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Tuesday, December 1, 2020

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.


36 comments:

  1. Mark if you were donald trump would you issues mass declassifications?

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    1. ...and with mass declassification no obstruction of justice accusations aimed at Trump. If Durham were a legit SC I would assume a declass would be obstruction and used as a threat to the 'possibly' outgoing president, no?

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  2. I always thought the coup plotters should have been offered blanket pardons in exchange for full disclosure. The most important thing was always for the story to get out. Now it never will.

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  3. This comment has been removed by the author.

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  4. Great point - the coverage of Hunter Biden is a great example of this:

    if a tree falls in the forest and nobody is there to hear it fall, maybe there's no sound at all.

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  5. I think that the CIA was not involved in the operational shenanigans.

    George Papodopoulos has said he was sent to meet with Joseph Mifsud in Rome by Savinder Ambei, an FBI associate. I think the meeting was arranged by Michael Gaeta, stationed in Rome and the FBI handler of Christopher Steele. The CIA had nothing to do with the Papadopoulos/Mifsud meeting.

    Likewise, I think that the CIA had nothing to do with the meeting between Papadpoulos and Alexander Downer in London. At the end of July, Downer wrote a belated memo about that meeting and delivered it to someone at the USA's London Embassy. From there it was sent to FBI Headquarters, where a couple days later it became "the tipping point" for the FBI to open its Crossfire Hurricane investigation.

    All the operation shenanigans in this history were done by FBI Counterintelligence.

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    1. Also, it was the FBI who wanted to include the Steele Dossier in the Joint Analysis that was published in January 2017.

      The CIA resisted the inclusion of the Steele Dossier. I think that the CIA recognized that the Dossier was based to some extent on reports from CIA spy Oleg Smolenkov. In that regard, the CIA knew that Smolenkov had not reported anything about the alleged Prague meeting and thus figured out that Steele was fabricating.

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    2. Of course, the CIA's assessments about Russia's election-meddling were stupid.

      However, the CIA was not involved in framing innocent people.

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    3. That's why former CIA chief goes on the TV all the time to tip us all off that the POTUS is a Russian asset? Because the CIA was not involved in framing innocent people?

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    4. Curious, what then would be your take on the Stefan Halper / Mifsud / Flynn / ONA connections leading up to the Mifsud and Papa introductions?

      The guy seems to pop up in the most messed up places.

      Or the origination of Crossfire late 2015 / early 2016 coming from the CIA over to the FBI?

      There seem to be too many links there to ignore to me.

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  6. Trump if he were smart would blow this whole thing up, step down and let Pernce finish out his term, before stepping down however declass all and hold I don't know 5 or 10 interviews with Maria or Tucker Carlson or anybody brave enough to do it simulcast on Newsmax and wherever else conservatives now go but anyway just FULL TRANSPARENCY and Sunlight, light them all up both sides of the aisle. WE HAVE A RIGHT TO KNOW. Do you suppose Barr put Durham in special counsel land to shield from Trump disclosure?

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    1. Interesting idea. Much to recommend it.

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    2. ? Step down?

      No, do not do that.

      Declass and release, yes, step down, no.

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    3. Texas, he steps down to immediately join sidney and rudy in suing every state official in every state who defrauded him. He starts peeling away patriots fed up with the Covid bs and fed up with the lies, the kind of people already stepping forward to help Sidney. Starts a new political party and starts a television network or buys one and continues the fun, only now no pretense of having anything to do with the republican party. Pence blanket pardons him for any bullshit the Dems think they can harass him with and he is free to write his memoir and detail exactly what was done to him. I would follow him to hell. If he stays for the "peaceful transition" they're not going to give him credit and it ain't gonna make us more peaceful. He takes his 80 million followers off of Twitter with one tweet. Goodbye. In any event we get the enjoyment of watching the humourous left try to compete. They won't be able to ignore him. He's 10 times the politician any of them is and will outshine them even "out of office."

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    4. Texas, he steps down to immediately join sidney and rudy in suing every state official in every state who defrauded him. He starts peeling away patriots fed up with the Covid bs and fed up with the lies, the kind of people already stepping forward to help Sidney. Starts a new political party and starts a television network or buys one and continues the fun, only now no pretense of having anything to do with the republican party. Pence blanket pardons him for any bullshit the Dems think they can harass him with and he is free to write his memoir and detail exactly what was done to him. I would follow him to hell. If he stays for the "peaceful transition" they're not going to give him credit and it ain't gonna make us more peaceful. He takes his 80 million followers off of Twitter with one tweet. Goodbye. In any event we get the enjoyment of watching the humourous left try to compete. They won't be able to ignore him. He's 10 times the politician any of them is and will outshine them even "out of office."

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  7. The Republicans in D.C. are worthless outside Cruz and Paul. They are in the process, right now, of cutting their own political throats in not standing up to this obvious election fraud. They seem to think they will control the Senate in the next term- they won't. If Trump wasn't on the ballot this cycle, the Democrats would have won the IA, NC, MT, ME, and both Georgia seats in November. Without Trump on the top of the ticket, the Democrat will win both runoffs in GA in January. The Republicans seem to think they are positioned to do well in the midterms- they are sorely mistaken. Without Trump on the top of the ticket, you will see repeat of the 2018 House elections plus no Trump rallies to save any of the Republican Senate seats. I predict the Democrats run the table in 2022 after this utterly supine performance of D.C. Republicans.

