Outgoing Attorney General William Barr’s decision to appoint a special counsel to investigate the handling of the Russia probe ensures his successor won’t have an easy transition.
The move, which Barr detailed to The Associated Press on Tuesday, could lead to heated confirmation hearings for Joe Biden’s nominee, who hasn’t been announced. Senate Republicans will likely use that forum to extract a pledge from the pick to commit to an independent investigation.
The pressure on the new attorney general is unlikely to ease once they take office. With the special counsel continuing to work during the early days of the Biden administration, it may be tough for the Justice Department’s new leadership to launch investigations of President Donald Trump and his associates without seeming to be swayed by political considerations.
Barr elevated U.S. Attorney John Durham to special counsel as Trump continues to propel his claims that the Russia investigation that shadowed his presidency was a “witch hunt.”
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But the maneuvering over the special counsel is especially significant because it saddles Democrats with an investigation that they’ve derided as tainted. Now there’s little the new administration can do about it.
“From a political perspective, the move is so elegantly lethal that it would make Machiavelli green with envy,” Jonathan Turley, a professor of public interest law at George Washington University, wrote in an op-ed for USA Today.
A special counsel can only be dismissed for cause. And as was the case during Robert Mueller’s Russia investigation, such probes can sometimes stray from their origins.
The Biden transition did not respond to a request for comment on the special counsel appointment.
But Barr’s decision could influence whom the president-elect puts forth as a nominee for attorney general. One leading candidate, Sally Yates, was already viewed skeptically by some Trump-aligned Republicans for her role in the early days of the Russia investigation. Her nomination could face even greater challenges because she’s connected to some of the work that Durham is examining.
As deputy attorney general, Yates signed off on the first two applications to the Foreign Intelligence Surveillance Court to monitor communications of ex-Trump campaign adviser Carter Page, a process that has been among the focuses of the Durham investigation.
A Justice Department inspector general report found significant flaws and omissions in the four applications to the court, though it also found no evidence that Yates or any other senior Justice Department officials were aware of the problems.
Some Democrats have privately expressed concerns – likely to deepen with Durham’s appointment as a special counsel – that nominating Yates would lead to a messy confirmation process that focuses on the Russia investigation, instead of focusing on reforms and shifting priorities at the Justice Department, people familiar with the matter have said. They spoke on condition of anonymity to discuss private conversations.
Others potentially in the mix for the role include Lisa Monaco, a former homeland security adviser and senior Justice Department official in the Obama administration, and outgoing Alabama Sen. Doug Jones, who famously prosecuted Ku Klux Klan members who bombed a Birmingham church in the 1960s.
The question for Biden, however, is how to balance top Cabinet picks as he attempts to fulfill his pledge for racial, ethnic and gender diversity. Many of Biden’s leading nominees so far have been white, which could work against Yates, Monaco and Jones.
Some Black Democrats are attempting to elevate former Massachusetts Gov. Deval Patrick, who is Black and led the Justice Department’s civil rights division under President Bill Clinton, in discussions about potential attorneys general.
Whoever emerges as the nominee will be pressed to demonstrate independence from the new White House after Biden campaigned on a pledge to depoliticize the Justice Department.
That could be tough, however, if the future attorney general faces calls for new probes into the Trump administration. Some investigations into Trump have been frozen because of the immunity he enjoys as president. Others swirling around members of his family and associates have been simmering for years.
On Tuesday, an unsealed court filing revealed an investigation into a potential plot to solicit political donations in exchange for the president using his pardon power.
Barr, for his part, insisted that he was trying to keep politics out of the Durham probe, explaining that is why he delayed announcing the special counsel appointment until a month after the election.
“With the election approaching, I decided the best thing to do would be to appoint them under the same regulation that covered Bob Muller, to provide Durham and his team some assurance that they’d be able to complete their work regardless of the outcome of the election,” Barr said in an interview with the AP on Tuesday.
“I wanted to have the team, both Durham and his team understand that they be able to finish their work,” Barr said.
Durham has already been a huge disappointment for Trump and his allies, and prompted a dispute with Barr over why things weren’t moving faster and why the investigation did not yield major prosecutions in the weeks before the election. The investigation wasn’t expected to result in many more criminal charges, and there has only been one so far — a former FBI lawyer who pleaded guilty to a single charge.
But the investigation is worth more politically than practically.
A nearly 500-page inspector general report chronicled in great detail the errors and omissions FBI agents made in a series of applications to surveil Page. Declassified documents released by congressional Republicans have raised additional questions while not undercutting the overarching legitimacy of the Russia probe. And the facts of the one criminal case Durham has brought so far, against an FBI lawyer who admitted altering an email, were already mostly laid out in the watchdog report.
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