The report of John Durham, Special Counsel on "Matters Related to Intelligence Activities and Investigations Arising Out of the 2016 Presidential Campaigns", released on May 12, 2023, includes a section explaining the reasoning on whether and when to recommend criminal charges against individuals.
(1) Durham explains that one of the reasons for declining prosecution is that:
. . . in examining politically-charged and high-profile issues such as these, the Office must exercise - and has exercised - special care. First, juries can bring strongly held views to the courtroom in criminal trials involving political subject matters, and those views can, in turn, affect the likelihood of obtaining a conviction, separate and apart from the strength of the actual evidence and despite a court's best efforts to empanel a fair and impartial jury." (p.5)
Let me put this in plain English. Any prosecution filed in Federal Court by Durham would have had to be in the District of Columbia or the Eastern District of Virginia. Durham recognizes that in a politically charged case in those districts you cannot convict anyone coded as anti-Republican. In 2020, Biden won 95% of the vote in DC and 81% in Arlington County, Virginia.
The reality is that the Federal workforce and the consultant/lobbyist blob that lives in these areas are heavily Democratic and have grown more radical over the years. This is a problem not just for the legal system, it goes to whether our democracy can work in a fair way.
It is entrenched and very astute on ways to preserve itself. For many reasons, the current system needs to be disrupted.
Article 2, Section 1 of the U.S. Constitution states,
The executive Power shall be vested in a President of the United States of America.
Because of the dominance of Democrats in federal service, a Democratic president can effectively implement their agenda, but a Republican president will not get deference from that same bureaucracy, which is protected by civil service and union rules and almost impossible to fire obstructionists. A few years ago I was seated at a ball game next to a guy who had recently retired as a senior economist in the Department of Agriculture. When I asked what his job involved, he replied, "making sure political appointees didn't make any important decisions." During the Trump administration, the president encountered continual obstruction on implementing his policies. Finally, and too late, like so many things he did, in October 2020 Trump issued an Executive Order creating created a new job category for federal employees in policy-related positions, dubbed Schedule F, that would exempt them from civil service protections and make them easier to remove. After all, if the President is vested with the executive Power under the Constitution, why should he not be able to control the executive branch, instead of leaving the Power with unelected bureaucrats?
However, to ensure that the bureaucracy remains dominated by Democrats, the Biden administration's Office of Personnel Management just issued final regulations that according to Government Executive online:
The new regulation — which will be published in the Federal Register for
public inspection on Thursday — seeks to provide 2.2 million federal
employees with defined protections that would make it difficult for a
future administration to re-apply the Trump policy, known as Schedule F.
Democrats understand how critical it is for the party to maintain control of the Federal government, regardless of which party controls the Presidency. This is an undermining of the constitutional authority of the President and is a direct attack on our democracy. It also ensures that those living in DC and surrounding districts will remain loyal to the party, with the consequences for our legal system outlined in the Durham Report.
In his hypocritical statement, released at the time of the OPM Rule, President Biden claimed:
"Today, my administration is announcing protections for 2.2 million
career civil servants from political interference, to guarantee that
they can carry out their responsibilities in the best interest of the
American people,"
It is precisely because Democratic control of the bureaucracy allows the party to politically interfere with our democracy when a president of the opposing party is in office that the new rule is being promulgated.
For more on the danger of the administrative state, read this piece by Philip Hamburger of Columbia Law School and founder of the New Civil Liberties Alliance, an organization I support.
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(1) For my other posts on the Durham Report go here.
