Attorney General William Barr was criticized by many Democrats Tuesday when he revealed that he has appointed John Durham as a special counsel to investigate the origins of the probe of alleged collusion between Russia and the 2016 Trump presidential campaign. But in 1987, a prominent Democratic U.S. senator wrote a strong argument in favor of appointing such special counsels.
The senator’s article in the North Carolina law review is titled “Shared Power under the Constitution: The Independent Counsel.” The byline on the article? Joseph R. Biden Jr.
The future president-elect wrote: “The need for a special counsel who is to some extent independent of the Attorney General and free of the conflicts of interest that exist when an Administration investigates alleged wrongdoing of its own officials has unfortunately been demonstrated several times in [the last] century.”
BARR APPOINTS JOHN DURHAM AS SPECIAL COUNSEL TO INVESTIGATE ORIGINS OF RUSSIA PROBE
Barr couldn’t have said it better himself.
In his article, Biden demanded the reauthorization of a law that created prosecutors who operated even more independently than will Durham, who also serves as the U.S. attorney for Connecticut.
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Biden explained in 1987 that the federal government needs independent counsels, even though the text of the Constitution may appear to vest the control of prosecution solely in the president, because of the conflict of interest created when high-ranking executive officials break the law.
“There are certain extraordinary moments of crisis when the people’s faith in the integrity and independence of their elected officials is caused to waiver,” Biden wrote. “These scandals tarnish the view that the Attorney General is an independent executive official who can be trusted to enforce the criminal law in the high offices of the government.”
To escape this conflict of interest, Biden argued, a special counsel must have the freedom to investigate a president, Cabinet officials, or the prosecutors or FBI agents themselves without fear of removal, limits on the scope of his or her inquiry, or reduced budgets and personnel (all of which work to control normal prosecutors).
“To restore the utmost public confidence in the investigation of criminal wrongdoing by high-ranking government officials, the appointment of a special prosecutor then becomes necessary,” Biden wrote.
Indeed, Biden thought an independent counsel so important that he wanted to place it virtually beyond all presidential control, unlike Durham, who requires the appointment of the attorney general, can be removed by the attorney general for cause, and can be fired by the president for any reason.
Biden should find it impossible to retreat from his 1987 words — at least if he wishes to conduct his presidency by deeply held principles, rather than simply turning like a weathervane in favor of the prevailing political winds.
Many liberals should find themselves in the same boat. When President Trump fired FBI Director James Comey in May 2017, Senate Minority Leader Chuck Schumer, D-N.Y., warned that if the Justice Department didn’t “appoint an independent special prosecutor, every American will rightly suspect that the decision to fire Director Comey was part of a cover-up.”
Other Democrats introduced legislation to make it virtually impossible to fire Special Counsel Robert Mueller, who conducted the probe that ultimately found nothing to allegations that Russia and the Trump campaign colluded to help Trump defeat Hillary Clinton in the presidential race.
As I explain in my book “Defender-in-Chief: Donald Trump’s Fight for Presidential Power,” legal conservatives have long opposed an independent counsel completely outside the control of the president.
In his greatest opinion, a lonely dissent in Morrison v. Olson (1988), Supreme Court Justice Antonin Scalia argued that an independent counsel violated the Constitution because it interfered with the president’s responsibility to “take Care that the Laws be faithfully executed.”
On the other hand, I argued that President Trump wisely refrained from firing Mueller even though he had the constitutional right to do so. As the gold standard for federal prosecutors, Mueller could render unassailable any judgment that Trump had never conspired with Russia. Which is exactly what happened.
Biden should follow Trump’s example. He should support Durham’s appointment not only to remain true to his 1987 views, but to also prove that he did nothing wrong.
Durham continues to investigate whether the FBI, Justice Department and Obama administration officials knowingly used the patently false allegations of Trump-Russian collusion to launch an intelligence campaign against the Republican 2016 presidential candidate.
Conducting electronic surveillance under the Foreign Intelligence Surveillance Act and deploying federal investigatory resources on false grounds is not only unprecedented (aside from President Richard Nixon in Watergate), but illegal.
Biden is not just considering whether to hire some of the officials who may have started the unfounded Russia investigation. The president-elect himself may have personal involvement.
On January 5, 2017, while the Obama administration was winding down and the Trump administration was preparing to enter office, then-Vice President Biden attended a White House meeting with President Obama where they discussed surveillance of Michael Flynn, Trump’s incoming national security adviser, with Acting Attorney General Sally Yates and Comey.
The officials were worried that Flynn had passed classified information in conversations with the Russian ambassador about economic sanctions. According to FBI notes of the meeting, Biden may have raised the idea that Flynn had violated the Logan Act, a law enacted in 1799 that makes it a crime for a private citizen to interfere with U.S. foreign policy. But the Logan Act has never served as the basis for a successful prosecution because it likely violates the right to free speech.
Critics claim that Biden raised the Logan Act as a pretext to investigate Flynn for political dirt to handicap the incoming Trump administration.
Contrary to claims that the Durham probe represents political score-settling on the part of Barr, several investigations have already shown that Obama intelligence and law enforcement officials abused the government’s broad surveillance powers to investigate the Trump campaign.
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The Obama administration officials relied on the outrageously false allegations of the Steele Dossier, which itself was cooked up by the rival Democratic presidential candidate Hillary Clinton.
The question is whether the Obama administration was simply duped due to incompetence or pursued the Trump-Russia investigation out of more nefarious, partisan motives. In appointing the special counsel, Barr has already reached the judgment that some criminal behavior may have occurred.
Durham has borne this out with one conviction already, and the Justice Department inspector general has called for criminal prosecution of Comey, among others.
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Biden arguably needs to be cleared by a Durham probe just as much as Trump needed to be cleared by the Mueller investigation.
The president-elect could do no worse than declaring that he agrees with the arguments he made in 1987 and commit to respecting Durham’s independence.
