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Note to Bill Barr: Only a Special Prosecutor Will Do

The opinions expressed by columnists are their own and do not necessarily represent the views of
AP Photo/J. Scott Applewhite

Recently it became public knowledge that Attorney General Bill Barr has tasked the top federal prosecutor in Connecticut, John Durham, to investigate the propriety and legality of federal efforts to surveil the Trump campaign in 2016. That the Obama administration demonstrated such enthusiasm for intelligence and law enforcement inquiries directed against the opposing party is itself troubling. As we all know by now, the evidence to support the intelligence community and the FBI's suspicions about the Trump campaign was also notably weak. For both of these reasons, a thorough investigation of the genesis of the Trump-Russia hoax is absolutely necessary and long overdue. Whether John Durham is the man to get to the bottom of all this, however, remains to be seen.


Durham has extensive experience with sensitive investigations of governmental corruption and criminality. He is respected by Republicans and Democrats alike. He is a Trump appointee, and thus is unlikely to sweep under the rug efforts to undermine the Trump campaign and administration. All this is in his favor.

The problem, however, is that this avenue — the assignment of a sitting federal prosecutor to look into potential abuses in the federal government's anti-Trump dragnet — has already been tried. In 2017 Attorney General Jeff Sessions tasked John Huber, the top federal prosecutor in Utah, to examine more or less the same set of issues. Huber has made, by all accounts, little progress.

Part of the problem is that Huber, like Durham, still has a day job. Being a U.S. Attorney is a big responsibility in itself. It is unclear that a person already so burdened can do justice to an assignment as consequential as determining whether, in effect, the current president of the United States, and his supporters, were wrongfully targeted, or even framed, by appointees of the previous president. On the answer to this question, lest we forget, may hang the future of American democracy. Shouldn't leading such an investigation therefore be a full-time job?

In addition, there is a basic question of equity. When Democrats suspected — wrongly — that Donald Trump and his campaign staff had conspired with Russia, Washington held its collective breath for two years as a special prosecutor was named, a crack team of prosecutors and investigators was assembled, and millions of dollars were spent, in order to find the truth and bring any malefactors to justice.


The potential crimes that Democrats are suspected of, though, are no less serious, in both criminal and political terms. If Obama appointees bent the machinery of our leading intelligence agencies, the FBI, the Department of Justice, the Department of State, and other federal agencies in order to scrutinize the opposition unfairly and to tarnish it as disloyal or treasonous — and they solicited the help of foreign governments and foreign intelligence agents to do so — then the “shoe” of corruption, collusion, and criminality may well be on the other foot. We owe it to the American people to find out whether this is the case.

Simply put, both sides in American politics stand accused of corrupting our institutions and working with foreigners to subvert our democracy. Both sides merit a presumption of innocence, yes — but both sides must also be fully subject to investigation, and the investigators must have all the tools necessary to reach the truth.

Lastly, Bill Barr's selection of John Durham to look into these matters can be criticized insofar as Durham is still working for Barr himself. It has become obvious in recent weeks that Democrats intend to paint Barr as a stooge of the “master criminal” Donald Trump and as “the president's defense lawyer.” Any allegations of wrongdoing, any indictments, or any prosecutions that Durham generates will therefore by spun by Democrats as the poisonous fruit of Bill Barr's personal and/or partisan vendetta against Democrats.


This is not to impugn the integrity of Bill Barr, but he is a Trump appointee. He literally works for President Trump, and Durham, in turn, works for him. Ergo, there is a compelling argument to be made that a politically sensitive investigation like the one at hand should not be conducted by a U.S. attorney, but instead by a special prosecutor, who enjoys at least a degree of independence. The alternative is to keep the inquiry “in house” and thus frankly to damage its legitimacy. That legitimacy will surely loom large if and when Obama appointees or leading Democrats are charged with felonies.

For all these reasons, Bill Barr should take the next step soon. He should accept that the stakes of the investigation into the genesis of the Trump-Russia hoax are sufficiently high, and the resources needed to see it through are so great, that only a special prosecutor will do.

Perhaps John Durham can become that special prosecutor. I hope so, because, when it comes to the feds and their attempted take-down of the Trump campaign, and subsequently the Trump presidency, our country needs justice and it needs closure. And it needs them both sooner rather than later.

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