It's a good thing it takes the tough decision away from Biden haha
Attorney General William Barr has formally named Connecticut U.S. Attorney John Durham as a "special counsel." If we see the designation as political, rather than legal, we will understand it better. More importantly, we will grasp that the attorney general protected an investigation into Obama/Biden-era misconduct by making it easier for the incoming Biden administration to live with it.
As a legal matter, the special counsel appointment of Durham is weightless. In his Associated Press
interview, Barr indicated that he was making the formal designation to give Durham the same regulatory protection that Robert Mueller enjoyed as the special counsel investigating the Trump-Russia "collusion" farce. That protection is more apparent than real.
As a factual matter, Mueller qualified for the protection provided by formal special counsel status because he was "selected from outside the United States government," as the regulations require (specifically,
Section 600.3). This requirement is common sense: Assuming adequate basis for a criminal investigation, a special counsel is arguably necessary only when a profound conflict of interest would render it impossible for the Department of Justice (DOJ) to conduct such a probe in the normal course.
This is almost never the case, since if an individual DOJ prosecutor has a conflict (e.g., a former client caught up in an investigation), the DOJ can just assign a non-conflicted prosecutor. But the classic conflict situation warranting a special counsel appointment is when an investigation centers on the president or high administration officials, for then the Justice Department is in the position of investigating its superiors and the administration of which it is a part - that's when you arguably need a lawyer from outside.
Durham, however, is not from outside. He is a top federal prosecutor. He does not meet the "outside the government" qualification. To this point, moreover, his investigation has not presented a conflict situation (i.e., this was not a matter of the Trump administration investigating itself).
Yet, these factual departures from the usual special counsel scenario can be put aside easily. Under another regulation (
Section 600.10), the Justice Department's failure to comply with the letter of the special counsel regs is not actionable - no one has a legal right to object. The attorney general has broad discretion to formulate arrangements in the interests of justice that safeguard investigations from political interference....
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