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December 2, 2020

Barr Appoints Durham as Special Counsel

Trump’s AG just made it harder for Biden to simply make the investigation into the Russia-collusion hoax disappear.

Attorney General William Barr alerted Congress in a letter Tuesday that he had appointed U.S. Attorney John Durham as special counsel under Justice Department regulations, a move he made back on October 19. Barr explained that he delayed notifying members of Congress due to “the proximity to the presidential election” and “to provide [Durham] and his team with the assurance that they could complete their work, without regard to the outcome of the election.”

Durham was first appointed by Barr in May 2019 to investigate the origins of the Russia-collusion hoax, and his probe soon became a criminal one. He had been expected by President Donald Trump and many other conservatives to not only unearth more damning evidence regarding illegal actions undertaken by members of Barack Obama’s deep state in their efforts to oust Trump but also to bring charges against some big-name players. Unfortunately, after a year and a half of investigating, only one low-level individual, FBI lawyer Kevin Clinesmith, has been held to account, as he pleaded guilty to altering an email for the FBI’s Carter Page FISA warrant application. (That’s part of the reason for Page’s lawsuit.)

Even Barr tacitly admitted his expectation had thus far gone unmet. “Although I had expected Mr. Durham to complete his work by the summer of 2020,” Barr said, “the COVID-19 pandemic, as well as additional information he uncovered, prevented him from doing so.”

It’s unclear if Barr’s action would truly prevent a Joe Biden administration from ending and closing the books on Durham’s investigation on day one of taking office. One reason is that Durham’s appointment may not hold up. As former federal prosecutor Andrew McCarthy warns, “Under Section 600.3 of the regs, ‘The Special Counsel shall be selected from outside the United States Government.’ At the time Mueller was appointed, for example, he was a private lawyer no longer in government service.” Durham was not “outside” the government.

However, Barr’s action does make it far more politically difficult for Biden to simply make the investigation disappear, as it would rightly be seen as a purely partisan and self-serving move — one that Republicans would effectively argue was intended as a cover-up to prevent the American people from seeing what Durham discovered. By ending it early, Biden would only be inviting a scandal.

Finally, while Trump and others have been clearly disappointed by Durham’s seeming slowness and lack of results, the fact that he has remained steadfastly unmoved by political pressure from either side should lend greater credibility to his findings when they are eventually released.

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