Attorney General William Barr told The Associated Press on Tuesday that he has appointed Connecticut U.S. Attorney John Durham as a special counsel under the same regulation that covered Robert Mueller, the special counsel who investigated alleged Trump campaign collusion with Russia.
The attorney general indicated that he made the appointment in October. Since Barr gave him the assignment in 2019, Durham has been investigating the politicized origins of the Trump-Russia investigation launched by the Obama administration during the 2016 presidential campaign.
Barr told the AP: “I decided the best thing to do would be to appoint them under the same regulation that covered Bob Mueller, to provide Durham and his team some assurance that they’d be able to complete their work regardless of the outcome of the election.”
Nevertheless, it does not appear that Durham, as a Justice Department lawyer, qualifies for a formal special counsel appointment. We should hasten to add that the special counsel regulations explicitly provide that any failure by the Justice Department to comply with their strict terms creates no enforceable rights or objections for any third party. (See Sec. 600.10 of the special counsel regulations, in Title 28 of the Code of Federal Regulations).
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But, of course, neither would a special counsel appointment by Barr be in any way binding on the attorney general in the incoming Joe Biden administration.
To be sure, it makes perfect sense that Barr would want to insulate Durham’s work from the politics of the 2020 election and attempt, to the extent possible, to assure the conclusion of the probe when the Biden administration takes over the Justice Department in January.
As I will discuss shortly, moreover, it would be in President-elect Joe Biden’s interest to have Durham complete the investigation. But unless Durham has left the Justice Department — and no reporting has suggested such a thing — he does not appear to fit the regulatory criteria for a special counsel.
Under Section 600.3 of the regulations, “The Special Counsel shall be selected from outside the United States Government.” At the time Mueller was appointed, for example, he was a private lawyer no longer in government service.
The requirement that the appointee be from outside the government is necessary because of the conditions that trigger special counsel appointments. Under Section 600.1, such an outside prosecutor should be named only when (1) a criminal investigation in warranted, and (2) that investigation would present a conflict of interest for the Justice Department — such that it would create serious ethical problems for the case to be investigated in the normal course by a district U.S. attorney’s office or a litigating unit of the Justice Department.