Neal K. Katyal writes:

Attorney General William Barr’s decision on Tuesday to name John Durham, the U.S. attorney for the District of Connecticut appointed by President Trump, as special counsel to investigate matters surrounding the 2016 election violates the rules for special counsels as well as fundamental democratic principles.

There may be reasons the inquiry by Mr. Durham — an investigation that began in 2019 into the Trump-Russia inquiry — should continue, but there is absolutely no reason to permit an outgoing attorney general to try to install his preferred personnel at the investigation’s helm in the new administration. And it is entirely appropriate for President-elect Joe Biden to appoint all the prosecutors in his new administration, just as his predecessors have done.

The special counsel regulations, which I drafted in 1999 as a Justice Department staff member, were designed with the idea that some investigations require a person from outside the department to assure the public of sufficient independence. We had in mind circumstances in which, for example, a president was alleged to have engaged in wrongdoing and having his attorney general conduct the investigation could cause a problem with impartiality. That is why they expressly require someone “outside the United States government” to serve as special counsel. Doing so helps reassure the public of an independent investigation. [Continue reading…]