Barr’s Appointment Of Special Counsel Leaves Biden and Democrats In A Muddle

Below is my column in USA Today on the implications of the appointment of U.S. Attorney John Durham as a Special Counsel.  House Intelligence Committee Adam Schiff and other Democrats have already denounced the move and called for the next Attorney General to consider rescinding the appointment.  While Schiff previously called for legislation to protect Special Counsel Robert Mueller to complete his work without interference from the Attorney General, he ramped up the rhetoric against Durham as leading a “politically motivated investigation.” Durham was previously praised by Democrats and Republicans alike as an independent, apolitical, and honest prosecutor.  After insisting that the public has a right to see what has been uncovered over years of investigation by Mueller, they are now pushing to end the Durham investigation and forestall any final public report.

Here is the column:

Attorney General Bill Barr made two important evidentiary decisions yesterday that delivered body blows to both President Donald Trump and President-elect Joe Biden. First, Barr declared that the Justice Department has not found evidence of systemic fraud in the election. Second, he declared that there was sufficient evidence to appoint United States Attorney John Durham as a Special Counsel on the origins of the Russia probe. The move confirmed that, in a chaotic and spinning political galaxy, Bill Barr remains the one fixed and immovable object.

By appointing Durham as a Special Counsel, Barr contradicted news reports before the election that Durham was frustrated and found nothing of significance despite Barr’s pressure. Some of us expressed doubts over those reports since Durham asked for this investigation to be upgraded to a criminal matter, secured the criminal plea of former FBI lawyer Kevin Clinesmith, and asked recently for over a thousand pages of classified intelligence material.

Under the Justice Department regulations, Barr had to find (and Durham apparently agreed) that there is need for additional criminal investigation and “[t]hat investigation or prosecution of that person or matter by a United States Attorney’s Office or litigating Division of the Department of Justice would present a conflict of interest for the Department or other extraordinary circumstances.” He must also find the appointment in the public interest.

Notably, the investigation of Clinesmith is effectively completed. So, what is the criminal investigation and what is the conflict?

Developing conflicts

Presumably, the conflict is not in the current administration since it would have required an earlier appointment. The conflict would seem to be found in the upcoming Biden administration.

Some conflicts developing seem obvious as Biden turns to a host 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 off on the controversial surveillance of Trump associate Carter Page. She now says that she would never have signed the application if she knew what she knows today.

Durham is now authorized to investigate anyone who may have “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.” The list of the names of people falling within that mandate is a who’s who of Washington from Hillary Clinton to James Comey to . . . yes . . . Joe Biden.

Bizarrely, reports have claimed that Trump was irate at the move as a “smokescreen” to delay the release of the report. That ignores not just the legal but political significance of the action. From a political perspective, the move is so elegantly lethal that it would make Machiavelli green with envy.

Over the last few months, Democrats appeared to be laying the foundation to scuttle the Durham investigation as well as any investigation into the Hunter Biden influence peddling scheme. House Intelligence Committee Chairman Adam Schiff (D-Calif.) denounced the Durham investigation as “tainted” and “political.” On the campaign trail, Biden himself dismissed the “investigation of the investigators.” Over in the Senate, Democrats joined in the mantra with Sen. Amy Klobuchar, D-Minn., and others denouncing the continued investigations.

By converting Durham into a special counsel, Barr makes it harder to fire him. It is not uncommon for presidents to replace all U.S. Attorneys with political allies. Durham however is now a Special Counsel and his replacement or the termination of his investigation would be viewed as an obstructive act. Indeed, when Trump even suggested such a course of action, he was accused of obstruction by a host of Democratic politicians and legal experts.

The appointment also makes a public report more likely. While Durham already secured a conviction, prosecutors do not ordinarily prepare reports. Special counsels do.  Moreover, with the Mueller report, virtually every Democratic leader demanded that the report be released with no or few redactions. The Trump administration waived most executive privileges and released most of the report except for grand jury information. Even that was not enough for figures like Speaker Nancy Pelosi: “I have said, and I’ll say again, no thank you, Mr. Attorney General, we do not need your interpretation, show us the report and we can draw our own conclusions.” House Judiciary Committee Chair Jerry Nadler demanded the release of the “full and complete Mueller report, without redactions, as well as access to the underlying evidence.” The Durham appointment will now force Democrats to answer why they do not support the same public release of the report so that voters can “draw our own conclusions.”

