Biden’s Special Counsel Problem

This past April, Attorney General William Barr launched an investigation into the origins of the FBI's investigation of Russian interference in the 2016 presidential election. In May, Barr tapped John Durham, the U.S. Attorney for the District of Connecticut, to assist in this investigation.

Recently, Barr disclosed that on Oct 19, he had secretly appointed Durham as a special counsel. As a result, Durham now has the same independence and protections once enjoyed by Robert Mueller, the special counsel appointed to oversee the 2017-2019 investigation of Russian interference.

With this appointment, Barr ties the hands of President-elect Joe Biden, who will now start his term under the shadow of an ongoing investigation that can reach back as far as the Obama-Biden administration. Interestingly, the move undermines Barr’s own efforts at promoting a presidency unshackled by such independent inquiries.

Unitary Executive Theory

Throughout his career, Barr has been a strident defender of the so-called “unitary executive theory.” Proponents of this theory point out that Article II of the U.S. Constitution states that “executive Power shall be vested in a President of the United States of America,” and as such, they claim that presidents have total authority over the executive branch. However, on more than one occasion, the Supreme Court has ruled that presidential authority over the executive branch is not absolute.

For instance, in 1935, the Supreme Court ruled that the president may not remove an appointee to an independent agency, such as the Federal Trade Commission, except for reasons Congress has provided by law. As such, although independent agencies are considered part of the executive branch, they exist outside of complete presidential control.

In the 1970s, the unitary executive theory was further weakened. As part of a federal criminal investigation into the Watergate burglary, President Richard Nixon was ordered to release certain tapes and other related materials. Nixon refused. His lawyers argued that the case brought against him should be dismissed, as the president is vested with all executive power, and as such, this was merely an intra-executive branch dispute. However, in 1974, the Supreme Court ruled that the president cannot use the office’s executive power to withhold evidence in a criminal trial.

Independent Counsels and Special Counsels

After the Watergate scandal, Congress considered legislation to make the Justice Department into an independent agency, in order to better insulate it from presidential influence. Eventually, Congress agreed to a somewhat modest reform bill, the Ethics in Government Act of 1978, which created the Office of Independent Counsel.

A few years later, the Reagan administration argued that this office was unconstitutional, as it was not answerable to the president, yet it was housed within the Justice Department, which is under the authority of the president. In 1988, the Supreme Court ruled that the Office of Independent Counsel was indeed constitutional, thereby upholding the ability of Congress to wrestle federal law enforcement authority from complete presidential control.

In 1999, the Ethics in Government Act, which had a sunset clause, needed to be renewed. By that point, however, both political parties had been humiliated by prior independent counsel investigations: Republicans were reeling from the Iran-Contra scandal, while Democrats were embarrassed by the Monica Lewinsky scandal. Ultimately, both parties decided to simply let the Ethics in Government Act expire, thereby shuttering the Office of Independent Counsel.

Later that year, Attorney General Janet Reno promulgated regulations authorizing the appointment of special counsels, which could replace independent counsels and be similarly protected from presidential influence. It’s important to emphasize, however, that unlike independent counsels, special counsels are authorized by Justice Department regulations—not an Act of Congress. As such, a president could, in theory, simply order the attorney general to revoke these regulations, and then have a special counsel removed, assuming of course that the president’s attorney general is sufficiently pliable. This is why it is problematic that presidents can hire and fire their attorneys general at will, unlike in the majority of states where state attorneys general are often independently elected and not answerable to the governor.

The Mueller Report and Durham’s Appointment

In 2017, President Donald Trump fired FBI Director James Comey. Just a week prior, Comey testified before the Senate Judiciary Committee that the FBI had begun investigating possible collusion between the Russian government and Trump associates. At the time, Barr publicly expressed his support of Trump’s decision to remove Comey.

Following Comey's dismissal, Deputy Attorney General Rod Rosenstein, acting on behalf of Attorney General Jeff Sessions, who had recused himself from any Trump campaign-related investigations, appointed Mueller as special counsel to investigate possible connections between the Trump campaign and the Russian government.

By 2018, it became apparent that Trump had considered having Mueller removed. Seemingly supportive of this, Barr sent an unsolicited memo to the Justice Department defending Trump by arguing that presidents have “complete authority to start or stop a law enforcement proceeding.” Eventually, Trump fired Sessions, later admitting that it was because he had failed to “have the wisdom or courage to stare down and end the phony Russia Witch Hunt.” Unsurprisingly, Barr was chosen as Sessions’ replacement.

When Mueller wrapped up his 448-page report in 2019, Barr wrote and released a 4-page summary of Muller’s “principal conclusions,” which appeared to be an attempt to mischaracterize Mueller’s findings in a way that favored Trump. In 2020, a Republican-appointed judge ruled that “[t]he Court cannot reconcile certain public representations made by Attorney General Barr with the findings in the Mueller Report,” which “call[s] into question Attorney General Barr’s credibility.”

The Durham investigation appears to be another attempt by Barr to discredit any and all investigations of Trump and his associates. By promoting Durham to a special counsel, Barr makes it difficult for Biden to limit or end the investigation of the investigation of Trump, particularly since, as Chairman of the Senate Judiciary Committee, Biden clearly articulated his support of special counsel independence. Ironically, however, by elevating Durham to a special counsel in order to shield the investigation from being shut down by Biden, Barr has also undermined his own efforts at constructing a strong, unitary presidency that wields absolute executive authority.

Joshua Holzer is an assistant professor of political science at Westminster College in Fulton, Missouri.