Byron York’s Daily Memo: Special Counsel Durham

SPECIAL COUNSEL DURHAM. Attorney General William Barr did two things that made news on Tuesday. One, he told the Associated Press that the Justice Department has been looking into claims of election fraud, and “to date we have not seen fraud on a scale that could have effected a different outcome in the election.” Barr later pointed out that that does not mean no localized incidents of irregularities or fraud occurred, just that it doesn’t add up to changing the election result. It was a conclusion echoed by the Wall Street Journal editorial page, which wrote that, “We’re open to evidence of major fraud, but we haven’t seen claims that are credible…for Mr. Trump to win the Electoral College, he’d need to flip tens of thousands of votes in multiple states.” Barr said the Justice Department will keep looking, but the likelihood of finding huge, election-changing fraud appears to be around zero.

But Barr did something else Tuesday that could have long-term consequences. He revealed that he has made John Durham, the U.S. Attorney currently investigating the origins of the Trump-Russia investigation, a special counsel. Until now, Durham had been working simply on the assignment of the attorney general. But come January 20, President Joe Biden and his Democratic appointees will control the Justice Department. How eager will they be to continue an investigation that might well reveal misconduct by the Obama-Biden law enforcement and intelligence agencies?

Appointing Durham a special counsel will make it harder for Biden to get rid of him. “The best thing to do would be to appoint them under the same regulation that covered Bob Mueller,” Barr told the AP, “to provide Durham and his team some assurances that they’ll be able to complete their work regardless of the outcome of the election.” Although it was revealed Tuesday, Barr actually made the appointment on October 19, well before the election.

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Barr also told the AP that Durham’s investigation has narrowed. It began with a broad survey of false accusations that then-candidate Donald Trump has conspired or coordinated with Russia to fix the 2016 election. Now, he said, it “really is focused on the activities of the Crossfire Hurricane investigation within the FBI.”

Nevertheless, the letter establishing the Durham probe gives the new special counsel broad authorities. “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 campaign, individuals associated with those campaigns, and the 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, III.”

Of course, Biden can still fire Durham. The president has the authority to do so, which is entirely appropriate in our system. But doing it will now be more politically difficult. After all, many Democrats are on record supporting strong protections for special counsels facing possible political interference.

Remember the Mueller investigation? When rumors were flying that President Trump would fire the Trump-Russia special counsel, many Democrats, and some Republicans, on Capitol Hill wanted to pass a law that would make it nearly impossible to fire Mueller. After Barr’s announcement, The Federalist’s Mollie Hemingway re-tweeted many of them, and they would seemingly apply to Durham today just as much as they applied to Mueller then. Like this one, from top Democratic Sen. Dianne Feinstein in 2018:

One more important thing. The letter directs Durham to file a final report “in a form that will permit public dissemination.” Until now, it was not known whether Durham would write any report at all. Now, he will have to write one and submit it to the attorney general. After January 20, that will be Joe Biden’s attorney general. But the public knowledge that Durham has prepared a report, and that is was written “in a form that will permit public dissemination,” will make it hard for the Biden administration to suppress.

The bottom line: Judging by Twitter, a number of President Trump’s most partisan supporters were disappointed, and even disgusted, by Barr’s action. They viewed it as some sort of deep state maneuver designed to bury what they believe is evidence of widespread criminality by the Obama-Biden administration. But the fact is, Durham’s investigation will likely join earlier efforts — Rep. Devin Nunes’ investigation, various inspector general probes — in revealing more about the actions of the FBI to target a presidential campaign. That is important. People who were expecting former top officials to be led away in handcuffs were expecting too much. Right now, the most important thing is to know what happened, and Barr’s move helps ensure that result.