Complicating Sally Yates’ nomination

The move also complicates the nomination of Sally Yates, who is widely cited as a front-runner for the position of Attorney General. Yates would be placed in an even more precarious position than Jeff Sessions who recused himself to avoid even the appearance of a conflict of interest at the state of the Trump administration. Yates has a clear and obvious conflict. She played a role in the earlier Russian investigation. That investigation was based in part on the “Steele dossier,” a report by a former British spy which has been shown to be unreliable and flawed. American intelligence warned that Steele’s main source was a likely Russian agent and the dossier may have been used for Russian disinformation. While the Clinton campaign repeatedly denied funding the dossier during the election, reporters later showed that it lied after finding a money trail through Clinton’s campaign legal counsel. Most recently, it was disclosed that President Obama was briefed on an American intelligence report that Clinton had ordered the creation of a Russian collusion story to take pressure off her own scandal involving her private server. Yates testified recently that she has no recollection of these warnings and does not recall knowing about the funding of the Steele dossier.

Yates would have no choice but to recuse herself in dealing with the Durham investigation. However, if the Biden administration used her designated deputy to scuttle the investigation or the report, the Biden administration will have done what Trump never actually did. All of those columns and speeches contorting the language of the obstruction statute would come back to haunt the Democrats.

It is, to use the words of fired Special Agent Peter Strzok, the ultimate “insurance policy” that Durham will be allowed to complete and release the facts of his investigation. Worse yet, the Democrats themselves made the case for him to do so.

Jonathan Turley is the 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

212 thoughts on “Barr’s Appointment Of Special Counsel Leaves Biden and Democrats In A Muddle”

  1. Thanks to professor Turley for addressing the abuse of RPC 8.4 by people trying to intimate lawyers and deny them free speech

  2. Biden will just have to suck it up an let Durham finish the investigation. If he interferes it would open the door to future presidents shutting down investigations.

  3. Hmmm, as I understand it, Barr allegedly told the AP that they had found no evidence SO FAR. Now, my understanding of law enforcement investigations is that they don’t announce what evidence they have or do not have until the investigation is over. As for Durham, Democrats are going to try to fire him.

    1. Durham and Barr have been sent mirrors and flashlights to see if they can find their rears. So far no success.

  4. And what sense of correctness will prevail upon Schiff to repent of an unbalanced attack on the Special Counsel? Shane? Reason? A need to uphold his own party’s credibility?

  5. Turley omits that the appointment is illegal. You cannot appoint a US Attorney as an independent counsel. That would probably mean someone could sue to have him removed – Biden would not need to fire him.

    Moreover, I would think Durham could have completed his work well before now if something were there. The point was always to simply announce an investigation to help Trump in the election. But Barr does not want to tell Trump that there is nothing there, so he appoints Durham as Special Counsel – Durham releases a report on January 21 that there is nothing there submits a report to Biden’s new AG and everyone just forgets about it and moves on.

    I mean, the Hillary email scandal died a quiet death a couple of years ago after a Trump administration investigation and the right wing media hardly noticed.

    When Trump appointed a voter fraud commission after the 2016 election it found nothing and quietly disbanded,

    The fact is, the people who deliver Trump bad news get fired. Those who tell him what he wants to hear – start investigations – get rewarded and then when the investigations turn out to be nothing they expect that no one will really notice and Trump will have forgotten about it.

    Only Turley thinks these Trump-ordered investigations were ever designed to find actual wrongdoing.

    1. We already KNOW there is something there. Where have you been for the last four years?

      The question has always been whether anyone will prosecute the malefactors and, if so, how aggressively.

  6. This is a “how to” video —

    How to steal an election, brought to you by the upstanding election officials in Fulton County, Georgia.

    Here is that security tape footage: https://www.youtube.com/watch?v=3c3-QiNLI7M

    Watch the segment in the upper right-hand corner. The narrator is attorney Jacki Pick. The December 3 presentation was made to Georgia legislators.

    The illegal ballot counting starts at about 2:00 on the tape,*after* the election officials kicked out the ballot-counting observers and media. The officials continued counting ballots — in violation of Georgia election laws — for about 2 hours (from 11 p.m. to 1 a.m.).

