Say what you will about outgoing President Donald Trump, but one thing he never did was fire former Special Counsel Robert Mueller. In fact, President Trump let Special Counsel Mueller finish his job investigating false allegations the President and his campaign had conspired with Russia to steal the 2016 election.
It was the Mueller report that ultimately exonerated Trump, with Mueller concluding in his 2019 report that, “[T]he investigation did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities,” and “the evidence does not establish that the President was involved in an underlying crime related to Russian election interference.”
Now, the question is whether incoming President Joe Biden will allow Special Counsel John Durham to finish his job in pursuing his own ongoing criminal investigation into the origins of the botched investigation into Trump and Russia.
According to the Oct. 19, 2020 order appointing Durham, former Attorney General William Barr wrote, “On May 13, 2019, I directed United States Attorney John Durham to conduct a preliminary review into certain matters related to the 2016 presidential election campaigns, and Mr. Durham’s review subsequently developed into a criminal investigation, which remains ongoing. Following consultation with Mr. Durham, I have determined that, in light of the extraordinary circumstances relating to these matters, the public interest warrants Mr. Durham continuing this investigation pursuant to the powers and independence afforded by the Special Counsel regulations. Accordingly, by virtue of the authority vested in the Attorney General, including 28 U.S.C. §§ 509, 510, and 515, in order to discharge my responsibility to provide supervision and management of the Department of Justice, and to ensure a full and thorough investigation of these matters…John Durham, United States Attorney for the District of Connecticut, is appointed to serve as Special Counsel for the Department of Justice.”
In addition, Barr set forth Durham’s broad jurisdiction: “The Special Counsel is authorized to investigate whether any federal official, employee, or any other person or entity violated the law in connection with the intelligence, counter-intelligence, or law-enforcement activities directed at the 2016 presidential campaigns, individuals associated with those campaigns, and individuals associated with the administration of President Donald J. Trump, including but not limited to Crossfire Hurricane and the investigation of Special Counsel Robert S. Mueller, Ill.”
Additionally, in his explanatory letter to the House and Senate Judiciary Committees, dated Dec. 1, Barr added, “Although I had expected Mr. Durham to complete his work by the summer of 2020, the COVID-19 pandemic, as well as additional information he uncovered, prevented him from doing so. In advance of the presidential election, I decided to appoint Mr. Durham as a Special Counsel to provide him and his team with the assurance that they could complete their work, without regard to the outcome of the election.”
Biden has very good reasons to steer clear of the Durham probe.
For starters, Barr has already advertised that Durham is deep into an ongoing criminal investigation. Laws were broken. That much we know.
Biden certainly could fire Durham under his Article II appointment powers. But if Durham were to be fired and the investigation was terminated prematurely without any new charges or a final report, it would give the appearance of a cover-up.
And it would come at a time when there are still more revelations to come as President Trump at the last minute on Jan. 19 has declassified a trove of documents related to the original investigation by the FBI. From the memorandum:
“At my request, on December 30, 2020, the Department of Justice provided the White House with a binder of materials related to the Federal Bureau of Investigation’s Crossfire Hurricane investigation. Portions of the documents in the binder have remained classified and have not been released to the Congress or the public. I requested the documents so that a declassification review could be performed and so I could determine to what extent materials in the binder should be released in unclassified form. I determined that the materials in that binder should be declassified to the maximum extent possible. In response, and as part of the iterative process of the declassification review, under a cover letter dated January 17, 2021, the Federal Bureau of Investigation noted its continuing objection to any further declassification of the materials in the binder and also, on the basis of a review that included Intelligence Community equities, identified the passages that it believed it was most crucial to keep from public disclosure. I have determined to accept the redactions proposed for continued classification by the FBI in that January 17 submission.”
The order added, “I hereby declassify the remaining materials in the binder. This is my final determination under the declassification review and I have directed the Attorney General to implement the redactions proposed in the FBI’s January 17 submission and return to the White House an appropriately redacted copy.”
Meaning, whether Durham completes his investigation or is stopped by the Biden White House, there is more information to come on the origins of the investigation into Trump that falsely alleged he was a Russian agent, using the dossier of former British spy Christopher Steele that was paid for by the Democratic National Committee and the Hillary Clinton campaign in 2016 to distract from Clinton’s own private email server containing classified information scandal.
No word yet on whether that will include new information on the Jan. 5, 2017 Oval Office meeting with former President Barack Obama, then-Vice President Biden, former FBI Director James Comey and former Deputy Attorney General Sally Yates that a now fully declassified letter former National Security Advisor Susan Rice wrote to herself on Jan. 20, 2017, memorializing the meeting, showing the investigation was ordered by Obama to be carried over into the Trump administration.
Per Rice’s summary “On January 5, following a briefing by IC leadership on Russian hacking during the 2016 Presidential election, President Obama had a brief follow-on conversation with FBI Director Jim Comey and Deputy Attorney General Sally Yates in the Oval Office. Vice President Biden and I were also present.”
This was the Russian interference into the 2016 election briefing given a day before then-Director of National Intelligence James Clapper issued the joint intelligence assessment on the same. However, the version that was given to former President Barack Obama and then-President-Elect Trump on Jan. 5, 2017 included some of the false allegations leveled by the Steele dossier that Trump was a Russian agent.
This was the same dossier that led to the Foreign Intelligence Surveillance Act (FISA) warrants aimed at former Trump campaign advisor Carter Page beginning in Oct. 2016, his contacts in the campaign, and his contact’s contacts in the campaign and into Trump’s inner circle.
There is also no word yet on what direction Durham has taken in his investigation, although it has already been said that neither Biden nor Obama are subjects of the investigation.
In May 2020, when Barr was tasking Durham on the investigation, he stated at a press conference, “As to President Obama and Vice President Biden, whatever their level of involvement, based on the information I have today, I don’t expect Mr. Durham’s work will lead to a criminal investigation of either man.”
As President, Biden has a duty to ensure that he and his Justice Department do not repeat the mistakes of the past. Allowing Durham to finish his investigation, and then working with Congress to reform FISA in a bipartisan manner so this never happens again could help restore public confidence in what is perceived to be a two-tiered justice system.
When the shoe was on the other foot, an entire section of the Mueller report examined potential obstruction of justice by Trump for discussing potentially firing Mueller with then-White House Counsel Don McGahn. It ultimately ducked on the question of constitutional authority of firing Mueller and instead focused on a disagreement between President Trump and McGahn over whether the President had ordered McGahn to fire Mueller, and whether Trump’s alleged direction of McGahn to change his story had constituted obstruction.
Whatever really happened, Mueller was not fired. Trump had every reason after the firing of former FBI Director James Comey to shut down Mueller too for continuing an investigation that had a false pretense and was tearing the country apart. But he didn’t.
And that is the standard by which Biden will be judged when it comes to Durham.
Robert Romano is the Vice President of Public Policy at Americans for Limited Government.
