The Biden campaign did not immediately respond to a request for comment. Democrats have long viewed Durham’s efforts as political payback by President Donald Trump and his allies, seeking to deflect from evidence that the Trump campaign capitalized on the Kremlin’s efforts.
Since May 2019, Durham has been reviewing the FBI’s decision to launch the investigation of President Donald Trump’s campaign and its connections with Russia, a sprawling probe that became known as Crossfire Hurricane and which was later taken over by Special Counsel Robert Mueller.
Trump railed against the investigation for years, describing it as a “witch hunt” and a “coup” attempt, and his efforts to curtail the probe led Mueller to lay out significant evidence of obstruction of justice, which helped fuel impeachment investigations on Capitol Hill.
By saddling the incoming Biden administration with a special counsel, it ensures that Biden will have less flexibility to attempt to scuttle any ongoing investigation and could hamstring his choice for attorney general. Barr has been one of Trump’s staunchest allies in questioning the Mueller probe and has largely echoed Trump’s criticisms. But Barr, too, has earned Trump’s ire of late for declining to indict his political adversaries ahead of the election.
Designating Durham as a special counsel increases the political cost of removing him for a new administration, especially given that Democrats portrayed talk of removing Mueller as a step that would bring on a kind of political armageddon. Language Barr placed in the order naming Durham as a special counsel also seeks to make it more likely that the final report of his investigation is made public.
Durham’s ongoing probe has produced just one prosecution so far: a mid-level FBI attorney named Kevin Clinesmith who pleaded guilty to falsifying an email used to obtain a surveillance warrant against former Trump campaign aide Carter Page. Sentencing memos are due in that case on Thursday with sentencing scheduled for Dec. 10.
Trump allies were dismayed when Durham and Barr opted against issuing a report or additional charges before the Nov. 3 election. It now appears that Barr’s move to formalize Durham’s status came as complaints from Trump’s allies about the lack of action in the probe were reaching a fever pitch.
Though Barr has long insisted that the probe would not ensnare former President Barack Obama and Biden, Trump has used the ongoing investigation to baselessly accuse his predecessors of a massive illegal campaign to disrupt his incoming administration and hobble his presidency.
Trump deployed those attacks during presidential debates against Biden, and he has routinely called for Barr to prosecute his political adversaries based on these allegations.
In a letter to House Judiciary Committee Chairman Jerry Nadler, Senate Judiciary Committee Chairman Lindsey Graham and the panels’ ranking members, Barr said his decision to delay notification until Dec. 1 was because of its proximity to the election.
Under regulations adopted in the aftermath of the Clinton presidency — which was beset by a years-long investigation led by Independent Counsel Kenneth Starr — special counsels operate under the purview of the Justice Department but are intended to be shielded from political appointees. They can only be fired for “good cause” s, though Trump long insisted he had the authority to fire Mueller.
The scope of the investigation is subject to approval by the attorney general, and major investigative steps like indictments are still at the discretion of the administration, although the regulations require reporting significant disagreements to Congress. The regulations are not law, so they could be changed by the attorney general at any time, but doing so would risk a political firestorm.
Mueller’s investigation was overseen for nearly two years by Deputy Attorney General Rod Rosenstein because then-Attorney General Jeff Sessions had recused himself, a source of constant fury from Trump. Trump removed Sessions after the 2018 election and later nominated Barr as his permanent successor.
Barr had previously served as attorney general for President George H.W. Bush but had also earned Trump’s notice after he penned a memo as a private citizen that took aim at the Mueller probe.