Charlie Savage’s Twitter Archive—№ 16,097

Seeing folks portraying it as a problem or gotcha that Garland appointed Weiss – a sitting US attorney – special counsel even though a 1999 regulation for special counsels has a provision that envisions them being appointed from outside government. Here's an explanation. /1
Permalink On twitter.com ♻️ 152 Retweets ❤️ 491 Favorites 2023 Aug 12 Mood -2 🙁

…in reply to @charlie_savage
Takeaway up front: that part of the reg hasn't been understood to impose a controlling limit. It’s a tell that a commentator is not a credible & good-faith source of info if he doesn’t mention that Durham was *also* a sitting US attorney when Barr made him special counsel. /2
Permalink On twitter.com ♻️ 67 Retweets ❤️ 312 Favorites 2023 Aug 12 Mood -1 🙁

…in reply to @charlie_savage
An attorney general’s legal authority to appoint someone to run a special investigation doesn’t come from the regulation. It comes from statutes enacted by Congress. Those laws don’t say that appointee has to come from outside government. /3
On twitter.com ♻️ 49 Retweets ❤️ 244 Favorites 2023 Aug 12 Mood +2 🙂

…in reply to @charlie_savage
DOJ wrote the reg in 1999 to replace the lapsed independent counsel law, seeking to recreate some protections from interference for inquiries that raise a conflict of interest, but w/out problems both parties saw in the Iran-Contra and Starr probes./4 ecfr.gov/current/title-28/chapter-VI/part-600
Permalink On twitter.com ♻️ 24 Retweets ❤️ 174 Favorites 2023 Aug 12 Mood -4 🙁

…in reply to @charlie_savage
The reg has different provisions. 600.3 includes the statement “The Special Counsel shall be selected from outside the United States Government.” /5
Permalink On twitter.com ♻️ 18 Retweets ❤️ 134 Favorites 2023 Aug 12 Mood +1 🙂

…in reply to @charlie_savage
The provisions of the reg that create protections from interference for a special counsel and impose certain responsibilities on that position are later in the reg./6
Permalink On twitter.com ♻️ 18 Retweets ❤️ 133 Favorites 2023 Aug 12 Mood 0

…in reply to @charlie_savage
Garland invoked his statutory authority to appoint Weiss to run the Hunter inquiry, then decreed that the portions of the special counsel reg that provide protections/duties would apply. He didn't appoint him pursuant to the reg or invoke 600.3. Barr did the same w/ Durham./7
Permalink On twitter.com ♻️ 34 Retweets ❤️ 186 Favorites 2023 Aug 12 Mood +1 🙂

…in reply to @charlie_savage
In fact, it is not unusual for a special investigator referred to as a “special counsel” to depart from aspects of what the Reno DOJ envisioned in drafting the reg in 1999. The reg has not proved to be a good fit for the subsequent lived experience./8
Permalink On twitter.com ♻️ 18 Retweets ❤️ 145 Favorites 2023 Aug 12 Mood +4 🙂

…in reply to @charlie_savage
For example, in 2003, when Acting AG Jim Comey named a sitting US attorney, Pat Fitzgerald, “special counsel” for the Valerie Plame affair, he didn’t invoke the reg at all. Comey invoked statutory authority & simply delegated AG powers to Fitz./9 justice.gov/archive/osc/documents/2006_03_17_exhibits_a_d.pdf
Permalink On twitter.com ♻️ 20 Retweets ❤️ 148 Favorites 2023 Aug 12 Mood +1 🙂

…in reply to @charlie_savage
The reg also contemplates special counsels being appointed for "criminal" probe. In 2017, Rosenstein named Mueller as s.c. for the Russia probe – a counterintelligence inquiry. One again, R invoked statutory authority & said only the protections/duties part of the reg applied./10
Permalink On twitter.com ♻️ 17 Retweets ❤️ 134 Favorites 2023 Aug 12 Mood -2 🙁

…in reply to @charlie_savage
And, as noted, Barr’s naming of then-sitting US attorney John Durham as special counsel to investigate the Russia inquiry was similarly structured – invoke statutory to appoint, then say only the protective and duties portions of the reg apply./11 justice.gov/d9/fieldable-panel-panes/basic-panes/attachments/2021/02/26/durham.order_.pdf
Permalink On twitter.com ♻️ 25 Retweets ❤️ 149 Favorites 2023 Aug 12 Mood 0

…in reply to @charlie_savage
Another way the reg hasn't worked out as envisioned is that the idea was to get rid of big public reports at the end and have s.c.’s do confidential reports only for the attorney general describing charging/declination decisions. This is from Janet Reno testimony about the reg/12
Permalink On twitter.com ♻️ 22 Retweets ❤️ 135 Favorites 2023 Aug 12 Mood +1 🙂

…in reply to @charlie_savage
But Mueller wrote a big narrative report intended for public consumption anyway. So did Durham. Garland said yesterday that he will release as much as possible of Weiss's eventual report on Hunter Biden. So that part of the 1999 vision is basically kaput, too. /end
Permalink On twitter.com ♻️ 24 Retweets ❤️ 191 Favorites 2023 Aug 12 Mood +2 🙂

…in reply to @charlie_savage
P.S. Put another way, the phrase "special counsel" doesn't have a defined meaning. The reg doesn't & can't take away the attorney general's statutory authority to appoint special investigators. It just sets up a system for one kind that the AG could choose to use./more
Permalink On twitter.com ♻️ 35 Retweets ❤️ 190 Favorites 2023 Aug 12 Mood +3 🙂

…in reply to @charlie_savage
An AG could appoint a special investigator w/out the reg at all--like Fitzgerald. AGs have been incorporating the reg's protective procedures in appointing orders for convenience/familiarity, but could just as easily paste those same words in the orders w/out referencing the reg.
Permalink On twitter.com ♻️ 11 Retweets ❤️ 81 Favorites 2023 Aug 12 Mood 0