The New York Times - USA (2020-12-02)

A18 N THE NEW YORK TIMES NATIONALWEDNESDAY, DECEMBER 2, 2020

Transition in WashingtonPreparations and Legal Battles

WASHINGTON — Attorney
General William P. Barr revealed
on Tuesday that he had bestowed
special counsel status on John H.
Durham, the prosecutor he as-
signed to investigate the officials
who conducted the Trump-Russia
inquiry — setting the stage to
leave him in place after the Biden
administration takes over.
In a letter to Congress, Mr. Barr
disclosed that he had secretly ap-
pointed Mr. Durham as a special
counsel on Oct. 19, before the elec-
tion. The action gives Mr. Durham
the same independence and pro-
tections against being fired that
had been enjoyed by Robert S.
Mueller III, the former special
counsel who eventually oversaw
the Russia investigation.
“In advance of the presidential
election, I decided to appoint Mr.
Durham as a special counsel to
provide him and his team with the
assurance that they could com-
plete their work, without regard to
the outcome of the election,” Mr.
Barr wrote.
The White House did not know
about Mr. Durham’s appointment
until Mr. Barr made his public
comments on Tuesday, an official
said.
Mr. Durham never fulfilled
President Trump’s and his sup-
porters’ expectations that he
would bring to light some signifi-
cant wrongdoing against the pres-
ident before the election. But the
step appeared likely to create a
headache for whoever Mr. Biden
appoints as attorney general, who
would take over supervision of Mr.
Durham’s continuing work.
Mr. Barr also empowered Mr.
Durham to hunt for crimes not
only during the early stages of the
Trump-Russia investigation that
began in July 2016, which has
been his focus, but also during the
period after Mr. Mueller took over
that inquiry in May 2017 — mak-
ing him, in effect, a special counsel
for the special counsel.
Representative Adam B. Schiff,
Democrat of California and the
chairman of the House Intelli-
gence Committee, defended the
legitimacy of the Russia investi-
gation and condemned Mr. Barr’s
move as an abuse of the special
counsel power “to continue a polit-
ically motivated investigation
long after Barr leaves office.”
But Senator Lindsey Graham,
Republican of South Carolina and
the chairman of the Senate Judi-
ciary Committee, praised the
move and issued a not-so-veiled
warning that Republicans would
paint any Biden administration at-
tempt to close Mr. Durham’s in-

vestigation as hypocrisy after

Democrats spent years defending

Mr. Mueller from Mr. Trump’s

open desire — and unsuccessful

attempt — to fire him.

“I hope my Democrat col-

leagues will show Special Counsel

Durham the same respect they

showed Special Counsel Mueller,”

Mr. Graham added. “This impor-

tant investigation must be al-

lowed to proceed free from politi-

cal interference.”

A special counsel has essen-

tially the same powers as a U.S. at-

torney and remains subject to an

attorney general’s control, unlike

past so-called independent coun-

sels who, under a defunct law, in-

vestigated scandals like the Rea-

gan administration’s Iran-contra

affair and President Bill Clinton’s

Whitewater land deal and his dal-

liance with Monica Lewinsky.

Still, Justice Department regu-

lations give special counsels day-

to-day independence as they pur-

sue their assigned jobs, and they

are protected from arbitrary fir-

ing by a provision that says they

may be removed only “for miscon-

duct, dereliction of duty, incapac-

ity, conflict of interest or for other

good cause, including violation of

departmental policies.”

An attorney general may over-

rule a special counsel on major

steps like whether to charge

someone with a crime, but the de-

partment must eventually dis-

close that dispute to Congress.

Mr. Barr’s memo was broadly

written and vague. It did not iden-

tify any suspected crime that

could serve as a predicate for a

continuing criminal investigation,

or any particular person whom

Mr. Durham was to focus on. Nor

did it claim a foreign threat that

would constitute any separate

counterintelligence basis for an

inquiry, as with the Trump-Russia

investigation.

Mr. Barr also directed Mr.

Durham to write a report detailing

his findings that would be in-

tended for public consumption,

echoing the document Mr. Muel-

ler compiled about Russia’s elec-

tion interference and the Trump

campaign, as well as Mr. Trump’s

efforts to obstruct that inquiry.

The special counsel regulations

do not envision such a report.

Mr. Barr’s appointment of Mr.

Durham paralleled the appoint-

ment of Mr. Mueller in another

way: Both were pre-existing in-

vestigations with an aspect that

fell outside the scope of the special

counsel regulations. So Mr. Barr

and Rod J. Rosenstein, the deputy

attorney general who appointed

Mr. Mueller, made the appoint-

ments under a different authority

and then directed that certain

parts of the special counsel regu-

lations would apply to that posi-

tion.

