November 2016- when the statute of limitations expires, and to ensure Durham pulls no hanky-panky he should appoint his own assistant to have the power to oversee Durham’s every move.
Even that’s not the best move, he really should be fired right away based on my earlier suggestions about the pernicious effects it will have on any Department of Justice.p having two attorney generals. As for people getting upset, those that do will always be Biden and Democrat enemies so you lose nothing.