Attorney General William Barr has given extra protection to the prosecutor he appointed to investigate the origins of the Trump-Russia probe, giving him the authority of a special counsel to complete the work without being easily fired.
Barr told The Associated Press news agency that he had appointed US Attorney John Durham as a special counsel in October under the same federal statute that governed Special Counsel Robert Mueller in the original Russia probe.
Barr said Durham’s investigation has narrowed to focus on the conduct of FBI agents who worked on the Russia investigation, known as Crossfire Hurricane.
Under federal regulations, a special counsel can be fired only by the attorney general and for specific reasons such as misconduct, dereliction of duty or conflict of interest. An attorney general must document such reasons in writing.
The FBI in July 2016 began investigating whether the Trump campaign was coordinating with Russia to sway the outcome of the presidential election. That probe was inherited nearly a year later by Mueller, who ultimately was unable to find enough evidence to charge Trump or any of his associates with conspiring with Russia.
But the early months of the investigation, when agents obtained secret surveillance warrants targeting a former Trump campaign aide, have long been scrutinised by the president and other critics of the probe who have said the FBI made significant errors.
An inspector general report last year backed up that criticism but did not find evidence that mistakes in the surveillance applications or other problems with the probe were driven by partisan bias.
Barr said he decided “the best thing” would be to appoint the investigators of the investigation “under the same regulation that covered Mueller, to provide Durham and his team some assurance that they’d be able to complete their work regardless of the outcome of the election”.
President-elect Joe Biden’s transition team did not immediately comment on the appointment.
In a statement, House of Representatives Judiciary Committee chairman Jerry Nadler, a Democrat, decried the appointment as a “distraction”.
“This order only further erodes the credibility of the Justice Department under Attorney General Barr’s tenure,” Nadler said.
“This order is one more desperate attempt to feed President Trump’s fixation on events that have been investigated over and over again, including by the department’s independent inspector general,” he said.
The current investigation, a criminal probe, had begun very broadly but has since “narrowed considerably” and now “really is focused on the activities of the Crossfire Hurricane investigation within the FBI,” Barr said.
He said he expected Durham would detail whether any additional prosecutions will be brought and make public a report of the investigation’s findings.
In an October 19 order, obtained by the AP, Barr said Durham is authorised “to investigate whether any federal official, employee or any person or entity violated the law in connection with the intelligence, counter-intelligence or law enforcement activities” directed at the 2016 presidential campaigns, anyone associated with the campaigns or the Trump administration.
A senior Justice Department official told the AP that although the order details that it is “including but not limited to Crossfire Hurricane and the investigation of Special Counsel Robert S Mueller III,” the Durham probe has not expanded.
The official said that line specifically relates to FBI personnel who worked on the Russia investigation before the May 2017 appointment of Mueller, a critical area of scrutiny for both Durham and for the Justice Department inspector general, which identified a series of errors and omissions in surveillance applications targeting one former Trump campaign associate.
The focus on the FBI, rather than the CIA and the intelligence community, suggests that Durham may have moved past some of the more incendiary claims that Trump supporters had hoped would yield allegations of misconduct, or even crimes — namely, the question of how intelligence agencies reached their conclusion that Russia had interfered in the 2016 election