Attorney General Bill Barr made two key evidence decisions yesterday, which dealt body blows to both President Donald Trump and President-elect Joe Biden. First, Barr stated that the Justice Department had found no evidence of systemic fraud in the election. Second, he stated that there was enough evidence to appoint United States attorney John Durham as special counsel on the origins of the Russia investigation. The move confirmed that Bill Barr remains the only fixed and immobile object in a chaotic and spinning political galaxy.
In appointing Durham as Special Counsel, Barr contradicted the pre-election news that Durham was frustrated and found nothing of importance despite Barr’s pressure. Some of us expressed doubts about these reports as Durham moved to convert this investigation into a criminal case, secured the criminal case of former FBI attorney Kevin Clinesmith, and recently requested over a thousand pages of classified intelligence material.
Under Justice Department regulations, Barr found (and Durham appeared to have agreed) that additional criminal investigation was required, and[t]An investigation into or prosecution of this person or matter by a United States law firm or Department of Justice Department would create a conflict of interest for the department or other exceptional circumstance. “He must find the date in the public interest.
In particular, the Clinesmith investigation is effectively completed. So what is the criminal investigation and what is the conflict?
Presumably, the conflict is not in the current administration as an earlier appointment would have been required. The conflict seems to lie in the upcoming Biden government.
Some of the conflicts that develop appear to be evident as Biden reaches out to a variety of former Obama officials for positions, including the possible selection of Sally Yates as attorney general. Yates was directly involved in the Russian investigation and signed the controversial surveillance of Trump employee Carter Page. She now says that she would never have signed the application if she had known what she knows today.
Durham is now empowered to investigate any person who may have been involved in any intelligence, counter-espionage or law enforcement activities in connection with the 2016 presidential campaigns against anyone associated with those campaigns or those involved in the administration of the Presidents related to Donald J. Trump including, but not limited to, Crossfire Hurricane and the investigation of Special Counsel Robert S. Mueller, III. “The list of names of those covered by this mandate is a who-is-who of Washington from Hillary Clinton to James Comey. . . Yes . . . Joe Biden.
Oddly enough, reports have claimed that Trump acted as a “smoke screen” to delay the report’s release. This ignores not only the legal but also the political significance of the action. Politically, the move is so elegantly deadly that Machiavelli would turn green with envy.
In the past few months, the Democrats appeared to have laid the groundwork to undo the Durham investigation, as well as any investigation into Hunter Biden’s plan of influence on peddling. House Intelligence Committee chairman Adam Schiff, D-Calif., Denounced the Durham investigation as “corrupt” and “political”. During the campaign, Biden himself rejected the “investigation of the investigators”. Over in the Senate, the Democrats joined the mantra, with Senator Amy Klobuchar, D-Minn., And others denouncing the ongoing investigation.
By transforming Durham into a special lawyer, Barr makes it harder to get him fired. It is not uncommon for presidents to replace all US lawyers with political allies. However, Durham is now a special adviser and his replacement or termination of his investigation would be considered an obstructive act. In fact, when Trump proposed such a course of action, a host of Democratic politicians and legal experts have accused him of disability.
The appointment also increases the likelihood of a public report. While Durham has already received a conviction, prosecutors typically don’t produce reports. Special consultants do this. In addition, virtually every Democratic leader with the Mueller report requested that the report be published with little or no editorial staff. The Trump administration waived most executive privileges and released most of the report except for information from the grand jury. Even that was not enough for people like Spokeswoman Nancy Pelosi: “I said, and I will say again, no thank you, Attorney General, we don’t need your interpretation, show us the report and can draw our own conclusions. “House Justice Committee chairman Jerry Nadler called for the” full and complete Mueller report with no editing and access to the underlying evidence. “The Durham appointment will now force the Democrats to answer why they are do not support the same public release of the report so that voters can “draw our own conclusions”.
The Sally Yates nomination gets complicated
The move also complicates the appointment of Sally Yates, widely cited as the front runner for the position of Attorney General. Yates would be placed in an even more precarious position than Jeff Sessions, who refused to avoid even the appearance of a conflict of interest in the state of the Trump administration. Yates has a clear and obvious conflict. She played a role in the earlier Russian investigation. This investigation was based in part on the “Steele Dossier,” a report by a former British spy that has been found to be unreliable and flawed. American intelligence warned that Steele’s main source was a likely Russian agent and that the dossier may have been used to disinformation Russia. While the Clinton campaign repeatedly refused to fund the dossier during the election, reporters later revealed it had lied after finding a trail of money through Clinton’s legal advisor. Most recently, it was announced that President Obama had been informed of an American intelligence report that Clinton had ordered the creation of a Russian collusion story to exonerate her own private server scandal. Yates recently testified that she does not remember these warnings and does not remember knowing about the funding of the Steele dossier.
Yates would have no choice but to back off on dealing with the Durham inquiry. However, if the Biden administration used their nominee-designate to stop the investigation or report, the Biden administration did what Trump never actually did. All of those columns and speeches that falsified the language of the obstacle law would come back to persecute the Democrats.
To use the words of the fired Special Agent Peter Strzok, it is the ultimate “insurance policy” that Durham is allowed to complete and publish the facts of his investigation. Worse still, the Democrats themselves voted in favor.
Jonathan Turley is Shapiro Professor of Public Interest Law at George Washington University and a member of USA TODAY’s Board of Contributors. Follow him on Twitter: @JonathanTurley