How should the next attorney general, whoever he or she turns out to be, handle the John Durham probe?
The more I study what Attorney General Bill Barr did in his secret October order naming the Connecticut U.S. attorney as a special counsel, the more devilishly clever it seems—and the bigger the pickle it creates for Barr’s successor. This, presumably, is Barr’s intention. Untangling this knot is going to take no small amount of diplomacy, lawyering and finesse. And a false move in any of several directions could create a real mess.
Let’s unpack the situation and then consider how a new attorney general might responsibly address it.
The Durham investigation—which focuses on the origins and conduct of the Russia investigation—began not as a criminal investigation but as an administrative review, ordered by Barr, of the Russia probe. As such, it has reportedly looked at everything from the integrity of the Intelligence Community Assessment (ICA) of Russian interference in the 2016 election to the handling of the Carter Page FISA application. At some point, however, the Durham probe became, at least in part, a criminal one, and it has prosecuted one person—former FBI lawyer Kevin Clinesmith—for falsifying an email in connection with the Carter Page matter.
Beyond that one case, however, it has never been clear what exactly the Durham investigation is looking at. Many of the key figures in the Russia probe have never even been contacted. And the exhaustive inspector general’s report on the Crossfire Hurricane probe does not give rise, beyond Clinesmith’s case, to implications of criminal conduct. Durham has, in other words, spent 18 months rooting around in an unspecified combination of criminal and non-criminal matters: second-guessing intelligence and law enforcement conduct, following up criminally on referrals from the inspector general, running down Barr’s suspicions about how the Russia investigation really began, and exciting expectations on the right that the Russia scandal is about to finally be unveiled as a hoax.
It is against this backdrop that Barr back in October secretly transformed Durham from a mere U.S. attorney into, in addition, a special counsel. [Continue reading…]