Last week Benjamin Wittes published a very long story at Lawfareblog concerning what he described as the “problem” represented by the now “Special Counsel” status of John Durham.

Among the issues highlighted by Wittes in his piece was the fact that the Order by Attorney General appointing Durham was drafted in a way to be nearly identical to the Order that appointed Robert Mueller, so any calls now by the Democrats to end the Durham investigation would directly contradict the demands made by many of those Democrats that the Mueller investigation be allowed to reach its own conclusion without interference from Barr as Attorney General.

In addition, Wittes calls “clever” the fact that Barr’s Order directs Durham to prepare a report to the Attorney General on his investigation, either final or interim, in such a format that it can be released to the public.  Such a public report is not called for under the Special Counsel regulations — which actually call for a “confidential” report to be prepared for the Attorney General.  But it was the Democrats who demanded that the Mueller Report be published.  It was the partisan Democrats in Mueller’s SCO who — without being asked to do so — wrote “Executive Summaries” at the start of each chapter of the Report which they expected would be released to the public while the balance of the report underwent review for purposes of redacting classified and other confidential material used in the Report.  Those summaries were intended to set the press “narrative” and become the “talking points” for everyone claiming Pres. Trump conspired with the Russians or obstructed the investigation.  AG Barr opted to not release the summaries until the entire Report was released.

Yesterday Director of National Intelligence John Ratcliffe commented publicly that he thinks Durham should provide an Interim Report in a format that may be publicly disclosed as a way to educate the public on the substance and severity of what he has uncovered so far — which Ratcliffe claims is substantial — and to provide some insulation for the investigation against demands by Democrats that the investigation be shut down. Demands by Democrats to shut the investigation would look all the more like an effort to cover-up Obama Administration wrongdoing if the substance of the investigation was known and judged to be significant.

If the Republicans control the Senate for the purposes of confirming nominations, the Republicans can enforce their demand that Biden’s Attorney General not interfere and that Durham’s Final Report be publicly released.

If the Democrats control the Senate, and Biden is able to shove through nominees regardless of what is said about protecting Durham’s investigation, the GOP leverage is severely reduced.  But the Democrats would still be forced to pay a price in terms of public perception.  They are already likely to lose the House in 2022.  If they have only a 50-50 hold on the Senate, and Biden’s AG fires Durham and closes the investigation, the ability of the Democrats to hold the Senate likely evaporates as well.

Wittes’ expression of concern in his article should be read as an encapsulation of the concerns of the left-wing liberal lawyer class in DC. Wittes is a longstanding close friend and admirer of Jim Comey, and pretty much everything published in Lawfareblog is a reflection of the thinking of the leftwing legal cognoscenti.  From the article, it is clear that Wittes’ friends are worried about how the presence of a Durham investigation looking back at the activities of a lot of Democrat partisans in the Obama DOJ might impact the activities of a Biden DOJ going forward — especially if any significant actors from the Obama years want to return to a Biden DOJ.

Primary among those concerned would be Sally Yates, rumored to be Biden’s choice for Attorney General. The problem for Yates is that she’s a potential witness in Durham’s investigation.  As Deputy Attorney General during the first six months of the Crossfire Hurricane investigation, and later acting Attorney General for the first few days of the Trump Administration, she had primary operational oversight over all DOJ components, including the FBI.  She had interactions with Comey and McCabe, and others in the White House before and after the 2016 election, as well as subordinates at the Justice Department, all of whom could be material to Durham’s inquiry.  She cannot “supervise” Durham’s investigation in the manner intended by the regulations under which he will operate because of her conflict  If she is Attorney General, it is likely that someone in the Justice Department other than her would actually be responsible for that task.  Who would be Joe Biden’s “Rod Rosenstein”?

I suspect where the battle will really be joined is the degree to which — if at all — Durham has extended his investigation to members of the Mueller Special Counsel’s Office — many of whom are serious Democrat partisans with ties to Obama and Clinton.  The Order appointing Durham made specific reference to the Mueller investigation being within the scope of Durham’s authority, but an unnamed DOJ official stated that the SCO investigation is only relevant with regard to actions by FBI personnel that extended over the timeline between when the FBI was handling the matter, and when it was transferred to the SCO after Mueller was named.

That might very well be true — now — but there have been issues raised about the actions and decision-making of SCO attorneys, including the disclosures about steps taken by them that could be viewed as “obstructive” behavior when they understood that there would likely be an investigation of them after their work with the SCO was completed.  Andrew Weissmann was kind enough to set forth in his book explicitly that they understood such an investigation was likely.  All their actions are then going to be evaluated against that backdrop — like wiping the data off their SCO phones, sometimes more than once.

An Interim Report published sometime in the next six weeks would be a huge factor in how the confirmation hearings for many Biden Administration nominees would proceed.

It would be out of character for John Durham to act in that manner rather than via indictments returned which make the factual findings of his investigation public in the form of a document he stands prepared to prove in a courtroom.

But, in this particular circumstance, if he is not prepared to move forward with such a case in the next six weeks, he may come to see that an Interim Report is the only way to safeguard his ability to finish what he has started.