Neal Katyal: I Wrote the Special Counsel Rules. Barr Has Abused Them.

[Eugene]

Source: New York Times

I Wrote the Special Counsel Rules. Barr Has Abused Them.

There is no reason for the outgoing attorney general to appoint his preferred prosecutor for the continuing Trump-Russia inquiry.

By Neal K. Katyal
Mr. Katyal is a law professor at Georgetown.

Dec. 3, 2020

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.

There are other models; sometimes a person from inside the department investigates, as the Justice Department did in 2003 with the Valerie Plame scandal. But none of these models, special counsel or otherwise, was designed to let an attorney general “burrow” his handpicked prosecutor into a new administration. And no internal Justice Department regulation can prevent a new president from dismissing a prosecutor, including Mr. Durham.

-snip-

Read more: https://www.nytimes.com/2020/12/03/opinion/bill-barr-john-durham-prosecutor.html

[wnylib]

1. That last sentence in the OP is interesting

for a couple reasons.

First, if true, it means that Biden does not have to be saddled with a Trump appointee investigating actions taken in the Obama/Biden administration. I'm sure that Trump considers Barr's appointment of Durham to be payback for the Mueller investigation.

But Mueller was appointed by a member of the Trump administration. Biden's AG should be able to do the same.

But the appointment of Durham by Barr is intended to make Biden look suspicious if Biden's AG dismisses Durham and appoints someone else.

Knowing that he has lost all his bids to hold onto office, Trump is using the time between the election and inauguration to sabotage Biden before he gets into office. This is not just denial about the election outcome, or refusal to cooperate. This is deliberate, malicious, active sabotage and disruption of an incoming administration.

[cstanleytech]

2. Biden should consider dismissing and bringing in Mueller himself as Mueller was not at fault for

Barr choosing to abuse his power to help Trump by interfering with the report in order to downplay it.

[wnylib]

3. Mueller? Doubt he'd be interested.

Does there have to be anyone? There's nothing to investigate. Just Trump's unsubstantiated claim that Obama used US intel agencies to investigate Trump's Russian ties in 2016 as a partisan political move.

Maybe getting it all in the open, though, would be a good idea. Just not with a Trump ally as the investigator/prosecutor. Should be someone appointed by Biden's AG. Trump might rue the day he decided this should be investigated if a competent, impartial investigator takes charge and shows how and why Trump and his staff came under concerned attention by US intel agencies during the 2016 campaign.