It’s not officially a special counsel, but it may as well be. Late yesterday, the Associated Press reported that Attorney General William Barr appointed a prosecutor to look into the origins of the FBI’s Operation Crossfire Hurricane. It comes not long after the release of Robert Mueller’s special counsel report and at the same time as a separate Inspector General probe into the same issues:
Attorney General William Barr has appointed a U.S. attorney to examine the origins of the Russia investigation and determine if intelligence collection involving the Trump campaign was “lawful and appropriate,” a person familiar with the matter told The Associated Press on Monday.
Barr appointed John Durham, the U.S. attorney in Connecticut, to conduct the inquiry, the person said. The person could not discuss the matter publicly and spoke to the AP on condition of anonymity. …
The inquiry, which will focus on whether the government’s methods to collect intelligence relating to the Trump campaign were lawful and appropriate, is separate from an investigation by the Justice Department’s inspector general. The agency’s watchdog is also examining the Russia probe’s origins and Barr has said he expects the watchdog report to be done in May or June.
That prompts a rather reasonable question: why not wait for Michael Horowitz to finish? Horowitz has proven himself to be an effective investigator with sufficient credibility to deal with the political minefield around Russiagate. Horowitz has already turned up evidence of serious problems in the FBI, having helped to get former deputy director Andrew McCabe fired and possibly prosecuted, and painting James Comey as arrogant and insubordinate. Horowitz has been working on the predicate for Crossfire Hurricane since at least March 2018 and already has US Attorney John Huber working with him.
If Horowitz is this close to wrapping things up, why not wait for Horowitz to report out a criminal referral and for Huber to act on it? That would make it much easier for Barr to explain Durham’s appointment. As it is, Barr will likely get accused of appointing Durham to cover for his own remarks about “spying” during testimony at the Senate Judiciary Committee. A few weeks might have avoided that, if Horowitz was truly that close. Perhaps Barr knows what Horowitz has already found and wants Durham to get a jump start on the case, but no one’s fleeing the country that wouldn’t have split after Mueller’s report destroyed the idea that there was evidence for any collusion with Russia.
Durham himself could be the answer to that question. Critics will have a tough time accusing Durham of being part of a political operation, though. If Barr wants a credible DoJ investigation into Crossfire Hurricane, he chose the right man for the job:
John H. Durham, the United States attorney in Connecticut, has a history of serving as a special prosecutor investigating potential wrongdoing among national security officials, including the F.B.I.’s ties to a crime boss in Boston and accusations of C.I.A. abuses of detainees. …
Mr. Durham, who was nominated by Mr. Trump in 2017 and has been a Justice Department lawyer since 1982, has conducted special investigations under administrations of both parties. Attorney General Janet Reno asked Mr. Durham in 1999 to investigate the F.B.I.’s handling of a notorious informant: the organized crime leader James (Whitey) Bulger.
In 2008, Attorney General Michael B. Mukasey assigned Mr. Durham to investigate the C.I.A.’s destruction of videotapes in 2005 showing the torture of terrorism suspects. A year later, Attorney General Eric H. Holder Jr. expanded Mr. Durham’s mandate to also examine whether the agency broke any laws in its abuses of detainees in its custody.
Durham is not the kind of prosecutor to let sleeping dogs lie, in other words. The AP notes in its assessment of Durham’s career that the Senate unanimously confirmed him to his current post last year, with both Connecticut Democrats (Richard Blumenthal and Chris Murphy) hailing him as a “fierce, fair prosecutor.” It will be difficult if not impossible for a man with this track record to get painted as some sort of toady to Barr and Donald Trump.
Plus, his selection for this assignment sends a tougher message from Barr than yet seen on the FBI’s performance. Durham isn’t a prosecutor one sends on a fishing expedition. He’s the prosecutor one sends when there’s a likelihood of finding actionable items to prosecute.
Durham’s impressive track record may be the reason why Barr acted before Horowitz and Huber officially finish their work, too. Republicans in Congress have repeatedly called for an appointment of a special counsel, during and after the Mueller investigation, to look into the FBI’s actions. Barr may know enough about what Horowitz has found to know that Durham’s services will be needed, but so will the appearance of independence and integrity. It’s possible that Barr wants to head off more specific calls for a special counsel before they have a chance to erupt. If so, then Durham’s new assignment is a smart decision.