UPDATED: SWC Weighs In On The Durham SC Appointment

I have to admit that I'm not too sanguine about the Durham Special Counsel appointment, to supposedly continue the Russia Hoax investigation that he managed not to complete up to the date of writing. Shipwreckedcrew takes a first look at the appointment:

Attorney General Barr Appoints John Durham as "Special Counsel" To Continue Investigation into Russia Hoax

Regular readers will be aware that I respect SWC's legal opinions. I state above that this is a "first look" because SWC recognizes in his article that this is a complicated situation. So let's take our own initial look.

First of all, there's something strange about this appointment that sundance points out. 28 CFR § 600.3 - Qualifications of the Special Counsel explicitly states that a Special Counsel "shall be selected from outside the United States Government." And yet Barr's order appointing Durham as SC just as explicitly states that John Durham is the "United States Attorney for the District of Connecticut." I can't reconcile the two. To all appearances Durham, the USA for the District of CT, should be ineligible to be a SC because, the last time I checked, a US Attorney is definitely a US Government official. I don't get it.

As I said up top, I'm not as sanguine as SWC. Even if Durham were to come out with indictments before a Biden inauguration, I can see Durham being fired and a Biden DoJ moving to dismiss the indictments--and getting away with it. SWC thinks there'd be a big stink about a coverup. I say, if a tree falls in the forest and nobody is there to hear it fall, maybe there's no sound at all. Yes, there'll be a big stink--at Red State and similar sites. The only thing that matters, though, is the political memory of the American people. How many remembered Biden Inc.'s long and well documented record of corruption and general sleaze? Far too few, it would seem, from the after election polling.

That said, here's what SWC has to say toward the end of his typically thorough article--and, from my point of view, there's plenty of room for disappointment:

Earlier in the article, the AP reports that Barr stated that the focus of the Durham investigation started out more broadly but has narrowed to focus on FBI personnel engaged in the “Crossfire Hurricane” investigation.

Barr told The Associated Press … he had appointed U.S. Attorney John Durham as a special counsel in October under the same federal statute that governed special counsel Robert Mueller in the original Russia probe. He said Durham’s investigation has been narrowing to focus more on the conduct of FBI agents who worked on the Russia investigation, known as Crossfire Hurricane.

As noted in the article, this would seem to suggest that Durham is not focused on the “Intelligence Community” or conduct by individuals that might have pre-dated the opening of the “Crossfire Hurricane” investigation which the FBI claims took place on July 31, 2016. But the Order makes clear that Durham has the authority to pursue such aspects of the matter as part of his investigation should he see fit to do so.

It also suggests--or would "seem to suggest"--that Durham won't be looking at any big picture conspiracy, as I was so confident he was doing. Focus on FBI agents? I don't want to minimize their guilt, but ... no focus on the Mueller lawyers? Let's be perfectly clear. It wasn't FBI agents who kept the Mueller Witchhunt going. It was DoJ. This looks like, punish the little people--relatively speaking.

 

The final paragraph is also interesting and lights the fuse on a potential political bombshell for any Attorney General who might come after Barr. The Order directs Durham to prepare a final report of his investigation, as well as any interim reports he deems appropriate, and to do so in a “form that will permit public dissemination.”

The decision to release those reports to the public will be a matter left to whoever is Attorney General at the time Durham produces the reports. But the public pressure to release the Reports will be significant, and a failure to do so will be seen as a cover-up — just as would have been the case if the Mueller Report had not been released to the public. Any Attorney General facing the question of whether to release the Report would likely need to fully take into consideration the fact that Jim Jordan will likely be the Chairman of the House Judiciary Committee beginning in January 2023.

I ask: Was there significant pressure to get the investigation done, and if there was did it make a difference? Then why would we expect anything different this time around? What was that they say about the definition of insanity? If Durham lasts long enough to write his report, I can see that being lodged in the cone of silence. 

I'll be pleased to be as wrong about any or all of the above as I was about my initial expectations.

UPDATE: Andy McCarthy agrees: Durham doesn't qualify for the SC position because he's a government employee. No third party, he argues, can enforce that against an AG who wants to keep Durham on as SC but, by the same token, any new AG can feel absolutely free to fire Durham's ass any time they please.