In what might prove to be his last significant act as attorney general, William Barr appointed John Durham to be a special counsel, in order to continue the Trump administration’s investigation into the Obama administration even after Trump himself leaves office. Critics immediately recognized a legal glitch in Barr’s memo appointing Durham, but that glitch will not negate Durham’s appointment. In that respect, the glitch is less significant than it might seem. Yet, at the same time, it is also more significant than it seems.
When Attorney General Barr announced on Tuesday that he had, back in October, appointed Durham to be a special counsel, his memo vested Durham with extraordinary powers and independence from oversight as he continues his investigation into the Obama administration’s Crossfire Hurricane investigation of the 2016 Trump campaign. Barr made clear that Durham is also investigating “the investigation of Special Counsel Robert S. Mueller, III.” And other language in the memo (“including, but not limited to”) suggests that Durham may investigate even more, too.
The Justice Department created the office of “special counsel” twenty years ago—following the 1999 expiration of the old independent counsel statute, under which Ken Starr’s wide-ranging investigation of Bill Clinton had been conducted—in order to create a mechanism for the Justice Department to investigate allegations of misconduct within the president’s own administration, without interference by the president’s attorney general. But Barr’s appointment of Durham is intended to do something quite different: to continue investigating the Obama administration, and with insulation against interference by the Biden administration. Not an act of self-restraint by President Trump’s Justice Department—indeed, the very opposite.
Commentators quickly recognized an apparent glitch in Barr’s memo. Under Section 600.3 of the Justice Department’s regulations, a special counsel “shall be selected from outside the United States Government.” Durham, of course, is not “outside” the U.S. government; he has been in the Justice Department since 1982; he was appointed by President Trump to be the U.S. Attorney for Connecticut in 2018; and from that office he has already been carrying out the Trump administration’s investigation of Crossfire Hurricane since May 2019.
But that legal technicality is much less significant than it appears, because Barr’s new order appointing Durham as a “special counsel” very carefully avoids invoking the DOJ’s regulations as authorizing this appointment in the first place. He sidesteps the regulatory provisions defining the kinds of cases suitable for a special counsel, and defining the qualifications of a special counsel (that is, Sections 600.1 through Sections 600.3); instead, Barr invokes separate legal authority for Durham’s new appointment: “the authority vested in the Attorney General, including 28 U.S.C. §§ 509, 510, and 515.” (Of that open-ended list of vague authorities, the most important ones are Section 510’s authorization for the attorney general to “delegate” his powers to others, and Section 515’s authorization for him to make “special” appointments.)
But Attorney General Barr’s order does invoke the rest of the Justice Department’s special counsel regulations, Sections 600.4 through 600.10, for the purposes of protecting Special Counsel Durham from day-to-day management by the attorney general. For the next few weeks, the order will insulate Durham from Attorney General Barr—assuming he isn’t fired by President Trump—and then, more importantly, from Sally Yates, Lisa Monaco, or whomever Biden eventually appoints to succeed Barr.
In short, Attorney General Barr’s appointment of Durham tries to have it both ways: appointing a special counsel with the benefits of the DOJ regulations’ protections, but without burdens of the DOJ regulations’ prerequisites.
Barr’s action is not without precedent. As Charlie Savage observed in the New York Times, Robert Mueller was appointed special counsel in 2017 under similar circumstances. His appointment satisfied the regulation’s requirement that he come from outside of government, but the investigation that he was appointed to lead violated another regulatory prerequisite: instead of being limited to a “criminal investigation,” it also included non-criminal national-security matters. (Thus, when Mueller’s appointment was challenged by Paul Manafort and others, some of the special counsel’s proponents emphasized that Mueller’s appointment involved only the DOJ regulations’ provisions for independence and process, not their provisions for the appointment itself—just like Durham now.) Indeed, that part of Attorney General Barr’s order appointing Special Counsel Durham is phrased in the very same words as Acting Attorney General Rod Rosenstein’s order appointing Special Counsel Mueller: giving the protections of the DOJ regulations, but not citing those regulations as the basis for the appointment itself.
