John Durham's vacuous report: A fitting end to Bill Barr's ugly legacy

After four years and millions of taxpayer dollars, special counsel John Durham, appointed by former Attorney General Bill Barr, has released his report. To be precise, the current attorney general, Merrick Garland, released the report, unexpurgated, unredacted and without comment or commentary. Durham is (or was) the independent counsel Barr appointed to conduct the investigation into the investigation by Robert Mueller, himself an independent counsel appointed under Barr's predecessor Jeff Sessions, into Russian involvement in the 2016 presidential election, among other things. The report the Durham team issued amounts to more than 300 pages of … well, not much of anything. Some criticisms of the FBI, most of which, according to FBI sources, had already been addressed. But no smoking gun, no vast Hillary Clinton-led liberal plot to undermine the Trump presidency.

What it did do, however, was to return our gaze back to Bill Barr, the instigator of this apparent waste of time and money. Back in January of this year — a lifetime in the Trump universe — revelations about Barr and his conduct as attorney general of the United States, an office he has held under two presidents, were back in the news, interrupting Barr's latest attempts to rehabilitate himself and his image.

In a Jan. 26 article in the New York Times, Charlie Savage, Adam Goldman and Katie Benner analyzed the relationship between Barr and Durham. Among the many transgressions catalogued are Barr's regular meetings with Durham, dinners, drinks, travels abroad together to gather information that was supposedly part of Durham's "independent" investigation, statements by Barr mischaracterizing the investigation and, among other things, contradicting the conclusions of the Department of Justice's own inspector general. All of these were seemingly purposeful failures to clear up the confused reportage around the entire mess. And although it was obvious long before the 2020 election that the Durham investigation had turned up nothing substantial, Barr waited until after the election to admit it. As it turns out, independent counsel No. 2 was not so independent.

Based on Barr's prior behavior, his conduct with Durham should have come as no surprise. Perhaps luckily for Barr, it was quickly eclipsed as a news item by the constant stream of juicier Trump-related matters: indictment in New York, looming indictments in Georgia and possibly elsewhere, Jan. 6-related convictions, revelations in the Dominion defamation lawsuit against Fox and, most recently, the E. Jean Carroll sexual assault and defamation case and its verdict in Carroll's favor. Not to mention the still-unfolding allegations in the litigation brought by Noelle Dunphy against Trump crony Rudy Giuliani, who was, for a moment, "America's mayor." Dunphy alleges, among other things, the sale of presidential pardons to benefit Giuliani and Trump (an allegation that reportedly elicited a wan "I don't know" from Barr).

I have written about Barr for Salon before, but that was before his latest attempts to "rehabilitate" himself. And before the extent of his relationship to John Durham was uncovered. Let's take a few minutes to review how we got here.

In the words of former Attorney General Ramsey Clark, the presidential appointee at the top of the Justice Department is supposed to be an "independent proponent of the rule of law." But the position of attorney general is, and likely has always been, a challenging one for a lawyer. It is full of conflicts, contradictions, divided loyalties and overlapping jurisdictions, as well as rife with separation of powers issues and a heavy dose of partisan politics, among other things. At the outset (the position was created in 1789), the attorney general was to be a part-time lawyer whose job was to advise others in government on the legality of their proposed actions or positions, and to represent the United States before the Supreme Court. But the client of the attorney general was and is not the president. Rather, the client is the United States of America itself.

How is the attorney general to function as an "independent proponent of the rule of law" while also a political appointee, hired by the president, one whose duties extend to the political, to policy, in their function as a member of the executive branch, and to law enforcement? The Supreme Court has acknowledged in another context the inherent difficulty of having the president control the appointment (and dismissal) of the attorney general. Thus the seeds of the mess we find ourselves in today were sown. 

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Attorneys general have had close personal and professional relationships with the presidents who appointed them since the first attorney general, Edmund Randolph, appointed by George Washington. Randolph was well-known to Washington; in fact, he was Washington's former aide-de-camp and his lawyer, as well as lawyer to other prominent Virginians. Roger Brooks Taney, who served as attorney general for two years during the presidency of Andrew Jackson, and later as chief justice of the Supreme Court, was known as a Jackson crony. Henry Stanbury, the attorney general under Andrew Johnson, resigned to lead the defense team in Johnson's impeachment trial, as did his successor, William Maxwell Evarts. Skipping forward a century, John F. Kennedy's choice for attorney general was his brother, Bobby, Nixon's choice was his law partner, John Mitchell, Reagan's choices were both close associates from his days in California politics, including the scandal-ridden Edwin Meese. And those are just a few examples.

The issues get particularly gnarly when controversies involve the president or the president's senior staff and advisers, as was the case with Andrew Johnson's impeachment as well as Watergate, Iran-Contra, Whitewater or the several and proliferating scandals around Donald Trump and his inner circle.  

After Watergate and Nixon's resignation, Congress moved to address this issue with the Ethics in Government Act, providing for the appointment of a special prosecutor, later denominated an independent counsel, to be appointed by a panel of federal judges at the request of the attorney general. After that statute lapsed, the Department of Justice adopted regulations providing for the appointment of a "special counsel" in specific cases, including several of those mentioned. The appointment (or dismissal) of such a counsel itself became both a legal and political issue, as in the now infamous "Saturday Night Massacre" of 1973 and again both with Trump's repeated threats against Mueller and Barr's appointment of Durham. 

Short of the appointment of an independent counsel, attorneys general since 1979 have promulgated rules limiting interactions between the Department of Justice and the other departments in the executive branch, the White House and Congress. The several attorneys general under Trump adopted no such rules, although arguably, the rules in place from the tenures of Eric Holder and Loretta Lynch under Barack Obama still applied to such contacts. The rules are mostly common sense cloaked in appropriate legalese and mostly procedural, leaving it to the AG or other senior officers at the DOJ to make case-by-case determinations as to what contacts are permissible. As Garland said in the July 21, 2021, memorandum setting forth the rules for his department, the intent is to ensure "adherence to the long-standing department norms of independence from inappropriate influences." 

Robert Mueller was appointed under the Department of Justice regulations to investigate Russian influence in the 2016 presidential election, a move which enraged not only Trump but also Barr, the once and future attorney general. In their view, the Mueller investigation was a "witch hunt," a conspiracy by intelligence and law enforcement agencies and a plot by the "deep state," all somehow masterminded by their favorite bête noire, Hillary Clinton. Barr famously "summarized" the conclusions of the Mueller report before its release, inaccurately characterizing the report as a near-total exoneration of Trump. Then, in a move that only a lawyer could love — or only a lawyer of Barr's distinctive type — he appointed Durham as a special counsel literally charged with investigating the investigation. 

The fact that Durham found no plot after four years of presumably-diligent digging is not surprising. Based on Barr's past behavior, I suppose his actions during and after the Durham investigation should also not be surprising. He did not even try to conceal his interference. You don't need a dictionary, an Ivy League education or a law degree to see that Barr's conduct undermines the very concept of independence and violates, in the crudest way, the entire purpose of the appointment of an independent counsel. It's about as far as it could possibly get from Ramsey Clark's conception of the attorney general as an independent proponent of the rule of law.

Future attorneys general will, we must hope, once again adhere to the norms established for the office and the duties of lawyers everywhere to serve their clients without improper influence from the outside. Most importantly, they must follow the law, particularly the laws established to ensure that very independence. Bill Barr's legacy has been to undermine all of that, and we must also hope we have heard the last of him. Barr served two presidents, and in some sense he did so faithfully. He failed to serve his primary clients, the people of the United States.