Specifically, the regulations are

written for appointing someone to

run a criminal investigation, but

Mr. Mueller was inheriting a coun-

terintelligence inquiry. The regu-

lations also envision appointing

someone from outside the Justice

Department as special counsel,

but Mr. Durham is the sitting U.S.

attorney for Connecticut.

Because Mr. Durham was not

appointed pursuant to the special

counsel regulation, it is possible

the next attorney general could

rescind Mr. Barr’s directive that

special counsel rules would apply

to him, then end his inquiry with-

out any finding of misconduct.

That was also a theoretical possi-

bility for Mr. Mueller, but it did not

matter for most of the Russia in-

vestigation because Mr. Rosen-

stein himself had voluntarily

adopted the rules and remained in

charge.

Still, said Samuel Buell, a Duke

University law professor and for-

mer federal prosecutor, “I sup-

pose the calculation is that there is

a political cost” if a Biden adminis-

tration attorney general were to

try to shut down Mr. Durham’s

work as a special counsel.

Mr. Barr had assigned Mr.

Durham last year to conduct a “re-

view” of actions taken by the F.B.I.

and other national security offi-

cials in the early stages of the Rus-

sia investigation. The Justice De-

partment later said his work had

evolved into a criminal investiga-

tion, and Mr. Barr’s letter to Con-

gress said that status was “ongo-

ing.”

But while Mr. Durham has

looked into a number of issues in

search of evidence to bolster Mr.

Trump’s oft-stated declaration

that a “deep state” plotted to sabo-

tage him, it is not clear what, if

anything, he has found. To date,

the only criminal prosecution he

has brought was by striking a plea

deal with Kevin Clinesmith, a for-

mer lower-level F.B.I. lawyer. He

had doctored an email from the

C.I.A. when the bureau was pre-

paring to apply for renewal of a

wiretap order targeting a former

Trump campaign aide with links

to Russia, Carter Page.

The alteration of the C.I.A.

email by Mr. Clinesmith, who has

not yet been sentenced, prevented

an F.B.I. colleague from realizing

that the application — and prior it-

erations — omitted a relevant

fact: Mr. Page had discussed with

the C.I.A. some of his interactions

with Russians, potentially making

his pattern of such contacts look

less suspicious. But a separate in-

vestigation by the Justice Depart-

ment’s inspector general, Michael

E. Horowitz, uncovered that issue,

along with other ways the F.B.I.

botched the applications — not

Mr. Durham.

Mr. Buell argued that if Mr.

Durham had found something

concrete but had been holding it

back to avoid influencing the elec-

tion, now would be an appropriate

time to reveal it.

“You might appoint someone in-

formally, as they did here, to look

into something, but you wouldn’t

go to a special-counsel level un-

less you had some higher level of

confidence that there was likely to

be something there,” he said. “It’s

not clear — does Barr now think

that? Or is he just trying to keep

Durham in position after he is no

longer attorney general?”

An investigator was

given special counsel

status on Oct. 19.

Barr Moved to Entrench Scrutiny of the Russia Inquiry

John H. Durham has been leading a Justice Department review

of the officials involved in the Trump-Russia investigation.

BOB CHILD/ASSOCIATED PRESS

By CHARLIE SAVAGE

Katie Benner contributed report-
ing.

said on Capitol Hill.
Mr. Barr had been mostly silent
since the election, but some Re-
publicans privately pushed him to
publicly rebut Mr. Trump, accord-
ing to a person told of those con-
versations. His comments may
have been prompted by Mr.
Trump’s increasingly specious
election claims; the president
suggested on Sunday that the Jus-
tice Department and the F.B.I.
may have played a role in an elec-
tion fraud.
Mr. Barr took particular aim at
a widely discredited conspiracy
theory promoted by the presi-
dent’s legal team involving ma-
chines manufactured by Domi-
nion Voting Systems, a company
that sells voting hardware.
“There’s been one assertion
that would be systemic fraud, and
that would be the claim that ma-
chines were programmed essen-
tially to skew the election results.
And the D.H.S. and D.O.J. have
looked into that, and so far, we ha-
ven’t seen anything to substanti-
ate that,” Mr. Barr said, referring
to the Department of Homeland
Security and his own department.
A Justice Department spokes-
woman declined to comment on
whether Mr. Barr discussed his
findings on voter fraud with the
White House before he made his
public comments on Tuesday.
Mr. Barr’s acknowledgment of
the election results was an about-
face from his posture during the
campaign. But he spoke out only
after the president spent weeks
promoting baseless assertions
about the election outcome and
long after department lawyers as-
signed to monitor elections for
signs of fraud told Mr. Barr that
they had found no evidence of sub-
stantial irregularities.
And even as Mr. Barr distanced
himself from the president’s elec-
tion claims, the Justice Depart-
ment also announced a move cer-
tain to please Mr. Trump: Mr. Barr
has given additional protections
to John H. Durham, the federal
prosecutor whose examination of
the Russia investigation Mr.