    The ballot stuffing starts at about 6:00 on the tape (about 11 p.m.). Earlier that morning, an election official (caught on tape) had hidden 4 boxes and suitcases, full of ballots, under a table draped in black cloth. As you can see on the surveillance tape (6:00), at about 11 p.m. — after the observers and media had been kicked out — those boxes and suitcases, stuffed with ballots, were removed from under the table. The illegal/fraudulent ballots were then recorded over the next two hours.

    Here is a brief article about that illegal ballot counting and potential fraud:

    “[T]he evidence shown in the video contains more than enough votes being counted without a monitor to surpass the margin of victory for Biden.”

    https://www.newsmax.com/newsmax-tv/georgia-poll-watchers-jacki-pick/2020/12/03/id/999979/

    Incidentally, if the ballots in those hidden boxes and suitcases were legitimate, why were they removed from underneath the table *after* the observers and media had been kicked out?

    1. Gabriel Sterling, Voting System Implementation Manager for GA (twitter.com/GabrielSterling/status/1334825233610633217):
      “The 90 second video of election workers at State Farm arena, purporting to show fraud was watched in its entirety (hours) by @GaSecofState investigators. Shows normal ballot processing. Here is the fact check on it.
      https://leadstories.com/hoax-alert/2020/12/fact-check-video-from-ga-does-not-show-suitcases-filled-with-ballots-pulled-from-under-a-table-after-poll-workers-dismissed.html

      Also https://twitter.com/ASFleischman/status/1334865575705763840

      Conspiracy theorists are trying to convince you of something false. Choose to look at all of the relevant evidence to understand why it’s false.

      1. They are Schrodinger’s Ballots. Nobody can tell if they are legitimate or not.

        The moment they broke procedure and “stopped” counting to send away observers and continued to count they spoiled the batch and threw every ballot in the room into limbo.

        The whole election needs to be redone with verifiably legitimate ballots.

        And China doesn’t get to vote.

        1. GA Gov. Kemp: Vote Suitcase Video ‘Concerning’ — ‘Would Be Good’ for Secretary of State to Say Exactly What Was Going On

          Thursday on FNC’s “The Ingraham Angle,” Gov. Brian Kemp (R-GA) acknowledged what was allegedly video evidence of “suitcases” of ballots at a Georgia ballot-counting location opened and scanned once poll watchers departed the location, which was played during a hearing before the Georgia Legislature earlier in the day.

          Kemp called it “concerning” and called on Georgia Secretary of State Brad Raffensperger to address the video.

          1. Raffensperger’s office has already addressed the video.

            “‘I just got off the phone with a senior source in the Secretary of State Brad Raffensperger’s office, a Republican, who tells me that they had a designated observer at that spot all night, the entire time, and they’ve seen this video, they’re familiar with the claims, and they said that they’re simply not true,’ [Fox News reporter] Jenkins said in a report on Friday morning. ‘The suggestion that Georgia vote counters were sent home and ballots were brought in in suitcases, also not true.’
            “‘What appears is reported as suitcases are actually the normal containers that ballots are put in,’ he continued. ‘That is not unusual, they say, for them.’
            “Georgia election official Gabriel Sterling also debunked the voter fraud claims on Twitter, saying that the clip shows ‘normal ballot processing’ as determined by investigators at the secretary of state’s office, who watched hours of footage from security cameras at the State Farm Arena. …”
            https://www.newsweek.com/fox-news-reporter-debunks-georgia-election-fraud-claims-made-tucker-carlson-sean-hannity-1552397

      2. Commit to dishonesty would be screaming like a stuck Chinese pig if Republican pole workers were caught on CCTV doing that.

        You should start looking for tall buildings with easily accessed roofs.

        1. Rhodes the Russian troll uses a strategy that Allan likes too, where he pretends to read someone else’s mind and then treats his imaginary belief as if it were reality.

      3. From your linked article: “[T]he ballots seen in the video were in regular ballot containers — not suitcases — and they had been removed from their envelopes and processed while news media and election observers for the Republican Party and Trump campaign were present.”

        That’s a lie. The surveillance tape clearly shows the following: Observers and the media leave the room. *Then* (at about 11 p.m.) election officials remove 4 suitcases and boxes that were hidden under the table. *Then* they remove those (illegal) ballots, and record them — over two hours, all while observers and media are *not* present.

