The case for appointing a special counsel to investigate Hunter Biden is cut and dried. As I noted last night, even some Trump critics believe it’s warranted. Why would Barr show such restraint in this case after he was willing to elevate John Durham to the status of special counsel in order to protect Durham’s investigation?
Meanwhile, an intriguing question for legal eagles: Can Trump himself appoint a special counsel if Barr won’t?
President Trump has expressed interest in pursuing the appointment of a special counsel to investigate allegations of fraud in the November elections and issues related to Hunter Biden, according to people familiar with the matter.
In recent days, the president has directed advisers to look for people who could serve in such a position, one of the people said, as lawsuits and other efforts by Mr. Trump and his campaign to reverse the election results flounder. White House officials and allies of the president on Capitol Hill and elsewhere have also pushed for the appointment of a special counsel, another person familiar with the discussions said…
Mr. Trump, in a meeting Friday, fumed about a Wall Street Journal report that Mr. Barr knew of an existing federal investigation into Hunter Biden before the election but worked to keep it from being publicly disclosed, a person familiar with the conversation said. In the meeting, Mr. Trump contemplated firing Mr. Barr, people familiar with the conversation said, adding that it is not clear whether Mr. Trump intends to follow through…
Associates of Mr. Barr said he is unlikely to name anyone to such a post, particularly after he appointed another prosecutor in October as special counsel to continue his examination of the origins of the Federal Bureau of Investigation’s 2016 Russia investigation.
In case you’re wondering, yes, Trump has seen this WSJ report:
“The president now is re-exploring options for replacing Barr,” Axios is reporting this afternoon. Ironically, the Times has a story out today describing how Barr *did* try to help Trump out by having the DOJ take a hard look at Rudy Giuliani’s Ukraine material on Hunter Biden. Reportedly he deputized Scott Brady, a Trumpist U.S. Attorney based in Pittsburgh, to meet with Rudy and his lawyer and go over the material in January of this year. Brady in turn asked the FBI to follow up on what Rudy had, knowing full well how explosive a probe into Biden’s son’s finances could be in the middle of a presidential election campaign. The FBI was nervous about it for precisely that reason, fearing a repeat of Emailgate; “Justice Department policy typically forbids investigators from making aggressive moves before elections that could affect the outcome of the vote if they become public,” the Times notes. Sources also found it odd that Barr would ask Brady to handle the matter when there was already an investigation into Hunter Biden operating out of Delaware. The implication is that Barr gave it to him because he wanted an attack dog on it.
A passage of note:
The F.B.I. viewed the investigative steps into Mr. Biden that Mr. Brady sought as unwarranted because the Delaware inquiry involving money laundering had fizzled out and because they were skeptical of Mr. Giuliani’s material. For example, they had already examined a laptop owned by Mr. Biden and an external hard drive that had been abandoned at a computer store in Wilmington and found nothing to advance the inquiry.
It remains unclear what the current investigation into Biden’s “tax affairs” relates to. Failing to report Burisma income, perhaps? Another possibility from the Times: “Legal experts said that prosecutors could be examining how Mr. Biden obtained the money to pay hundreds of thousands of dollars in tax liens this year.” Did Hunter get a little windfall from someone to pay off his debts? From whom?
As for why Barr doesn’t want to appoint a special counsel, it could be that he thinks it’d be bad form to do it during a lame-duck period. He elevated Durham to special counsel a few weeks before the election, remember, not after. With just 40 days left in Trump’s presidency, maybe he thinks it’s unfair to make any sudden moves that would tie the hands of his successor at this point. It could also be that Barr recognizes that having the Trump administration name a special counsel for Hunter would actually make things easier on Joe Biden in a way. If Barr appoints the prosecutor who’s sniffing around Hunter, it’ll be easier for Democrats to believe that it’s a Trump-engineered political hit if Hunter ends up being charged. It’ll also effectively take the prosecution out of the hands of Biden’s DOJ since the special counsel is largely independent of normal DOJ oversight.
Without a special counsel, in other words, this lands squarely in the lap of Biden and his new AG. It’ll be up to them whether to prosecute the president’s son and there are no good options politically for them in making that decision. Imagine if the Biden DOJ finds no evidence of a crime and declines to charge Hunter with anything. That’ll look much shadier than if a Barr-appointed special counsel arrived at the same conclusion.
So, in a way, Barr declining to appoint a special counsel is helpful to the GOP. As, of course, is his refusal to appoint a special counsel to investigate election fraud. The overwhelming likelihood is that a special counsel would end up confirming that there’s no evidence of widespread fraud, giving Biden something to crow about: “A prosecutor appointed by Trump’s own Attorney General has now looked into this and found nothing amiss. It’s time to drop these fantasies that the election was stolen.” Barr may be thinking that it’s better to avoid that scenario and let Republicans entertain their illusions about a rigged election by declining to appoint someone who might disprove it.
DOJ regulations say that only the Attorney General can name a special counsel so in theory Barr’s decision on this is final. But Trump has two ways around that. One, of course, is to fire Barr and elevate some flunky to acting AG who’ll make the appointment instead. But another, bolder way would be for Trump to appoint the special counsel himself. That appointment would be challenged in court by pointing to the regs, noting that Barr never signed off on Trump’s decision. But the president would counter that by citing the unitary executive theory of Article II, insisting that all executive power is ultimately reposed in him. If the AG can appoint a special counsel, by definition the president can too. The AG’s powers derive from the president’s authority, after all.
I think Trump would choose the first option, not just because it’s more in keeping with his M.O. but because he wouldn’t want to run the risk of losing in court by choosing the second one. Exit question: If it’s true that Trump “has directed advisers to look for people who could serve in such a position,” as the WSJ claims in the excerpt up top, does that put pressure on Barr to make the appointment after all? If the president can directly appoint a special counsel — and he probably can, constitutionally — then Barr’s refusal to comply with Trump’s wishes might lead Trump to appoint, say, Joe diGenova. Or Rudy Giuliani! If Barr’s choice here when push comes to shove is between appointing a respected, competent, ethical prosecutor and the president usurping him by appointing some political crony, Barr should do the responsible thing and make the appointment himself.