Durham named special counsel amid cloud
WASHINGTON — U.S. Attorney for Connecticut John Durham is now one of just a handful of individuals to ever be named special counsel for the Department of Justice.
The change may extend the life of his high-profile investigation into matters surrounding the 2016 election. In name, at least, it extends a distinction to Durham’s investigation that elevating it on a par with Special Counsel Robert Mueller’s two-year probe and others.
Some lawyers have questions about whether Durham qualifies for the special counsel job, however, based on the requirements spelled out in the law authorizing the position.
U.S. Attorney General William Barr told Congress this week he conferred this new title and its powers to Durham back in October. The move appears aimed at ensuring the continuation during the administration of Presidentelect Joe Biden of an investigation that Durham has been working on for more than a year — a probe of how federal authorities investigated the 2016 election and Russian interference.
“It’s customary for a president to have his own U.S. attorneys, so John could be fired and nobody would ever know what came out of the investigation,” said Stan Twardy, Connecticut’s former U.S. Attorney from 1985 to 1991. “What this appointment does is now the new Attorney General would have to specifically shut off the investigation... he can stay in this role even if he is not an employee of the Department of Justice.”
The special counsel designation does not change Durham’s powers to investigate and prosecute, Twardy said.
U.S. Sen. Richard Blumenthal, a member of the Senate Judiciary Committee and Connecticut’s former Attorney General, called the appointment unusual and Durham’s investigation “deeply flawed.”
“This appointment is highly abnormal and reflects a highly abnormal investigation,” Blumenthal said. “Now Attorney General Barr seems to be abusing the special counsel regulations in order to shackle the next administration with this political distraction.”
Senate Judiciary Chairman Lindsey Graham, R-S.C., urged Democrats to show Durham the same respect as Mueller.
"This important investigation must be allowed to proceed free from political interference,” Graham said, according to Politico.
Durham is an acclaimed career prosecutor with a long history of tackling organized crime at the state and federal level. He’s handled sensitive investigations for U.S. attorneys general of both parties. He declined to comment for this column.
His probe into the government’s investigation into the 2016 election has already produced one prosecution: former FBI attorney Kevin Clinesmith pleaded guilty to making false statements when he doctored an email submitted to a federal court for a warrant. Prosecutors are seeking jail time for Clinesmith.
Director of National Intelligence John Ratcliffe said in October that they had released over 1,000 pages of previously classified documents to Durham.
Democrats have taken issue with the investigation because Barr launched it with urging from President Donald Trump, who called investigations into his campaign — including that by Special Counsel Mueller — a “witch hunt.”
Mueller’s two year investigation looked into the the Russian government’s efforts to interfere in the 2016 election and any coordination between Russia and the Trump campaign. He established that the campaign did not collude with Russia, but he did not make a finding on whether the campaign obstructed justice.
The day after Barr sent a controversial letter to Congress summarizing the findings of Mueller’s investigation in March 2019, Barr sat down with Durham in his office in Washington, D.C. Since then, Barr has taken an active role in the Durham probe — Durham and Barr traveled to Italy together twice in August to meet with officials for their inquiry. They’ve also sought help from other foreign countries and individuals — including Ukrainian nationals.
According to the special counsel regulations passed in 1999, a special counsel may be appointed when a U.S. Attorney General determines a criminal investigation of a person or matter is warranted and that investigation or prosecution by a U.S. Attorney or the Department of Justice “would present a conflict of interest for the Department or other extraordinary circumstances.” The investigation is supposed to be “in the public interest” to complete.
Former federal prosecutor Elizabeth De La Vega noted that the special counsel regulations require that a special counsel come from outside the U.S. government.
Neal Katyal, former U.S. acting solicitor general who helped write the special counsel regulations, wrote in an op-ed that the special counsel position was designed to be filled by someone whose independence, integrity and impartiality was assured. But he questioned whether politics had already tainted the Durham investigation because Nora Dannehy, his top aide in the investigation, resigned in part over concerns that the investigation was under political pressure to conclude before the presidential election.
“John is a lot like Bob Mueller,” Twardy countered. “He was never the director of the FBI, but he has the same reputation as a non- partisan, play by the books prosecutor and somebody who doesn’t leak anything.”
As special counsel, Durham will report continue to investigate although he may cease working as U.S. Attorney for Connecticut in January. He will make reports to Biden’s attorney general who could require him to explain his work or fire him for a list of specific reasons. But removing Durham from his investigation is likely to be viewed as an obstructive act.
Durham’s work could result in a final report — parts of which may be made public — in addition to any further prosecutions.