        Are you going to trust those who are in the tank for Biden, or your own lying eyes?

        1. It’s not a lie, Sam. Keep reading: “The media and party observers were never told to leave because counting was over for the night, but they apparently followed workers who left once their job of opening envelopes was completed, the chief investigator for the secretary of state told Lead Stories. The observers were free to return at anytime, she said. Georgia law allows observers, but does not require them to be there for ballots to be counted, she said. … Election workers known as “cutters” because their job was to open absentee ballot envelopes and verify ballots for eventual scanning and counting were dismissed for the night sometime after 10 p.m. on November 3, 2020, because their work for the evening had been completed, he explained. Those workers who remained were responsible for conducting the scanning portion of the process, since ballots could not be left without being scanned overnight.”

          Pay attention to details. A claim that “the ballots seen in the video were in regular ballot containers — not suitcases — and they had been removed from their envelopes and processed while news media and election observers for the Republican Party and Trump campaign were present” does not mean that the observers were present *later* when the ballots were removed from the ballot containers for scanning. Removing the ballots from their envelopes (as is required for ballot secrecy) and verification is a separate step from scanning them. The initial processing (removal from envelopes and verification) occurred when the observers were there. Then the “cutters” left, and even though the observers and media weren’t told to leave or “kicked out” (despite your claim), they followed the cutters out. The ballots were in ballot containers, and they were taken out later to be scanned. The observers and media could have reentered, but they didn’t.

          That “observers and the media leave the room” does not mean they were **told to leave**. They made a mistake. That’s on the observers and media, not on the election workers.

          “election officials remove 4 suitcases and boxes that were hidden under the table”

          They weren’t “hidden.” They were in ballot containers, not in suitcases or boxes, and they were in plain sight under the tables, put there after the cutters did the initial processing (removal of the envelopes and verification), waiting for the second half of the process (scanning) to occur.

          “Are you going to trust those who are in the tank for Biden, or your own lying eyes?”

          I’m going to trust Republican Gabriel Sterling, the Voting System Implementation Manager for GA, who says that the GA Secretary of State investigators watched the full videotape and confirmed that nothing was amiss. RME that you think those Republicans are all “in the tank for Biden.” They’re just doing their jobs in a non-partisan manner, obeying the law. They’re not conspiracy theorists buying into dishonest descriptions like the one you posted.

          1. “This looks like election fraud on a mass scale.

            Fulton officials throw everyone out of the room and start counting ballots in secret.

            For 2 hours.

            3,000 ballots per hour per machine.

            Multiple machines.

            The margin in Georgia is 12,000.

            You do the math, @GaSecofState.”

            — Rep. Jody Hice (@CongressmanHice) December 3, 2020

            1. Hice’s statement that “Fulton officials throw everyone out of the room and start counting ballots in secret” has already been shown to be false.

              1. Once the observers leave the counting should stop. Anything else colors the whole operation with doubt and, given the statistics, almost certain fraud.

              2. Actually, the signed affidavits (by those who were present in the room) show that Hice’s statement is true.

                However, the *reason* they left speaks to intent, and thus is secondary. The primary issue is that the observers were not in the room. And it is a violation of Georgia law for ballot counting to take place when there are no observers present.

                1. No, Sam, the fact that someone claims something in an affidavit doesn’t make it true. People sometimes believe things that are false and write them in their affidavits. (People also sometimes purposefully lie to the court, but I’ll assume that these were mistakes rathe than lies.)

                  If you look at both the confirming evidence *and* the disconfirming evidence, you’ll see that the disconfirming evidence shows the statements in the affidavit to be false and Hice’s statement to be false.

                  “it is a violation of Georgia law for ballot counting to take place when there are no observers present.”

                  Please link to the law you’re referring to, so we can see what it actually says. The story I linked to earlier said “Georgia law allows observers, but does not require them to be there for ballots to be counted, she [the chief investigator for the Secretary of State] said. … Section § 21-2-408 of the Code Of Georgia, which addresses poll watchers, explains that political bodies and parties are ‘entitled’ to have official poll watchers. The secretary of state’s chief counsel told Lead Stories it was not a requirement that observers be present for counting to continue — only that it is their right to be there is they choose.” I have no reason to assume that you’re correct.

