The New York Times is terrified of what Special Counsel John Durham has uncovered during his more than three-year investigation into intelligence and law enforcement agencies. There is no other explanation for why the outlet went from publishing “All the News That’s Fit to Print” to piloting a month-long probe to tarnish Durham and former Attorney General William Barr, only to follow a few days later with an op-ed parroting the nonsensical points.
The first swing at Barr and Durham came on Thursday when The New York Times’ leading Russia-collusion hoaxers, Charlie Savage, Adam Goldman, and Katie Benner, published “How Barr’s Quest to Find Flaws in the Russia Inquiry Unraveled.” As I detailed on Monday, the hit piece consisted of “one part chutzpah and two parts mendacity,” with the authors — among other things — declaring the special counsel’s investigation a failure even before Durham released his final report, and only then by ignoring the already public evidence of misconduct by members of the Crossfire Hurricane team.
The New York Times obviously planned a one-two punch, running on Monday an op-ed penned by editorial board member David Firestone, entitled “Bill Barr’s Image Rehab Is Kaput.” Firestone’s blow failed to land as well, with the former Times reporter and editor merely repeating many of the original misguided attacks on Barr.
For instance, Firestone referenced Savage, Goldman, and Benner’s reporting that Barr would regularly meet with Durham to discuss his progress and would advocate “on his behalf with intelligence officials,” with Firestone declaring such involvement verboten because “attorneys general are not supposed to interfere in a special counsel’s investigation.”
While Firestone avoided the more comical complaint Savage and his crew presented on Thursday — that Barr and Durham “sometimes dined and sipped Scotch together” — the premise that Barr acted inappropriately in regularly meeting with Durham to discuss his investigation is fatally flawed for two reasons.
First, Barr did not appoint Durham as a special counsel until Oct. 19, 2020, with Durham’s work from May 2019 until then unrelated to the regulations governing special counsel appointments. And the Times’ original reporting noted that those “weekly updates and consultations about his day-to-day work” were only “at times” and likely ended long before Barr appointed Durham as special counsel.
No Conflict of Interest
But even if Barr continued to meet regularly with Durham from Oct. 19, 2020, to when Barr departed as attorney general two months later, so what? Barr did not grant Durham the protections of a special counsel because of any conflict of interest that required Barr to avoid discussing the investigation with Durham.
While the pertinent regulation, 28 C.F.R. § 600.1, provides for the appointment of a special counsel when the attorney general determines a “criminal investigation of a person or matter is warranted” and the investigation or prosecution “would present a conflict of interest for the Department,” the relevant section also authorizes the naming of a special counsel when “other extraordinary circumstances” exist.
In appointing Durham as special counsel, Barr expressly stated it was “in light of the extraordinary circumstances relating to these matters,” and the public interest warranted Durham continuing his “investigation pursuant to the powers and independence afforded by the Special Counsel regulations.”
Because there was no conflict of interest underlying Barr’s appointment of Durham, there would be nothing nefarious about any conversations Barr had with Durham over the last two months of the probe. In fact, Barr could have micromanaged Durham on a daily basis and there would have been no impropriety.
The op-ed argues otherwise by claiming, “the whole point of the system is to isolate the prosecution of sensitive cases from the appearance of political meddling.” There is no special-counsel-for-sensitive-cases rule, however, and that Durham was investigating whether Crossfire Hurricane was political doesn’t make his investigation political.
Painting It Political
But that is precisely what The New York Times wants Americans to believe: that politics prompted Barr to appoint Durham, and politics pushed Durham to reach whatever negative conclusion he details in his final report. This “it was all political” narrative will provide the foundation for The New York Times and the other media outlets that pushed the Russia-collusion hoax to demand the public disregard the substance of Durham’s final report once it’s released.
To further that narrative, Firestone’s op-ed sought to cement a caricature of Barr as a political creature beholden only to Donald Trump. “During his 22 months in office, he allowed his Justice Department to become a personal protection racket for his boss, Donald Trump,” Firestone declared. The Times editorial board member then went on a question-begging journey through Barr’s service as attorney general and his return to private life.
Barr acted politically here, because he was acting political, Firestone’s logic went. Here, though, the former Attorney General was not acting political, seeking instead to salvage his legal and ethical reputation, by not acting political. But decreeing by fiat that politics motivated Barr or Durham does not make it so.
A Closed Loop
The op-ed further advanced the “it was all political” narrative by parroting several of Savage, Goldberg, and Benner’s charges. And as the Russia-collusion hoax proved, if you repeat innuendos and accusations often enough, the public will believe they are true.
Firestone also placed his imprimatur on the veracity of Thursday’s attack by telling readers, “The Times published the details of what really happened when Mr. Barr launched a counter-investigation into the origins of Robert Mueller’s report on the 2016 Trump campaign’s ties to Russia.” So that’s that. The Times told Americans what happened, so there’s no need to read further — and especially not the Durham report when it is released.
The Times’ efforts to preempt the special counsel’s report are already gaining ground. Sen. Dick Durbin, D-Ill., pledged on Monday that the Senate Judiciary Committee will review Durham’s investigation, premising the supposed need for a congressional inquiry solely on The New York Times’ reporting.
Sadly, we all know from the Russia-collusion canard what this means: The loop has been closed, and the circular reporting has begun. So now, as proof of the Times’ reporting on Barr and Durham, we have the fact that the Senate Judiciary Committee intends to investigate the special counsel probe.
Margot Cleveland is The Federalist’s senior legal correspondent. She is also a contributor to National Review Online, the Washington Examiner, Aleteia, and Townhall.com, and has been published in the Wall Street Journal and USA Today. Cleveland is a lawyer and a graduate of the Notre Dame Law School, where she earned the Hoynes Prize—the law school’s highest honor. She later served for nearly 25 years as a permanent law clerk for a federal appellate judge on the Seventh Circuit Court of Appeals. Cleveland is a former full-time university faculty member and now teaches as an adjunct from time to time. As a stay-at-home homeschooling mom of a young son with cystic fibrosis, Cleveland frequently writes on cultural issues related to parenting and special-needs children. Cleveland is on Twitter at @ProfMJCleveland. The views expressed here are those of Cleveland in her private capacity.