Biden's attorney general could probably pretty easily revoke Durham's special counsel status

Peter Weber

Attorney General William Barr revealed Tuesday that he had secretly given U.S. Attorney John Durham special counsel status in October, explaining that the designation assured Durham and his team "that they could complete their work, without regard to the outcome of the election." The decision was news to President Trump, The New York Times reports. But Trump wasn't satisfied, Axios adds.

Trump and his allies are "piling extreme pressure" on Barr to release Durham's findings on the FBI's investigation of Trump and Russia, and they view Durham's special counsel designation "as a smokescreen to forestall the release of the so-called Durham report, which senior administration officials believe is already complete," Axios says. "Trump has been ranting about the delay behind the scenes and mused privately about replacing Barr with somebody who will expedite the process."

Democrats view Durham's criminal investigation as motivated entirely by politics and revenge, and Barr's move was widely seen as a way to ensure it will continue after President-elect Joe Biden takes office Jan. 20. Trump abruptly pushed out all U.S. attorneys appointed by his predecessor soon after he took office, but special counsels can only be removed by an attorney general under a narrow set of documented criteria. Barr used a work-around with Durham, though, and that would apparently make it much easier for Biden to end the investigation.

A Justice Department official told The Washington Examiner that "attorneys general have often appointed prosecutors to act as special investigators, either under the special counsel regulations or outside them," so Durham's appointment wasn't so unusual. But because Durham, the current U.S. attorney for Connecticut, "was not appointed pursuant to the special counsel regulation, it is possible the next attorney general could rescind Mr. Barr's directive that special counsel rules would apply to him, then end his inquiry without any finding of misconduct," the Times reports.

"I suppose the calculation is that there is a political cost" for doing so, Duke University law professor Samuel Buell told the Times. But Barr's move is an "odd" use of the special counsel provision.

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