                  Here’s the law cited: https://law.justia.com/codes/georgia/2010/title-21/chapter-2/article-11/part-1/21-2-408/
                  If that’s what you’re referring to, you’re wrong.

                  If you have valid evidence, not just your personal claims, you can change my mind. What’s your actual evidence?
                  Is there anything that can change *your* mind? If so, what would do it?

          2. “I’m going to trust . . .”

            . . . others — those who satisfy my desires.

            We already know that.

            Some of us prefer to trust our own eyes (and our capacity for rational judgment).

            1. Sam, it’s dishonest for you take what I actually said — “I’m going to trust Republican Gabriel Sterling, the Voting System Implementation Manager for GA, who says that the GA Secretary of State investigators watched the full videotape and confirmed that nothing was amiss” — and pretend that it’s the same as “‘I’m going to trust . . .’ . . . others — those who satisfy my desires.”

              Don’t lie about what I’m arguing.

              You say “Some of us prefer to trust our own eyes (and our capacity for rational judgment).”

              Did you eyes watch the entire videotape, or did your eyes only watch brief excerpts?
              What would your rational judgment tell you about your ability to accurately interpret excerpts without watching the entire thing?

              1. “What would your rational judgment tell you . . .”

                It tells me to reject the skeptic’s premise: If you don’t know everything, you don’t know anything.

                It’s an ages-old fallacy to assert that omniscience is the standard of knowledge.

                1. I’m not “assert[ing] that omniscience is the standard of knowledge.”

                  I’m pointing out that (1) the full tapes exist, (2) you haven’t watched them, (3) investigators a the Secretary of States office **have** watched them and concluded that there was nothing wrong. So it’s irrational for you to pretend that watching excerpts will lead you to a correct conclusion, when those who watched the entire tapes — and have a legal responsibility for making sure that the law was followed — disagree with you.

                  You want to believe that something illegal occurred. Is there anything that can convince you that you’re wrong? If not, then you’re not basing your conclusions on “rational judgment” (your phrase).

                  1. If there was corruption of the voting procedures then some in government either had a hand in it or kept a blind eye.

                    Commit forgets that the one who reviewed the tapes was the one supposedly on watch when the “crimes” were committed. Nothing Commit says can be trusted.

    1. Judge Reggie Walton is already saying Judge Sullivan might have a workaround if the pardon is “too broad”.

      CTHD implied last summer that Sullivan would act soon. That hasn’t happened. I said I thought he would find ways to delay. He did.

      No trust in the black-robed bullies.

      1. Judge Walton said Sullivan could find that “the wording of the pardon is too broad, in that it provides protections beyond the date of the pardon.” You object to that?

        1. Of course, he’s free to draw his own conclusion, but he can’t do or say anything about it in his official capacity.

            1. And I’m right.

              Why are you here if you’re not a lawyer or even a layman who pays attention to what the issues are?

  7. If Turley sincerely wants to compare the Mueller & Durham investigations, let’s review. The Mueller investigation extensively documented that the Trump campaign welcomed & expected to benefit from Russian interference in the 2016 election, which included illegally hacking & leaking confidential DNC emails in order to hurt Hillary Clinton’s campaign. Eight Trump campaign associates were indicted. Seven were convicted & sentenced.

    Turley takes special notice of ex-FBI lawyer Clinesmith pleading guilty to falsifying documents as a result of the Durham investigation. Roger Stone was found guilty of multiple perjury charges & obstruction of a Congressional investigation into Russian interference in the 2016 election. Turley hasn’t yet explained why he’s presumably far more concerned with the conviction of Clinesmith than the convictions & sentencing of seven Trump campaign associates.

    Turley insists the Durham investigation might be troubling for Biden & Democrats but he’s presumably okay with Trump responding to the Mueller investigation convictions by pardoning his longtime friend Stone & calling the Mueller investigation a witch hunt. Turley’s apples-to-apples comparison between the 2 investigations needs a little more touchup work.

    1. The Mueller investigation extensively documented that the Trump campaign welcomed & expected to benefit from Russian interference

      I guess your handlers at Correct-the-Record told you to just brazen it out.

  8. Trump administration spokesman Turley omits the fact that the SC law requires a person not in the current government, which of course Durham is, leaves that door wide open as a basis for his firing by the new AG.

