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 lethal that it would make Machiavelli green with envy.
Over the last few months, Democrats appeared to be laying the foundation to ditch the Durham investigation as well as an investigation into the Hunter Biden influence-peddling scheme. House Intelligence Committee Chairman Adam Schiff (D-CA) denounced the Durham investigation as “tainted” and “political.” On the campaign trail, Biden himself dismissed the “investigation of the investigators.” Over in the Senate, Democrats joined in the mantra with Sen. Amy Klobuchar (D-MN), and others denouncing the continued investigations.
By converting Durham into a special counsel, Barr makes it harder to fire him. It is not uncommon for presidents to replace all U.S. Attorneys with political allies. Durham however is now a Special Counsel and his replacement or the termination of his investigation would be viewed potentially perceived to be “obstruction of justice.” When Trump even suggested such a course of action, he was accused of obstruction by a host of Democratic politicians and legal experts.
The appointment also makes a public report more likely. While Durham already nabbed a conviction, prosecutors do not ordinarily prepare reports. Special counsels do. And, with the Mueller report, virtually every Democratic leader demanded that the report be released with no or few redactions. The Trump administration waived most executive privileges and released most of the report except for grand jury information. Even that was not enough for figures like Speaker Nancy Pelosi: “I have said, and I’ll say again, no thank you, Mr. Attorney General, we do not need your interpretation, show us the report and we can draw our own conclusions.” House Judiciary Committee Chair Jerry Nadler demanded the release of the “full and complete Mueller report, without redactions, as well as access to the underlying evidence.” The Durham appointment will now force Democrats to answer why they do not support the same public release of the report so that voters can “draw our own conclusions.”
The move also complicates the nomination of Sally Yates, who is widely viewed as a front-runner for the position of Attorney General. Yates would be placed in an even more precarious position than Jeff Sessions who recused himself to avoid even the appearance of a conflict of interest at the start of the Trump administration. Yates has a clear and obvious conflict. She played a role in the earlier Russian investigation. That investigation was based in part on the “Steele dossier,” a report by a former British spy that has been shown to be unreliable and flawed. American intelligence warned that Steele’s main source was a likely Russian agent and the dossier may have been used for Russian disinformation. While the Clinton campaign repeatedly denied funding the dossier during the election, reporters later showed that it lied after finding a money trail through Clinton’s campaign legal counsel. Most recently, it was disclosed that President Obama was briefed on an American intelligence report that Clinton had ordered the creation of a Russian collusion story to take the pressure off her own scandal involving her private server. Yates testified recently that she has no recollection of these warnings and does not recall knowing about the funding of the Steele dossier.
Yates would have no choice but to recuse herself in dealing with the Durham investigation. However, if the Biden administration used her designated deputy to terminate the investigation or the report, the Biden administration will have done what Trump never actually did. All of those columns and speeches Democrats gave to be the language of the obstruction statute would come back to haunt the Democrats.
It is, to use the words of fired Special Agent Peter Strzok, the ultimate “insurance policy” that Durham will be allowed to complete and release the facts of his investigation. Worse yet, the Democrats themselves made the case for him to do just that.
