The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

John Durham, U.S. Attorney for the District of Connecticut was appointed as Special Counsel (Updated)

But 28 C.F.R. § 600.3 requires special counsels to be "selected from outside the United States Government." (Barr did not rely on 600.3)

|The Volokh Conspiracy |

On October 19, 2020, Attorney General Barr appointed John Durham, the U.S. Attorney for the District of Columbia as special counsel to investigate "certain intelligence and law-enforcement activities surrounding the 2016 presidential election." I have seen the letter Barr sent to Congress, but I have not seen the letter Barr sent to Durham.

The appointment was made pursuant to 28 C.F.R. § 600.4-600.10. I am having awful flashbacks to the Mueller appointment in 2017. (I wrote about those regulations here, here, and here).

28 C.F.R. § 600.3 requires that "The Special Counsel shall be selected from outside the United States Government."

Did Durham quietly step down as U.S. Attorney? Perhaps he had to quietly resign so as not to raise hackles about being appointed as special counsel? Has Durham signed any indictments, or other criminal proceeding documents over the past month? Certainly, a defendant could challenge this dual-office holding. As of November 24, his office was issuing a press release with his name on it.

In any event, it is time for everyone to switch sides on the special counsel regulations. Now, Democrats will favor Durham's removal to end a partisan witch hunt. And the Democratic Attorney should decline to release the entire Durham report–a summary should suffice. Plus, confidential grand jury materials should be redacted. And Republicans in Congress will sue to see the redacted materials. Keep calm and carry on.

Update: Ah, Barr did not rely on 28 C.F.R. § 600.3. He cited. 28 C.F.R. § 600.4-600.10. Barr relied on other statutory authority to make the appointment: 28 U.S.C § 509, § 510, and § 515. (Still trying to track down the memo, but I have been reliably informed of these citations). The last statute is the most relevant:

Each attorney specially retained under authority of the Department of Justice shall be commissioned as special assistant to the Attorney General or special attorney, and shall take the oath required by law. Foreign counsel employed in special cases are not required to take the oath. The Attorney General shall fix the annual salary of a special assistant or special attorney.

Update 2: Here is the memo

Update 3: I have published an essay on Lawfare, titled The Statutory Authority for Barr's Appointment of Durham as Special Counsel.