    He also omits this, from the AP:

    “…The current investigation, a criminal probe, had begun very broadly but has since “narrowed considerably” and now “really is focused on the activities of the Crossfire Hurricane investigation within the FBI,” Barr said. ….

    A senior Justice Department official told the AP that although the order details that it is “including but not limited to Crossfire Hurricane and the investigation of Special Counsel Robert S. Mueller III,” the Durham probe has not expanded.

    The official said that line specifically relates to FBI personnel who worked on the Russia investigation before the May 2017 appointment of Mueller, a critical area of scrutiny for the Justice Department inspector general, which identified a series of errors and omissions in surveillance applications targeting former Trump campaign aide Carter Page.

    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….”

    https://apnews.com/article/election-2020-donald-trump-robert-mueller-statutes-elections-ae0275b4eb23981c1e6fbf9fc49c3239

    Durham has been at this for almost as long as the Mueller team, and has come up with one case involving an admitted violation by a lower level attorney who was exposed the IG Horowitz report of a year ago.

    No doubt Turley is looking for some good news as his regime is collapsing, but this is pretty thin gruel.

    1. According to Barr’s notification letter to congress, the appointment was made pursuant to 28 C.F.R. § 600.4-600.10, which does not preclude Durham’s appointment.

      1. No,the appointment wasn’t made pursuant to 28 C.F.R. § 600.4-600.10. It was made pursuant to 28 U.S.C § 509, § 510, and § 515. See the letter itself: https://int.nyt.com/data/documenttools/durham-special-counsel/7ff8599351b63336/full.pdf

        “28 C.F.R. 600.4 to 600.10 are applicable to the Special Counsel,” but that wasn’t the basis for the appointment

        For a better analysis:
        https://www.lawfareblog.com/statutory-authority-barrs-appointment-durham-special-counsel

        1. Your link is to the *order* appointing the Special Counsel. The *notification letter* to Congress cites 28 C.F.R. § 600.4-600.10.

          Granted, the analysis linked is much better than one sentence referring to the notification letter, which was undoubtedly dumbed down for Senate/House leaders and for the sake of brevity.

          1. The NYT link includes both the letter to Congress (p. 1 of the pdf) and Barr’s order (pp. 2 and 3). Both docs cite 28 C.F.R. § 600.4-600.10, but the order appointing Durham says “by virtue of the authority vested in the Attorney General, including 28 U.S.C. 509, 510, and 515, …, I hereby order …” The appointment was made pursuant to 28 U.S.C § 509, § 510, and § 515, not 28 C.F.R. § 600.4-600.10.

            1. That’s not correct CTHD. Both are cited and 600.4-10 first with 509 as the excuse for not fully complying. If 509 -515 were the basis of the appointment there was no need for citing 600.4-10.

              1. Joe, I’m not sure that I understand what you meant by “Both are cited and 600.4-10 first with 509 as the excuse for not fully complying.” Both what are cited? both are cited towards what ends?

                The question was what law Barr used to appoint Durham a special counsel. The appointment letter said that he did it “by virtue of the authority vested in the Attorney General, including 28 U.S.C. 509, 510, and 515.”

                “If 509 -515 were the basis of the appointment there was no need for citing 600.4-10.”

                He wasn’t citing the latter as a basis for the appointment. He only said “28 C.F.R. §§ 600.4 to 600.10 are applicable to the Special Counsel.” He doesn’t say that he’s ordering it by virtue of §§ 600.4 to 600.10, only that they apply as well. You can also see the difference in the placement of the references to each part of the code: 28 U.S.C. 509, 510, and 515 is in the introductory paragraph, but 28 C.F.R. 600.4-10 is paragraph (d) of the (a)-(f) paragraphs that spell out the order in more detail; it’s comparable to the other (a)-(f) paragraphs.

    2. Maybe this is an intentionally flawed appointment by Barr who will deliver it like a gift to the Deep state?

      So far with only the one indictment, it’s been a whitewash for the DOJ and FBI

  9. The Special Counsel shall be selected from outside the United States Government 28USC 600.3

    Durham is not from outside the US government.

    1. According to Barr’s letter to congressional leaders, the appointment was made pursuant to 28 C.F.R. § 600.4-600.10.

      1. Yes, and? Can you quote us the appropriate text?

        The Volohk Conspiracy implies it is that maybe Durham stepped down from the DOJ before this appointment but also notes that as recently as Nov 24 – more than a month after his secret appointment as SC – his name was on press releases from his district.

