On December 21, 2020, the Attorney General delegated certain authority to use classified information to the Special Counsel.[1]
After the inauguration of President Biden, Attorney General Garland met with the Office of Special Counsel (“OSC” or “the Office”). The Office very much appreciates the support, consistent with his testimony during his confirmation hearings, that the Attorney General has provided to our efforts and the Department’s willingness to allow us to operate independently.
The Special Counsel structured the investigation in view of his power and authority “to exercise all investigative and prosecutorial functions of any United States Attorney.”[2] Like a U.S. Attorney’s Office, the Special Counsel’s Office considered in the course of its investigation a range of classified and unclassified information available to the FBI and other government agencies. A substantial amount of information and evidence was immediately available to the Office at the inception of the investigation as a result of numerous congressional investigations[3] and Special Counsel Mueller’s investigation. The examinations by the Office of the Inspector General (“OIG”) of the Crossfire Hurricane investigation, the Foreign Intelligence Surveillance Act (“FISA”) applications targeting Carter Page, and other matters provided additional evidence and information,[4] as did an internal report prepared by the FBI’s Inspection Division.[5] The Office reviewed the intelligence, counterintelligence, and law-enforcement activities directed at the 2016 Trump campaign and individuals associated either with the campaign or with the Trump administration in its early stages. The Office structured its work around evidence for possible use in prosecutions of federal crimes (assuming that one or more crimes were identified that warranted prosecution). The Office exercised its judgment regarding what to investigate but
- ↑ Office of the Att’y Gen., Order No. 4942-2020, Delegation to John Durham, Special Counsel, Authority to Use Classified Information (Dec. 21, 2020). The Special Counsel has not used this authority.
- ↑ 28 C.F.R. § 600.6.
- ↑ See, e.g., Senate Select Committee on Intelligence, S. Rep. No. 116-290, 116th Cong., 2d Sess. (2020) (hereinafter “SSCI Russia Report”).
- ↑ See OIG, U.S. Department of Justice, Review of Four FISA Applications and Other Aspects of the FBI’s Crossfire Hurricane Investigation at xiii–xiv, 414 (Dec. 8, 2019) (redacted version) (hereinafter “OIG Review” or “Redacted OIG Review”), https://www.justice.gov/storage/120919-examination.pdf; OIG, U.S. Department of Justice, Management Advisory Memorandum for the Director of the Federal Bureau of Investigation Regarding the Execution of Woods Procedures for Applications Filed with the Foreign Intelligence Surveillance Court Relating to U.S. Persons (Mar. 30, 2020) (hereinafter “OIG Management Advisory Memorandum”); OIG, U.S. Department of Justice, Audit of the Federal Bureau of Investigation’s Execution of Its Woods Procedures for Applications Filed with the Foreign Intelligence Surveillance Court Relating to U.S. Persons (Sept. 2021) (hereinafter “Audit of 29 Applications”).
- ↑ FBI Inspection Division, Internal Affairs Section, Closing Electronic Communication for Case ID # [redacted] (Nov. 15, 2021) (hereinafter “Inspection Division Report” or “FBI Inspection Division Report”).
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