President Donald Trump falsely labeled Special Counsel Robert Mueller’s investigation of him a “witch hunt.” It wasn’t.
If you want to see what a real political witch hunt looks like, just look to lame duck Attorney General slash personal fixer Bill Barr’s appointment this week of a special counsel meant to probe Joe Biden’s administration before it even begins.
While Barr’s order appointing Connecticut U.S. Attorney John Durham as special counsel is focused on any crimes connected to the opening of the FBI’s investigation into Donald Trump’s 2016 campaign, you’re kidding yourself if you think it necessarily stops here. As a reminder, special prosecutor Kenneth Starr was appointed in August 1994 to investigate Clinton’s real estate dealings (“Whitewater”), well over a year before Clinton even met then White House intern Monica Lewinsky and we saw how that worked out.
Anything that Barr does should be viewed through the prism of politics, rather than the law. This is the guy who refused in September to criticize Donald Trump for repeatedly calling on his supporters to vote twice in the run up to the 2020 election and furthered Trump’s baseless claims that mail-in ballots would lead to fraud.
And Barr doesn’t seem to have any good-faith basis for making Durham a special counsel. Barr first tapped Durham, a career federal prosecutor also serving as the District of Connecticut U.S. Attorney, to conduct this investigation last May. What does Durham have to show for it? One low-level F.B.I. lawyer pleading guilty in August to doctoring an email in connection with an application for a wiretap. That’s it.
In contrast, 18 months into his investigation Robert Mueller had already convicted Trump’s former campaign manager Paul Manafort of various crimes, and charged and secured guilty pleas from Michael Cohen, Michael Flynn, George Papadopoulos and Rick Gates as well as indicting 16 Russian nationals for interfering in the 2016 election.
So why is Barr now making Durham a special counsel, potentially allowing him to continue his probe throughout Biden’s term?
Just look at the facts that led up to Barr’s Oct. 19, 2020 order appointing Durham. In the weeks before the order was signed, Trump was in the media slamming Barr for not indicting his political enemies before the election, calling it a “disgrace” and threatening that “I’m going to have to get involved” if Barr didn’t start doing something to justify all those “lock ‘em up” chants at his rallies. Just five days before Barr signed the order, Trump again publicly slammed Barr for not announcing indictments before the election.
On the same day that Barr signed the Oct. 19 order, 11 GOP members of Congress—all of them big-time Trump backers—sent a letter to the AG urging him to appoint a special counsel to investigate Joe Biden and “any legal or ethical issues that might be uncovered from the former vice president’s 47 years in public office." There was no subtlety there. They told Barr to appoint a special counsel to go after Biden.
And, as Barr’s order makes clear, he did.
First, the order authorizes Durham to investigate “whether any federal official employee, or any other person…violated the law” in connection with the investigation of Trump’s 2016 campaign that began under the Obama administration. That means Durham could plausibly seek to depose Biden regarding what he knew about the origins of the investigation. If Biden objects, it makes him look like he’s covering up something. If he agrees, we have a sitting president testifying under oath—who know where that leads?
Secondly—and more alarming—Barr’s order expressly cites the federal regulation that allows Durham to expand his work “to investigate new matters that come to light in the course of his or her investigation” --conditioned upon the approval of the Attorney General. That means if Trump’s buddies send Durham information on any potential wrongdoing by Biden—no matter how far-fetched—Durham could ask Biden’s AG for permission to expand his investigation into this new subject matter. If Biden’s AG says “no,” the political downside for Biden will be immense as Fox News, Republicans in Congress, and others shout that Biden’s AG is engaged in a cover-up. And if the AG approves the investigation, that signals the start of a new investigation that could plague Biden for years.
While Biden’s AG can fire Durham, the controlling federal regulation requires a “good cause” basis to do so, such as “misconduct.” But obviously if Biden’s AG dumped Durham, it would come with a political price—which is precisely why Barr formalized Durham as a special counsel pursuant to federal law.
Biden and the Democrats need to view this investigation for what it appears to be: the first step in the GOP’s 2024 campaign to hobble President Biden even before he takes office and make him into a one-term president. Democrats need to start calling it out now.