The Statutory Authority for Barr’s Appointment of Durham as Special Counsel

On Dec. 1, Attorney General William Barr announced that he had appointed John Durham, the U.S. attorney for the District of Connecticut, as a special counsel to investigate the FBI’s probe of Russian interference in the 2016 election. Though Barr appointed Durham formally on Oct. 19, he did not notify Congress until December. What statutory authority did Barr have to make this appointment? And how does that authority compare with Deputy Attorney General Rod Rosenstein’s appointment of Special Counsel Robert Mueller in 2017?

Barr and Rosenstein, respectively, appointed Durham and Mueller pursuant to the same three statutes: 28 U.S.C § 509, § 510 and § 515. The first statute vests broad supervisory powers in the attorney general, while the second statute authorizes the attorney general to delegate his powers to subordinates. The third statute is the most important for present purposes. Section 515 empowers the attorney general to authorize a “special assistant”—though not a “special counsel”—to conduct “any kind of legal proceeding, civil or criminal, including grand jury proceedings.” Both the Durham and Mueller appointments contain the same, critical sentence: “If the Special Counsel believes it is necessary and appropriate, the Special Counsel is authorized to prosecute federal crimes arising from the investigation of these matters.” This provision will allow Durham to bring federal prosecutions during the Biden presidency.

Neither Durham nor Mueller was appointed pursuant to the special counsel regulations promulgated by the Clinton administration. Rather, both appointment orders indicate that some of these regulations, including “28 C.F.R. §§ 600.4 to 600.10 are applicable to the Special Counsel.” It is not entirely clear what “are applicable” means, as this issue was never tested in courts. But at a minimum, it is clear that Durham was not appointed pursuant to these regulations—in particular, because 28 C.F.R § 600.3 provides that “[t]he Special Counsel shall be selected from outside the United States Government.” Durham would not meet these requirements because he is the U.S. attorney for the District of Connecticut. Barr, therefore, could not have relied on these regulations.

There is some precedent for appointing current federal officers for investigations of possible wrongdoing by government agencies. In 2003 Deputy Attorney General James Comey appointed U.S. Attorney Patrick Fitzgerald as a special counsel to investigate “the alleged unauthorized disclosure of a CIA employee’s identity.” But Comey did not cite the Clinton-era regulations. On the other hand, his letter appointing Fitzgerald made no reference to the special counsel regulations, either.

There is a significant distinction between a special counsel appointed pursuant to the regulations and a special counsel appointed pursuant to the attorney general’s statutory authority, but to whom some of the regulations apply. 28 C.F.R. § 600.7 imposes an important constraint on the executive branch: “The Attorney General may remove a Special Counsel for misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies.” Therefore, if Durham was not actually appointed pursuant to these regulations, the next attorney general could argue that the removal protections are not applicable to Durham.

Writing on Twitter, Lawfare’s Benjamin Wittes speculated about two possible paths the next attorney general could take. First, he wrote, the “attorney general could simply amend this order and make clear that the entire slate of special counsel regulations apply—and then remove Durham on grounds that his appointment is not, in fact, compatible with those regulations.” I’m not sure this option would work through a simple clarification. Subjecting Durham to new requirements could be viewed as a new appointment altogether, which could amount to removing him from his old position. And that removal would not be made in light of any misconduct. Durham could plausibly claim that the tenure protections for his initial appointment—including 28 C.F.R. § 600.7—were violated. And, in theory at least, Durham could sue the attorney general to collect lost wages. It isn’t clear whether Durham could challenge his termination based on the loss of his salary. This issue was vigorously debated during the Mueller investigation, but never tested. The attorney general could also try to moot any potential litigation by keeping Durham on the payroll, but denying all of his requests to expand the investigation. The attorney general, however, would have to disclose these actions to Congress.

Wittes offers a second option: The next attorney general could “rescind this Barr order applying the special counsel regulations” to Durham. This step, Wittes wrote, would terminate the investigation. I think this approach would stand on a stronger footing. But the attorney general might hesitate to take this step because of external and internal pressures. To the general public, after all, the rescission of Barr’s order would be indistinguishable from firing the special counsel. Most people will not grasp the subtle nuance of this move. And given the fact that Barr never removed Mueller from his position as special counsel, there will likely be public pressure to allow Durham to complete his task.

The attorney general may also face internal pressures in this direction. The Department of Justice has, historically at least, adhered to certain institutional principles. One of those norms is that investigations should be allowed to proceed to completion without undue influence. Recall that Attorney General Janet Reno gave Independent Counsel Kenneth Starr full support throughout his investigation of President Bill Clinton. If Durham crosses a line and engages in misconduct, Biden’s attorney general will have to decide if termination is appropriate. But if the attorney general preemptively removes the special counsel without any cause, the Department of Justice may set a harmful precedent. After all, perhaps Durham will play by the books, and his investigation will turn up bupkis. A premature termination would foreclose that outcome. Moreover, removing Durham threatens to undermine, and potentially delegitimize, future special counsel appointments. In theory, a Republican administration in 2025 could simply terminate any ongoing special counsel investigations, citing the Biden administration’s precedent. Keeping Durham on board gives the department flexibility to appoint and protect other, more controversial special counsels in the future.

