Barr Recasts Probe of Russia Inquiry So It Can Go Into Biden Era

(Bloomberg) -- Attorney General William Barr has named U.S. Attorney John Durham of Connecticut to be a special counsel in his ongoing investigation into the FBI’s Russia probe, a move that will let the inquiry continue into President-elect Joe Biden’s administration.

Barr said in an interview published by the Associated Press on Tuesday that he made the appointment of Durham -- who is already leading the FBI-Russia probe -- to provide him “and his team some assurance that they’d be able to complete their work regardless of the outcome of the election.”

Durham was originally appointed by Barr to probe whether FBI and intelligence officials committed any crimes or other wrongdoing when they investigated whether anyone associated with President Donald Trump’s election campaign conspired with Russia to interfere in the 2016 election. Barr has embraced Trump’s claim that he was the victim of improper spying.

The Justice Department on Tuesday released Barr’s previously undisclosed order appointing Durham as special counsel in October.

The order gives Durham broad authority to investigate whether any person or entity violated the law through intelligence or law enforcement activities aimed at Trump’s 2016 presidential campaign and subsequent administration. The scope of the order potentially means that Durham could investigate whether Biden did anything illegal while he was vice president, as Trump has alleged.

‘Restore Credibility’

Barr previously said he didn’t expect Durham’s investigation would lead to a criminal investigation of Biden or former President Barack Obama.

Lindsey Graham of South Carolina, the Republican chairman of the Senate Judiciary Committee, said the Durham probe would help “restore credibility to the Department of Justice and FBI.” But Democrats called it an abuse of power.

“Barr is using the special counsel law for a purpose it was not intended: to continue a politically motivated investigation long after Barr leaves office,” Representative Adam Schiff of California, who led the Democrats’ efforts during Trump’s impeachment in the House, said in a statement. “Having politicized the Department of Justice from his first days in office, it is a fitting coda that Barr should seek to do so in his last.”

Barr told the AP that while Durham’s investigation began very broadly, it has since “narrowed considerably” and now “really is focused on the activities of the Crossfire Hurricane investigation within the FBI.”

A Justice Department watchdog last year concluded that the FBI’s operation was legally sound and justified and not the product of political bias against Trump from FBI leaders even though mistakes were made that led the bureau to make changes in procedures.

Legality Questioned

House Judiciary Chairman Jerrold Nadler, a New York Democrat, said in a statement that appointing Durham, a current U.S. attorney, as a special counsel isn’t legal because Justice Department regulations require choosing someone from outside of the government.

Technically, Barr appointed Durham under his authority as attorney general, not under the special counsel regulations. That could lead to legal challenges about Durham’s authority to pursue his inquiry, according to constitutional law scholar Laurence Tribe. But the Harvard Law School professor said the appointment probably isn’t worth challenging.

“I’d advise them to let Durham go on as long as he wants,” Tribe said. “There’s no ‘there’ there.” To try to get rid of him, he said, would “make a mountain out of a molehill.”

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