As the Los Angeles Times reports, Barr stepped out on Wednesday to say there was no problem with him appointing a special counsel and launching an investigation that has now run four years without netting even a minnow. Because it was never about crimes in the first place.
“The idea that there was a thin basis for doing it doesn’t hold water,” said Barr. “Because it wasn’t started as a criminal investigation. … “Yes, we wanted to hold people accountable if something came up that indicated criminality, or you could prove criminality. But it wasn’t a criminal investigation, it was a review to get the story. And he got the story.”
Really? It wasn’t started as a criminal investigation? Let’s take a quick look at the Special Counsel Statute in the Code of Federal Regulations.
The Attorney General, or in cases in which the Attorney General is recused, the Acting Attorney General, will appoint a Special Counsel when he or she determines that criminal investigation of a person or matter is warranted ...
There are a couple of codices to that indicating that a special counsel is only needed if it’s in the public interest, and there would be a conflict if the investigation of the matter by a U.S. attorney or the attorney general might represent a conflict.
There is nothing, absolutely nothing, in the regulations even to suggest that a special counsel might be appointed for anything other than a criminal investigation.
Starting a widely announced investigation without evidence that a crime had even been committed might seem like the definition of using criminal and intelligence powers to impinge on political activity. It doesn’t even seem that Barr and Durham set out to investigate specific allegations. They just went out and started twisting arms.
Other prosecutors might also have something to say about launching a limitless, unrestricted, evidence-free “review to get the story.” This is what is widely known as a “fishing expedition.” Or, in terms that might be more familiar to Barr, a “witch hunt.” That’s the kind of thing that, at the very least, is likely to be thrown out of any courtroom. And that’s the best possible interpretation of Barr’s own claims about what he and his special counsel were up to.
Barr also stayed in regular contact with Durham throughout his investigation, traveling with him, setting new tasks for Durham, and acting as Durham’s frontman in communications with foreign and domestic intelligence agencies. That’s an absolute violation of the part of the regulation that insists a special counsel is only to be named if the participation of other parts of the DOJ would generate a conflict.
Barr undoubtedly harbors fond memories of Ken Starr, Whitewater, and how if you let someone sit around long enough, sifting through things utterly unrelated to the supposed reason they were appointed, they’re bound to come up with something. Except Durham never did.
Though, of course, Durham has still not produced a final report. Despite the dismissal of the grand jury and losing his only trial, despite spending his time looking at the Clinton Foundation for no reason ever provided, Durham is still occupying an office, still sucking down an essentially unlimited budget. and still hasn’t said when the paperwork will be in.
The whole reason for the creation of the special counsel, as opposed to the apparently unbounded powers of an independent investigator like Starr, was specifically to keep such investigations from wandering all over the map and lasting forever. That’s why, upon appointment, the attorney general is supposed to present the special counsel with “a specific factual statement of the matter to be investigated.” The special counsel can come back to the attorney general and ask for an expansion of that authority if evidence leads them beyond the original scope.
So … what was the statement originally given to Durham? Did he ask for an expanded scope? On what evidence?
We have none of this. Because Barr didn’t bother to follow the special counsel regulations. He just appointed himself an all-purpose henchman and sent him out to hench.
“I think [Durham]'s going to explain,” said Barr, “to the extent he’s allowed to put it out, the whole genesis of [the Russia interference claims] and how it all occurred.”
Barr apparently never noticed that the entirely Republican-run House Intelligence Committee and the Republican-led Senate Intelligence Committee had already produced reports detailing the origins of the Russia investigation. They weren’t able to show misuse of the Justice System, but the Senate was able to show over 100 incidents of contact between Trump’s campaign and Russian agents, along with efforts by the campaign to extract even more assistance from Russia.
Barr might also have noticed that the Robert Mueller investigation, which didn’t begin until May of 2017, was also tasked with looking for any issues with how the FBI and DOJ had conducted their initial investigation. Mueller had the “whole genesis” of the Russian interference claims. Which turned out to be Russian interference. That’s also a narrative. It’s just that Barr didn’t like that narrative.
None of that matters. It also doesn’t matter that when the Durham report finally appears, it’s not going to carry any evidence bigger than innuendo. It doesn’t matter because Barr has already set up the next conspiracy in this statement. Durham is going to tell the story “… to the extent he’s allowed to put it out,” says Barr. Because, obviously, anything that doesn’t confirm all of Trump’s claims is the result of more suppression by the deep state.
Barr not only created an investigation entirely for political purposes, his defense is that he created this investigation completely counter to the purposes of the special counsel regulations.
Don’t expect anything to be done about it.
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