The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Lawfare has published my new essay, titled "The Statutory Authority for Barr's Appointment of Durham as Special Counsel." (I previewed some of these arguments yesterday). In many regards, Barr's appointment of Durham tracks Rosenstein's appointment of Mueller. The huge question, of course, is whether President Biden's Attorney General tries to remove Durham. I address that issue here:
There is a significant distinction between a special counsel appointed pursuant to the regulations and a special counsel appointed pursuant to the attorney general's statutory authority, but to whom some of the regulations apply. 28 C.F.R. § 600.7 imposes an important constraint on the executive branch: "The Attorney General may remove a Special Counsel for misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies." Therefore, if Durham was not actually appointed pursuant to these regulations, the next attorney general could argue that the removal protections are not applicable to Durham.
Writing on Twitter, Lawfare's Benjamin Wittes speculated about two possible paths the next attorney general could take. First, he wrote, the "attorney general could simply amend this order and make clear that the entire slate of special counsel regulations apply—and then remove Durham on grounds that his appointment is not, in fact, compatible with those regulations." I'm not sure this option would work through a simple clarification. Subjecting Durham to new requirements could be viewed as a new appointment altogether, which could amount to removing him from his old position. And that removal would not be made in light of any misconduct. Durham could plausibly claim that the tenure protections for his initial appointment–including 28 C.F.R. § 600.7–were violated. And, in theory at least, Durham could sue the Attorney General to collect lost wages. It isn't clear whether Durham could challenge his termination based on the loss of his salary. This issue was vigorously debated during the Mueller investigation, but never tested. The attorney general could also try to moot any potential litigation by keeping Durham on the payroll, but denying all of his requests to expand the investigation. The attorney general, however, would have to disclose these actions to Congress.
Wittes offers a second option: the next attorney general could "rescind this Barr order applying the special counsel regulations" to Durham. This step, Wittes wrote, would terminate the investigation. I think this approach would stand on a stronger footing. But the attorney general might hesitate to take this step because of external and internal pressures. To the general public, after all, the rescission of Barr's order would be indistinguishable from firing the special counsel. Most people will not grasp the subtle nuance of this move. And given the fact that Barr never removed Mueller from his position as special counsel, there will likely be public pressure to allow Durham to complete his task.
The attorney general may also face internal pressures in this direction. The Department of Justice has, historically at least, adhered to certain institutional principles. One of those norms is that investigations should be allowed to proceed to completion without undue influence. Recall that Attorney General Janet Reno gave Independent Counsel Kenneth Starr full support throughout his investigation of President Bill Clinton. If Durham crosses a line and engages in misconduct, Biden's attorney general will have to decide if termination is appropriate. ut if the attorney general preemptively removes the special counsel without any cause, the Department of Justice may set a harmful precedent. After all, perhaps Durham will play by the books, and his investigation will turn up bupkis. A premature termination would foreclose that outcome. Moreover, removing Durham threatens to undermine, and potentially delegitimize future special counsel appointments. In theory, a Republican administration in 2025 could simply terminate any ongoing special counsel investigations, citing the Biden administration's precedent. Keeping Durham on board gives the department flexibility to appoint and protect other, more controversial special counsels in the future.
There are thus a number of institutional reasons to let this investigation run its course. If Durham falters, the attorney general can use a tighter leash. Unless a new attorney general announces otherwise, however, the presumption should be that Durham is protected from at-will removal.
My conclusion offers a preview of what lies ahead:
Soon enough, many of the fights from the Mueller investigation may be rekindled, but with the roles reversed. Congressional Democrats will criticize the Durham investigation as a partisan proceeding. Congressional Republicans will celebrate the investigation as a way to uncover illegal conduct. After a few years, the report will be completed, and the next attorney general will be under pressure to release as much of the report as possible. Afterwards, Congressional Republicans will sue to un-redact confidential grand jury materials. And, throughout the process, the press will receive a never-ending drip-drip-drip of allegations. Here we go again.
And I'll flag one final point. Durham may ask current President, and former Vice President Biden to sit for a deposition to discuss an important meeting held in the waning days of the Obama administration. Everything is old is new again.