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    1. Yeah, you will see repeat of the 2018 House elections, plus, the DS will have free reign to sabotage any GOP candidates who really look dangerous.

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    2. I agree 100%.
      Tom S.

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    3. Republicans seem to be saying, where else are you going to go? We're the only game in town, do we want the dems to ruin our day, every day? Or repubs just screw us once a week? Rock or hard place - hardly a choice.

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    4. I think the republicans are ok with being on the loosing side. If you've followed Mitch Mcconnell's career at all he seems to be much more content when he is in the business of selling votes vs buying votes or breaking even.

      That's about the only difference between teams in DC, who's buying or selling.

      I think even 90% of republican supporters will fall in line for the loss, amnesia is one of the better qualities. The leadership counts on them to forget and be good law abiding citizen.

      No muss, no fuss, from us...

      I wish I was being facetious, but believe me when I say the more you really pay attention the more depressing it gets.

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  8. This is all ridiculous. I don't think I'm alone in saying that I don't want a special counsel and more reports; and that Barr and company should have just as well shelved the whole thing ages ago if it is going to go down this clownish route.

    Either there are indictments or there aren't; either justice is served or it isn't.

    I think several parties are as guilty as hell in this fiasco, and I believe the institutions they were attached to have been irreparably damaged. But John Dunham and Barr have already have had enough time to do something about it. They've done nothing, and kicking the can down the road so everyone can play "special counsel" again is insulting to every party; its an injustice on top of what these people got away with.

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    1. Imagine how I feel about this. 'Insulted' doesn't begin to tell the story.

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    2. Clearly hiding among the penumbras of the law (albeit increasingly in plain sight) is the distinction between laws for the apparatchiks vs the deplorables.

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    3. Minutes ago on Hannity, Jarret was allowed by crow about how important this SC news is, but when Gaetz got into his view that it was worthless, it was time for him to be cut off in mid-sentence, for the show to rush into a Break.

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    4. And, Laura I. did mention Rudy's & Sidney's beefs vs. Barr's spin on DoJ conduct, but Mollie H. ducked the issue of the scale of the DoJ probe, by running out the clock (by heaping prais upon the witnesses).
      I would've expected better of Mollie.

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  9. Maybe Durham resigned before being named Special Counsel.

    Didn't see any time period from last government service.

    On that topic, why were current DOJ and FBI personnel allowed to work on Mueller's team?

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  10. https://www.newsmax.com/politics/pardon-whitehouse-investigation-bribery/2020/12/01/id/999580/

    This looks ominous. Could this be the set up for the beginning of the persecutions of the upper echelons of the Trump WH. Don Jr., either Kushner, Trump himself. Odds are DoJ is not going quite as circumspect with the out going admin as they have been about the Russia Hoax. Revenge will be the order of the day.
    Tom S.

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    1. I had the same thought myself.

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    2. Or it could be lawyers for Hunter Biden...

      Dave

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  11. It is a very good thing that I am not paranoid at this point. If I were, I would believe the following. Durham continues doing something, but now that doing something is limited to FBI agents involved with Crossfire Hurricane. Pure coincidental timing that Carter Page has now sued those self-same FBI agents. And... that suit will NOT proceed to discovery in the lifetime of this galaxy - because there is an ongoing investigation. Really, really glad that I am not paranoid. Neil in SD

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  12. "I ask: Was there significant pressure to get the investigation done, and if there was did it make a difference?"

    - Yes and yes. Exposure of the corrupt DS was necessary to attract the "mass" of Trump voters to try to make a difference. The length of time is a direct correlation to the massive sprawling aspects of it all.

    "Then why would we expect anything different this time around?"

    - AG Barr is a chess player... seems to me he's already 4 or 5 moves ahead of others. He knows Durham isn't in an official capacity in the SC role. IMO he's laying a trap and will decide to spring the trap when he's ready.

    "What was that they say about the definition of insanity?"

    - Nothing's ever the same... there's always a catch or something to get tripped up. Give it more time.


    "If Durham lasts long enough to write his report, I can see that being lodged in the cone of silence."

    - Won't happen... There will be no cone of silence. I predict even the MSM won't allow that to be bottled up for long.

    Keep up the great work. Hopefully you can give your wrist & fingers a break soon Mark.

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  13. Even the MSM won't allow that to be bottled up for long?
    The MSM will do what the DS tells them to do, and nothing more.

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  14. Something is fishy here. I don't think Sydney Powell would be so wrong about Barr, just until 2020 March.

    She says "keep your prayers for AG Barr". Here: https://youtu.be/LTV1Y_QuZOM?t=2610

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  15. https://theconservativetreehouse.com/2020/12/01/does-special-counsel-appointment-block-president-trumps-ability-to-declassify-documents/#more-204879

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    1. I saw that. It's a question worth asking, and I think the answer is: it could.

      SWC took the time to deride CTH for publishing some unjustified innuendo about Barr, which is fine and necessary. He hasn't yet addressed this issue nor the one that McCarthy and others immediately raised about whether Durham--a government employee--is qualified to be a SC.

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