Leaving a Land Mine to Navigate Around

For John, BLUF:  Attorney General william Barr is a very smart lawyer and it seems he has left a problem for a possible incoming Biden Administration.  A Special Counsel, not easily fired.  Nothing to see here; just move along.

---

Making John Durham a special counsel will cause problems for Biden

Here is the sub-headline:

Now Democrats' Trump administration arguments will come back to haunt them.

From USA Today, by Professor Jonathan Turley, 2 December 2020.

Here is the lede plus eight:

Attorney General Bill Barr made two important evidentiary decisions yesterday that delivered body blows to both President Donald Trump and President-elect Joe Biden.&Nbsp; First, Barr declared that the Justice Department has not found evidence of systemic fraud in the election.&Nbsp; 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.

Yes, this could be a problem for a Biden Administration.  It could also be a problem for Democrats in Congress, and perhaps for the Main Stream Media.

I need to curb my enthusiasim for this future show, before I fall into sin.

Hat tip to Ann Althouse.

Regards  —  Cliff