        “Has Durham signed any indictments, or other criminal proceeding documents over the past month? Certainly, a defendant could challenge this dual-office holding. As of November 24, his office was issuing a press release with his name on it.”

        Hey, why would a law professor like Turley have reason to question or expound on the apparent shakiness of the appointment. No Fox News appearances would come from that.

        1. Joe, see the link to the Lawfare commentary and Barr’s appointment letter in my 11:43a.m. comment. Durham wasn’t appointed under the Special Counsel regs, so the requirement that he not be a government employee doesn’t apply.

          1. I disagree CTHD. It was made under the SC law, but he justifies his violating it by the powers he assumes he has under the other statue. His letter – thanks for that – makes that all clear.

  10. The one thing the democrats are really, really good at is saying something one day, in front of cameras, and at some point later convincingly say the opposite as if the original pronouncement was never made, then acting amazed and ignore it when someone call them on it. Is that a special political gene or do they just practice it over and over again? They have always been better at messaging, bullying, and cheating. I am an Independent and often wonder how any normal person with a modicum of common sense can belong to the democrat party.

    1. Seriously.
      Remember when the Dems filibustered a Supreme court nominee for over a year because there was election coming up? Then just a couple years later, they appointed a justice AFTER the sitting President had lost the election?
      Oh, wait…no, sorry, that was the ‘Pubs that did that.

      Maybe both major parties have a tendency towards a bit of hypocrisy.

  11. The more I see the legal/political system operate the more I think it’s a bunch of rich guys taking care of other rich guys. The middle class the people that fight wars, die, and are maimed pay the price for the rich guys. The first thing to exit a court room is justice. It can be said is I don’t understand the law and and I don’t. However I/we have very little to say about how the laws are written. Again the privileged class chooses the language of said laws and the academics make sure we have a difficult time decoding what is said. Us like me (joined the service at 17 because I thought I should do something for my country) come to realize it was a wasted effort. I found out a wasn’t doing anything for my country The rich guys and academia was using me and my buddies to make their life more comfortable. We were dumb asses.

    1. you got it right john, billionaires are the enemy

      not the rich per se; rather, the very top tier

      700 of them need to have all their mischief neutralized, stat!

      Saloth Sar

  12. “The list of the names of people falling within that mandate is a who’s who of Washington from Hillary Clinton to James Comey to . . . yes . . . Joe Biden.”

    And Trump.

    Turley says “Presumably, the conflict is not in the current administration since it would have required an earlier appointment. The conflict would seem to be found in the upcoming Biden administration,” but Barr designated Durham as a special counsel in October, before he knew who would be elected. Personally, I doubt that Barr would designate Durham to be a special counsel if the conflict were in the Trump Admin., but the timing certainly doesn’t rule it out.

    Pelosi said “I have said, and I’ll say again, no thank you, Mr. Attorney General, we do not need your interpretation, show us the report and we can draw our own conclusions.” in March of 2019, before the redacted Mueller Report was released to Congress or the public. As we all know, Barr’s summary of the report, released before the report itself, misstated the SCO’s findings.

    Nadler’s statement was also from March, 2019, before the report was released by the DOJ, and his full statement was “Congress requires the full and complete Mueller report, without redactions, as well as access to the underlying evidence” (emphasis added). It was not a demand for an unredacted version to be made public. It is misleading (but unfortunately not surprising) that Turley says “virtually every Democratic leader demanded that the report be released with no or few redactions” without making clear that they were talking about the release to Congress, not the release to the public.

    He often omits relevant info. For example, “it was disclosed that President Obama was briefed on an American intelligence report that Clinton had ordered the creation of a Russian collusion story” omits that Obama was briefed on that likely being more Russian disinformation: https://www.justsecurity.org/72702/early-edition-october-7-2020/

    Biden should nominate an ethical A.G. and then leave the DOJ to do its work.

  13. Everything James Carville and his ilk said about Ken Starr…just substitute John Durham’s name. Bet on it.

      1. Olly, you’ve been telling us this for at least a year and …………

        I think he’s more like the rubber ducky in my tub than a torpedo

        1. Well then Biden and the Democrats won’t have any problems with Durham as SC completing his investigation and making his report public.

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