Bill Barr may have made a key mistake in appointing secret special counsel to investigate Joe Biden
Bill Barr (Brendan Smialowski:AFP)

Attorney General Bill Barr revealed on Tuesday that he has appointed U.S. Attorney John Durham as a special counsel in his ongoing probe into the origins of the Russia investigation. But he may have made a critical error that could undermine the appointment order in the future.


Speaking to the Associated Press, Barr said that he has actually made Durham a special counsel in October but kept the news under wraps until now. He made clear that his intention was to protect the investigation from a potential Joe Biden administration.

"I decided the best thing to do would be to appoint them under the same regulation that covered Bob Mueller, to provide Durham and his team some assurance that they'd be able to complete their work regardless of the outcome of the election," he said.

Robert Mueller became the special counsel after Trump fired then-FBI Director James Comey in 2017, who has been overseeing the investigation. Many feared Trump would corruptly block the investigation from moving forward, so Deputy Attorney General Rod Rosenstein picked Mueller to run it. There is no such justification now for setting up a new special counsel to continue under President Joe Biden, and there's a particularly rich irony in the tactic: Barr's obsession with the Russia investigation, and his decision to task Durham with reviewing it, stemmed from his misguided belief that it was a duplicitous effort by the Obama administration to undermine Trump. But Barr's action looks much more like the accusations he has baselessly lobbed at his predecessors than anything carried out under Obama.

Special counsels have added protection that normal U.S. attorneys lack. Under the DOJ regulations, a special counsel can only be fired for cause, while U.S. attorneys serve at the pleasure of the president. The regulations also require the special counsel to report to the attorney general, who will soon be a Biden appointee. But Congress is to be notified if the attorney general ever overrules any step the special counsel would like to take in the probe.

As many pointed out, there seems to be a big problem with Barr's decision to set Durham up as a special counsel: The regulations don't seem to allow it:

An individual named as Special Counsel shall be a lawyer with a reputation for integrity and impartial decisionmaking, and with appropriate experience to ensure both that the investigation will be conducted ably, expeditiously and thoroughly, and that investigative and prosecutorial decisions will be supported by an informed understanding of the criminal law and Department of Justice policies. The Special Counsel shall be selected from outside the United States Government. [emphasis added]

Durham was already working within the government when he was appointed, apparently making him ineligible for the position Barr wants him to hold. It's not clear how or if this mistake could be used against Durham, though it's possible any target of his investigation could claim he's unauthorized to act in the role. And this mistake could potentially be exploited by a future attorney general if they sought to remove Durham from the position.

The order naming Durham as a special counsel assigns him to

investigate whether any federal official, employee, or any other person or entity violated the law in connection with the intelligence, counter-intelligence, 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.

What's not clear about this is whether there's actually any factual predicate to justify this investigation. No serious justification has ever been put forward, though the president and his allies have hyped various bogus conspiracy fictions surrounding the probe that have been repeatedly debunked; Barr has been clearly sympathetic to these false narratives. One FBI lawyer, Kevin Clinesmith, was caught having created a minor alteration to a document used in an application to surveil Carter Page, a one-time associate of the Trump campaign. Clinesmith has pleaded guilty for this crime, though it likely would have only resulted in termination were Barr not on a mission of vengeance.

The Clinesmith revelation is noteworthy, though, because it was actually discovered in a review of the Russia investigation conducted by Justice Department Inspector General Michael Horowitz, who referred the case to prosecutors. But precisely because Horowitz had so closely reviewed the origins of the Russia investigation — finding that it was launched with sufficient predication, and finding no other crimes apart from Clinesmith's case — the natural question was: Why is Durham investigating at all? Horowitz has reviewed the conduct surrounding the probe, so isn't any further investigation unnecessary and duplicative? Doesn't Barr's move, after all that, reek of a witch hunt?

One justification Barr gave for Durham's appointment was that he had a wider scope than Horowitz, who was limited to reviewing DOJ conduct. Barr has indicated that Durham's probe encompassed the activity of the intelligence agencies, such as the CIA, suggesting to many that he was pursuing wild conspiracy theories floated by Trump supporters who believed there was an international plot against the incoming president in 2016. Barr was even reported to have flown to foreign countries such as Italy to probe their own officials about potential involvement in the plot.

But according to Barr's interview with the AP, these avenues have dried up. The attorney general "said Durham's investigation has been narrowing to focus more on the conduct of FBI agents who worked on the Russia investigation, known as Crossfire Hurricane," according to the report.

It added: "The focus on the FBI, rather than the CIA and the intelligence community, suggests that Durham may have moved past some of the more incendiary claims that Trump supporters had hoped would yield allegations of misconduct, or even crimes — namely, the question of how intelligence agencies reached their conclusion that Russia had interfered in the 2016 election."

This raises the question, once again: If Durham is just focused on the FBI, why was the Horowitz probe insufficient?

Barr's announcement of the probe also seemed to have come at a convenient time. He also told the AP on Tuesday that he has seen no evidence of the kind of wide-ranging election fraud conspiracies that Trump and his allies have been alleging. Trump has, in fact, been claiming he won the election in a landslide, despite having lost decisively to Joe Biden. Barr's admission that there's no evidence for this is a devastating blow for the president who has relied on the attorney general as a faithful defender.

To soften the blow, then, Barr might have thought it was prudent to release the news of a new special counsel that is looking into Trump's grievances. Trump may appreciate the move as an apparent effort to undermine Biden and further his own conspiratorial claims. Perhaps Barr thought bringing the good news with the bad to the president was the best way of keeping his job through Jan. 20 and avoid a humiliating termination.

Barr was also seen visiting the White House for several hours on Tuesday, for undisclosed reasons.