It’s unclear what this means as a matter of law. Can an attorney general wave off the regulatory protections that Barr gave to Durham, simply because Durham was not appointed pursuant to those same regulations? We won’t know until someone tries to oppose, constrain, or remove Durham. But Mueller’s appointment, surrounded by the same legal questions, offers the same basic answer: The real point was to amplify the practical protections surrounding the special counsel, because any attorney general (or president) who attempted to negate the special counsel’s protections would find himself embroiled in a significant legal debate (with the risk of litigation) that would exacerbate the political debates around the Justice Department, and the institutional debates within the Justice Department.
The first test of this question might come early in the Biden administration. Each new presidential administration calls for the resignations of U.S. attorneys appointed by the last administration, and all but the most intractable ones comply. Given that Durham remains the U.S. attorney for the District of Connecticut, the next attorney general could choose not to exempt him from the general call for U.S. attorney resignations, hoping that Durham will follow the normal protocol and resign voluntarily, rendering the legal question moot. If Durham refuses to join the other U.S. attorneys in resigning, then there will be many questions asked in the months to come: about whether he is staying within the defined scope of his investigation; whether he is following the procedures for continuing or expanding his investigation; and whether the attorney general is giving him the independence that Section 600.7 and the other regulations provide. But if Mueller’s experience is a guide, then Durham’s investigation will not be declared null and void simply because his new appointment as special counsel didn’t meet the requirements of Section 600.3.
So this legal issue means much less than the Trump administration’s critics might hope. But it also means much more. This appointment is simply the latest example of one of the worst trends in modern government: an administration trying enjoy the benefits of making new appointments or new policies without actually going through the processes by which those new appointments or policies should be made.
We have seen this most clearly in the Trump administration’s unprecedented propensity for appointing “acting” officers instead of enduring the trouble of appointing them with the Senate’s advice and consent. As President Trump put it bluntly, “I like acting [officers]. It gives me more flexibility. Do you understand that? I like acting.” The flexibility to hire and fire comes at a cost—less credibility and political capital for cabinet secretaries and others who did not receive Senate approval, and a greater risk that courts will nullify actions taken by an acting director who was not properly appointed, as a federal court recently did to the Department of Homeland Security under Acting Secretary Chad Wolf. Alexander Hamilton knew from the start that Senate confirmation of officers was indispensable; more recently Clarence Thomas suggested that acting officers are simply unconstitutional. But even if the new trend toward regular reliance upon acting officers is not unconstitutional, it exemplifies the problem of administrations trying to wield power while shortchanging the proper process for appointing people to wield it.
But the problem of personnel is dwarfed by the problem of policymaking. For virtually all new policies of any consequence, presidents eschew Congress for the administrative state. Instead of committing their proposals to the frustrations, compromises, and moderation of the legislative process, presidents much prefer to simply create new rules, through executive orders or agency regulations, with much simpler and unilateral processes. While each administration will attempt to frame its new policy as simply the administration of decades-old statutes, they are in substance legislating without Congress. The actual legislative process, though more frustrating and limiting, produces laws that (for the very same reasons) are harder to undo; by relying instead on the administrative process, presidents write policy into regulations for four or eight years, and hope that the next president will be stymied legally or politically from undoing them.
A similar problem exists in foreign policy, as presidents increasingly rely not on treaties with Senate approval, but on executive agreements that purport to accomplish similar ends without the burdens of Senate approval. The Paris Climate Accord exemplifies the trend: President Obama and his administration committed the nation to the accord without the formality of an actual treaty, hoping that future administrations would be bound in practice, if not in law, to maintain the agreement despite the lack of Senate consent. Though President Trump and his administration eagerly withdrew the nation from the accord, it is only a matter of time before the Biden administration returns us to it—presumably once again without seeking Senate consent, and once again hoping that future administrations will be prevented legally, politically, or diplomatically from exiting it.
This is no way to run a country; it is the very opposite of the good, steady administration that Hamilton saw as the best proof of a good constitution. Attorney General Barr wants to have his cake and eat it too. And in the modern age of American governance, who doesn’t?