William Barr, U.S. attorney general, arrives for the announcement of U.S. President Donald Trump's nominee for associate justice of the U.S. Supreme Court during a ceremony in the Rose Garden of the White House in Washington, D.C., U.S., on Saturday, Sept. 26, 2020. (Photo: Stefani Reynolds/Bloomberg via Getty Images)
WASHINGTON — Attorney General Bill Barr’s move to appoint John Durham special counsel appears to have a glaring flaw, former prosecutors and a top Congressional Democrat said: Durham doesn’t appear to be eligible. Federal regulations state that a special counsel is supposed to hail from outside the government. But Durham appears to still be serving as the top federal prosecutor in Connecticut. Barr revealed on Tuesday that he made Durham a special counsel and tasked him with investigating the origins of the Russia investigation led by another former special counsel appointed in the beginning of the Trump presidency—Robert Mueller.
President Trump has loudly and repeatedly blasted the Mueller investigation as a “witch hunt,” and demanded Barr and Durham investigate the investigators. Durham had already been busily investigating those questions for months. Barr secretly gave Durham special counsel status in October, he revealed in a letter to Congress on Tuesday. The move theoretically creates special protections for Durham’s investigation that make it harder for a future president Joe Biden to simply shut the probe down. However, those special protections would melt away if Durham isn’t actually qualified to be a special counsel. And a prominent House Democrat, Rep. Jerrold Nadler of New York, immediately said Durham is nothing of the kind. “On its face, this appointment appears to violate the Department’s own regulations—which stipulate, among other requirements, that 'the Special Counsel shall be selected from outside the United States Government,’” Nadler, chairman of the influential House Judiciary Committee, wrote in a statement. “The sitting U.S. Attorney for the District of Connecticut is simply not eligible for the job.”Two former prosecutors told VICE News they agreed with Nadler’s assessment, based on the language of the regulations. The text, which is contained in 28 CFR 600.3, clearly undermines Durham’s eligibility, said Jill Wine-Banks, a former member of the prosecutor team in the Watergate scandal of the 1970s. “On the plain language of 28 CR 600.3, Durham is not eligible to be appointed,” Wine-Banks wrote in an email to VICE News. Durham’s apparent ineligibility means a future Attorney General could dismiss Durham or choose another candidate, said Nick Ackerman, a former federal prosecutor for the Southern District of New York. “The future attorney general ought to sit down with this guy and find out what he’s got and where it’s going. if there’s something that should be investigated, then it should be investigated,” Ackerman said. “But hiding this appointment behind the special counsel law is just a transparent ploy to create an aura that there was something wrong with the Russia investigation.”