Trump had embraced. The move

makes it more difficult for the Bi-

den administration to fire Mr.

Durham without providing evi-

dence of misconduct.

The president’s allies immedi-

ately pushed back on Mr. Barr’s

election assessment. Trump cam-

paign lawyers complained that

the Justice Department investiga-

tions had been anemic.

Rudolph W. Giuliani, a lawyer

for Mr. Trump who has been at the

forefront of promoting his election

conspiracy theories, said that his

team had gathered evidence of il-

legal voting in six states, backed

up by sworn witness statements,

and that the Justice Department

had failed to investigate what the

team had uncovered.

“As far as we know, not a single

one has been interviewed by the

D.O.J.,” Mr. Giuliani said in a state-

ment. “The Justice Department

also hasn’t audited any voting ma-

chines or used their subpoena

powers to determine the truth.”

Mr. Barr had given prosecutors

the authority to examine allega-

tions by Mr. Trump’s allies of voter

ineligibility in Nevada and im-

properly dated mail-in ballots in

Pennsylvania. The results of those

investigations have not been pub-

licly disclosed, but Mr. Barr’s re-

marks suggested that any impro-

priety was too insignificant to

change the election results.

“Most claims of fraud are very

particularized to a particular set

of circumstances or actors or con-

duct. They are not systemic alle-

gations, and those have been run

down; they are being run down,”

he said. “Some have been broad

and potentially cover a few thou-

sand votes. They have been fol-

lowed up on.”

The Trump campaign and its

surrogates have filed dozens of

lawsuits in battleground states

that have offered an array of at-

tacks on the election results: ar-

guing that mail-in ballots were il-

legally used, that absentee ballots

were improperly counted and that

poll challengers were denied

proper access to monitor counts.

Some of the lawsuits have ech-

oed Mr. Giuliani’s talk of conspira-

cies that foreign powers like Vene-

zuela worked with corrupt Ameri-

can officials to manipulate voting

machines. Others made much

smaller claims, contesting the va-

lidity of tiny batches of as few as

60 ballots.

But none, at least so far, have

won Mr. Trump anything more

significant than the ability to

move his poll observers from 10

feet to six feet away from workers

counting votes in Pennsylvania.

The campaign and its allies have

now lost nearly 40 cases across

the country as judge after judge —

including some appointed by Mr.

Trump — discredited the efforts

as lacking both legal merit and

convincing proof.

Mr. Barr also suggested that

lawsuits or audits by elections of-

ficials served as remedies for sus-

picions of election irregularities,

not criminal inquiries. “There’s a

growing tendency to use the crim-

inal justice system as sort of a de-

fault fix-all, and people don’t like

something, they want the Depart-

ment of Justice to come in and ‘in-

vestigate,’ ” Mr. Barr said in the

Associated Press interview.

Mr. Barr has potentially placed

himself in a precarious position

with Mr. Trump, who recently

fired Christopher Krebs, the sen-

ior cybersecurity official respon-

sible for securing the presidential

election, who prominently dis-

puted Mr. Trump’s false claims

that the presidency was stolen.

“I guess he is the next one to be

fired since he now, too, says there

is no fraud,” Senator Chuck Schu-

mer of New York, the top Senate

Democrat, said of Mr. Barr. The at-

torney general traveled to the

White House on Tuesday after-

noon, prompting speculation

about his future, but he was there

to attend a previously scheduled

meeting, a spokeswoman said.

In the months before the No-

vember election, Mr. Barr had

been one of the loudest voices

sounding alarms about wide-

spread fraud, claiming repeatedly

in speeches and interviews that

the potential for it was high and

that it posed a grave danger to the

election. Mr. Barr’s claims were

often false or exaggerated and

were widely refuted.

Predicting in September that

mail-in voting would lead to un-

precedented voter fraud, he called

his assertion “common sense.”

“I don’t have empirical evi-

dence other than the fact that

we’ve always had voting fraud,”

Mr. Barr said at the time. “And

there always will be people who

attempt to do that.”

His comments unnerved Demo-

crats and voting rights advocates

as he simultaneously relaxed Jus-

tice Department guidelines that

discouraged prosecutors from

taking investigative steps around

an election that could become

public and undermine Americans’

confidence in the results.

In the weeks before the election,

the Justice Department also made

the highly unusual move of releas-

ing details about voter fraud in-

vestigations, which fed Mr.

Trump’s narrative warning of vot-

ing irregularities in an effort to

erode voters’ faith in the outcome

of the race.

