On Thursday, writing for The New York Times, former Solicitor General Neal Katyal tore into Attorney General William Barr for appointing John Durham, the prosecutor looking into the origins of the Russia investigation, to a special counsel role — arguing that this constitutes a fundamental abuse of special counsel regulations.
"The special counsel regulations, which I drafted in 1999 as a Justice Department staff member, were designed with the idea that some investigations require a person from outside the department to assure the public of sufficient independence," wrote Katyal. "We had in mind circumstances in which, for example, a president was alleged to have engaged in wrongdoing and having his attorney general conduct the investigation could cause a problem with impartiality. That is why they expressly require someone 'outside the United States government' to serve as special counsel. Doing so helps reassure the public of an independent investigation."
Barr's attempt to hunt for misconduct in the Russia investigation, Katyal argued, does not meet the intended criteria for a special counsel investigation.
First of all, Katyal wrote, the investigation "appears not to be investigative work that requires insulation from politics but political work that Mr. Barr now wants to insulate from investigative scrutiny." Second, Barr did not even make a case that a special counsel resolves a "conflict of interest for the department or other extraordinary circumstances." And third, Durham himself has been tainted by the appearance of running a political investigation.
"Mr. Durham, for his part, exists as a legal patchwork — an amalgamation of some special counsel rules and some rules of Mr. Barr’s own doing," concluded Katyal. "In the end, this jury-rigged prosecutor is one with little legal precedent or authority, and he can easily be dismissed in the new administration and, if needed, replaced by someone who adheres to all the special counsel regulations in his stead."
You can read more here.