There are thus a number of institutional reasons to let this investigation run its course. If Durham falters, the attorney general can use a tighter leash. Unless a new attorney general announces otherwise, however, the presumption should be that Durham is protected from at-will removal.

The scope of Durham’s appointment, however, is far broader than the scope of Mueller’s appointment. Rosenstein authorized Mueller to “conduct the investigation confirmed by then-FBI Director James B. Comey ... including: (i) any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump; and (ii) any matters that arose or may arise directly from the investigation.” Durham’s charge is not limited to a preexisting investigation. Barr described the special counsel’s jurisdiction in capacious terms:

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, III.

In short, Durham can investigate anyone who potentially violated any law that is in any way connected with the investigation of the 2016 election. And that investigation can target Mueller and his staff. Charlie Savage aptly described the appointment in the New York Times: Durham is “in effect, a special counsel for the special counsel.”

But there is one regard in which Durham’s appointment may be more narrow. Rosenstein’s order expressly authorized Mueller to investigate “any other matters within the scope of 28 C.F.R. § 600.4(a).” This provision gives the special counsel jurisdiction to “investigate and prosecute federal crimes committed in the course of, and with intent to interfere with, the Special Counsel’s investigation, such as perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses; and to conduct appeals arising out of the matter being investigated and/or prosecuted.” Of course, the bulk of the Mueller report focused on these sorts of process-based crimes. Barr’s appointment of Durham, however, does not expressly reference investigations pursuant to 28 C.F.R. § 600.4(a). But the Barr letter does provide that 28 C.F.R. § 600.4(a) is applicable to the special counsel. I’m not sure if this distinction makes a difference. Durham could still charge people with obstruction of justice and other similar offenses.

Unlike Mueller, Durham’s investigation began prior to his appointment as special counsel. Barr had initially asked Durham to look into the 2016 election in May 2019. However, more than a year later, Durham still has not completed his work. In his appointment order, Barr stated 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.” Barr elaborated on these extraordinary circumstances in his letter to Congress announcing the appointment, writing, “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 2017, Rosenstein immediately notified Congress that he appointed Mueller. Barr, however, delayed the announcement of Durham’s appointment. Barr wrote to Congress, “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.” And he made that appointment on Oct. 19, two weeks before the election. The relevant authority here is 28 C.F.R. § 600.9(b), which allows the attorney general to delay notifying Congress “upon a finding that legitimate investigative or privacy concerns require confidentiality.” Barr found exactly that concern was present, explaining to Congress that a delay “was in the public interest to toll notification given the proximity to the presidential election.”

The regulations also provide that “the notification will be provided” when “confidentiality is no longer needed.” We can presume Barr’s decision to notify Congress reflects the attorney general’s conclusion that the election is no longer in dispute. Indeed, shortly before he transmitted this letter, Barr told the Associated Press “to date, we have not seen fraud on a scale that could have effected a different outcome in the election.” I suspect the timing of these two events was deliberate. Barr was waiting for the Justice Department’s internal investigation into alleged voting irregularities to settle the outcome of the election, before publicizing the appointment of Durham as special counsel.

Notably, Barr included a statement that did not appear in Mueller’s authorization: “In addition to the confidential report required by 28 C.F.R. § 608(c) the Special Counsel, to the maximum extent possible and consistent with the law and the policies and practices of the Department of Justice, shall submit to the Attorney General a final report, and such interim reports as he deems appropriate, in a form that will permit public dissemination.” Here, Durham is expressly instructed to prepare a Mueller-style report that can be released. Of course, the attorney general will have the discretion to release all of it, a summary of the report, or conceal it altogether. But given the fact that Durham was instructed to prepare such a report, there will be pressure on the next attorney general to make the document public.

Soon enough, many of the fights from the Mueller investigation may be rekindled, but with the roles reversed. Congressional Democrats will criticize the Durham investigation as a partisan proceeding. Congressional Republicans will celebrate the investigation as a way to uncover illegal conduct. After a few years, the report will be completed, and the next attorney general will be under pressure to release as much of the report as possible. Afterward, Congressional Republicans will sue to un-redact confidential grand jury materials. And, throughout the process, the press will receive a never-ending drip-drip-drip of allegations. Here we go again.

Correction: An earlier version of this article incorrectly stated that then-Deputy Attorney General James Comey appointed U.S. Attorney Patrick Fitzgerald as a special counsel in 2005. In fact, Fitzgerald was appointed in 2003.