In Blow to Trump, Barr Finds No Fraud That Could Have Swayed Vote

From Page A

Attorney General William P. Barr took particular aim at a widely discredited conspiracy theory involving voting machines.

AL DRAGO FOR THE NEW YORK TIMES

Nicholas Fandos and Alan Feuer
contributed reporting.

WASHINGTON — The Penta-

gon policy official overseeing the

military’s efforts to combat the Is-

lamic State was fired on Monday

after a White House appointee

told him the United States had

won that war and that his office

had been disbanded, according to

three people briefed on the matter.

The ouster of the official, Chris-

topher P. Maier, the head of the

Pentagon’s Defeat ISIS Task

Force since March 2017, came just

three weeks after President

Trump fired Defense Secretary

Mark T. Esper and three other

Pentagon officials, and replaced

them with loyalists.

In a statement late Monday, the

Pentagon said that Acting De-

fense Secretary Christopher C.

Miller had accepted Mr. Maier’s

resignation and that his duties

would be folded into two other of-

fices that deal with special opera-

tions and regional policies. Those

offices are led by Ezra Cohen-Wat-

nick and Anthony J. Tata, two of

the Trump appointees who have

been promoted in the purge.

The Pentagon statement said

the transition reflected the suc-

cess of the U.S.-led effort to crush

the terrorist state that ISIS creat-

ed in big swaths of Iraq and Syria.

But Mr. Maier’s supporters say

he was summarily forced out of an

important but low-profile job that

required navigating the shoals of

Washington’s counterterrorism

bureaucracy as well as flying off

to combat zones, including north-

east Syria and Iraq, to work with

precarious partners on the ground

in the fight against the Islamic

State.

“Chris is a nonpartisan profes-

sional and carries years of institu-

tional knowledge on an exceed-

ingly complex set of issues,” Brett

H. McGurk, Mr. Trump’s former

special envoy to the coalition to

defeat the Islamic State, said in an

email. “It really makes no sense to

force out someone like that 50

days before a transition to a new

administration.”

Mr. Maier’s task force was re-

sponsible for overseeing policy

and strategy development as well

as international negotiations re-

garding the fight against ISIS.

Mr. Maier’s team was in the

midst of answering dozens of

questions from President-elect

Joseph R. Biden Jr.’s transition

aides about the status of terrorist

threats, relations with allies and

counterterrorism missions.

Deliberate or not, the move to

eliminate that central hub will al-

most certainly slow the flow of

counterterrorism information to

Biden transition aides in the com-

ing weeks, several officials said.

The Pentagon statement said

Mr. Miller thanked Mr. Maier for

his service. But a senior U.S. offi-

cial said relations were strained

between Mr. Maier and Mr. Miller.

Mr. Maier, 44, an Air National

Guard intelligence officer who has

worked in counterterrorism jobs

in Republican and Democratic ad-

ministrations for two decades, de-

clined to comment.

While Mr. Maier’s backers ex-

pressed dismay at the manner of

his dismissal — summoned mid-

day Monday by the White House

liaison officer at the Pentagon,

Joshua Whitehouse, and told to

clear out that day — they also crit-

icized the new Defense Depart-

ment leadership for playing to Mr.

Trump’s overly optimistic assess-

ment of the Islamic State’s status.

The officials spoke on the condi-

tion of anonymity because they

were not authorized to publicly

discuss the situation.

When Mr. Miller announced

last month that the United States

would draw down to 2,500 troops

in both Iraq and Afghanistan by

Jan. 15, he trumpeted the demise

of the Islamic State. “Thanks to

our more than 80 partners in the

Defeat-ISIS Coalition, we have de-

stroyed the ISIS caliphate and will

ensure they never again gain a

foothold to attack our people,” Mr.

Miller said in remarks on Nov. 17.

But two months earlier, in late

September, while still in his previ-

ous job as director of the National

Counterterrorism Center, Mr.

Miller struck a more sobering

note in testimony to a House com-

mittee: “ISIS has repeatedly dem-

onstrated the ability to rebound

from severe losses over the past

six years by relying on a dedicated

cadre of veteran midlevel com-

manders, extensive clandestine

networks, and downturns in CT

pressure to persevere,” referring

to counterterrorism pressure.

Other counterterrorism offi-

cials estimate that the Islamic

State, despite having lost its terri-

torial control in Iraq and Syria,

still has as many as 10,000 guer-

rilla fighters there, and maintains

resilient affiliates across East and

West Africa and Afghanistan.

By ERIC SCHMITT

and ADAM GOLDMAN

Leader of ISIS Task Force

Ousted in Pentagon Purge

Transition comes as

officials are replaced

with Trump loyalists.