Attorney General William Barr is setting the stage for a Senate brawl on his way out the door with the appointment of U.S. Attorney John Durham to serve as special counsel well beyond the end of the Trump administration.
The fight over Durham, the federal prosecutor probing the origins of the 2016 Russia probe, will be in full force once President-elect Joe Biden nominates his pick for attorney general.
Senate Republicans say Biden’s nominee to lead the Justice Department should promise not to terminate Durham, who has been investigating whether the Obama administration improperly targeted the Trump campaign in 2016 when the FBI looked into allegations of collusion between the campaign and Russian officials.
Republicans on the Senate Judiciary Committee, which will hold hearings for Biden’s attorney general pick, want a pledge that the nominee will not interfere with Durham’s work.
“I think John Durham’s investigation is very important, and any attorney general who would impede that investigation or who would obstruct justice shouldn’t be confirmed,” said Sen. Ted Cruz (R-Texas), a member of the Judiciary panel.
A special counsel can only be fired by the attorney general for a stated reason such as misconduct, dereliction of duty, incapacity, conflict of interest or violating department policies.
Sen. Josh Hawley (R-Mo.), who also serves on Judiciary, defended the need for Durham’s work to continue after Biden takes office.
“The public deserves to know what is going on here and they deserve to get all of the facts and information,” he said. “The investigation needs to conclude but it needs to be allowed to conclude in a timely fashion.”
Barr revealed in a letter to Congress Tuesday that he appointed Durham as special counsel on Oct 19, giving him the same authority and independence as former special counsel Robert Mueller, who headed an investigation of Trump’s inner circle that lasted nearly two years and cost more than $30 million.
Durham is now empowered to review Mueller’s investigation of Trump as well as the FBI’s early probe of contacts between the Trump campaign and Russian officials.
Barr’s move has raised concerns among Democrats that Durham will become a persistent distraction by stretching out what they view as a politically motivated investigation without sound basis.
For that reason, some Democrats are arguing that Biden’s attorney general should terminate Durham’s special counsel authority immediately, saying Durham has failed to reveal any serious or substantial misconduct at the FBI.
They also note that Justice Department inspector general Michael Horowitz has already delivered to Congress a lengthy public report on the FBI’s Russia investigation. That report shot down claims that the FBI was motivated by political bias to investigate Trump but found that FBI applications for surveillance authority contained inaccuracies and made important omissions.
Sen. Mazie Hirono (D-Hawaii), a member of the Judiciary Committee, is among the Democrats saying the new attorney general should end Durham’s special counsel designation.
“I think that is something that Barr was pursuing that has no basis. There’s no factual reason for that. And so why should the resources of the next attorney general go to something like that?” she asked.
Democrats are also troubled by the fact that Barr appointed Durham as special counsel before the election but kept it secret until this past week.
“There are a lot of things this administration has done that when it comes to light you just go, ‘Oh my gosh, more of this kind of behavior,’” Hirono said, adding that Durham’s appointment as special counsel was not “warranted to begin with.”
Barr’s memo on Durham’s new authority did not assert a specific crime or individuals for him to investigate.
Durham had served as an assistant U.S. attorney in different jobs in the District of Connecticut for 35 years before being sworn in as U.S. attorney for the District of Connecticut in 2018.
Sen. Chris Murphy (D-Conn.) blasted Durham’s recent appointment by saying, “The new attorney general should unwind all the bat-shit crazy moves that Trump has made, this included.”
“This shouldn’t survive one day into the Biden administration,” he said of Durham’s special counsel status.
Democrats remember the lengthy and expensive investigation into the 2012 Benghazi attacks led by the House Select Committee on Benghazi, which failed to find any new evidence of wrongdoing by former Secretary of State Hillary Clinton in its final 800-page report.
Democrats saw that probe as primarily politically motivated and now suspect the Durham investigation could fuel partisan probes in the Senate, such as the so-called “unmasking” of former national security adviser Michael Flynn, a controversy that three prominent GOP senators — Sens. Chuck Grassley (Iowa), Ron Johnson (Wis.) and Rand Paul (Ky.) — made public in May.
More than two dozen senior officials in the Obama administration requested authority to review intelligence documents related to Flynn’s conversations with then Russian Ambassador Sergey Kislyak. It was later revealed that the FBI, not the National Security Agency, intercepted Kislyak’s calls and that Flynn’s name was never redacted in the FBI report on Flynn’s conversations.
Sen. Richard Blumenthal (D-Conn.), another member of the Judiciary Committee, said Durham’s new role will likely be a topic of debate during the confirmation hearings for Biden’s attorney general.
“It’s an appropriate area of questioning, but we should also avoid political interference in the questions of whether to investigate or end an investigation,” he said.
“There have been multiple investigations of exactly the same topic that Durham [is investigating] and none of them has found anything, including the inspector general, which is the most recent and probably the most thorough,” he said of Horowitz’s report. “There’s a real question whether there’s any merit whatsoever here to an investigation that seems more a distraction.”