Thread by @benjaminwittes

This is a very good point from @steve_vladeck. The appointment itself does not comply with the regs. If Barr can appoint someone pursuant to his general statutory appointment authority and apply the regs, it is very likely that the next attorney general can rescind the order.

https://twitter.com/steve_vladeck/status/1333880757153128455

That is, if the appointment is not bound by the regs, presumably rescinding the appointment is not either—and thus does not require good cause. If, by contrast, the appointment *is* bound by the regs, it violates them and thus can be rescinded as unlawful.

I think.

Ok, having looked at this a little more carefully now, here's a first read:
(1) The appointment is not made pursuant to the special counsel regulations but to Barr's general statutory authorities as attorney general:

(2) Barr then applies the special counsel regulations to the appointment:

Except that (3) he does NOT apply the provision of the special counsel regulations that govern the appointment of the special counsel and require that the SC come from outside the department. This provision is 28 CFR 600.3:

In other words, Barr used general statutory authority to appoint someone and then by order applied the regulations—including the regulations that limit the special counsel's removal—to that appointment.

Very clever.

Too clever, in fact. At least as I read it, and I'll be curious if @steve_vladeck disagrees with me, all the next attorney general has to do to get rid of this investigation—if he or she wants to do so—is rescind this Barr order applying the special counsel regulations to the SC.

At that point, Durham becomes a regular dude appointed by the attorney general to investigate some stuff and can be removed from that position at will. In the alternative, the next attorney general could simply amend this order and make clear that the entire slate of...

...special counsel regulations apply—and then remove Durham on grounds that his appointment is not, in fact, compatible with those regulations.

The best course, in the real world, may be to let him finish his probe. But if the next attorney general wants to end this thing, I think he or she will have ample latitude to do so.

That's all I got on quick inspection.