William Barr may have already served as attorney general for a Republican president, but he can expect unprecedented scrutiny in his confirmation hearing Tuesday. The next attorney general will assume oversight of Special Counsel Robert Mueller’s investigation into Russian interference in the 2016 presidential campaign. Deputy Attorney General Rod Rosenstein, who has overseen the investigation since he appointed Mueller in May 2017, is expected to step down after Mueller writes his report on his investigation. That would leave the attorney general alone to decide what happens to the report.
The committee should make sure he answers the following five questions.
What are the appropriate boundaries of Mueller’s investigation, and what should the attorney general do if he thinks the special counsel is overstepping his bounds?
Barr wrote a memo to the leadership of the Justice Department, apparently offering his unsolicited opinion that a possible case against President Trump for obstruction of justice was based on a “fatally conceived” legal theory. The committee should ask Barr to clarify if these are his private views, or if they would also be his official opinions as attorney general.
What does Barr consider appropriate grounds for keeping Mueller’s report classified?
The regulations governing special counsels require that at the end of an investigation, the special counsel issue a report summarizing the findings of the investigation—but that report only has to be submitted to the attorney general. Considering the high profile of Mueller’s investigation and its potential to instigate or thwart presidential impeachment proceedings, Congress should get an explanation of what it would take for Barr to keep the report secret.
Under what circumstances could Congress subpoena Mueller’s report, and what would be the grounds for denying a subpoena?
If Barr did choose to keep all or parts of the report internal to the Justice Department, Congress could try to subpoena the report, possibly triggering a fight between the executive and legislative branches. To head off such a fight before it happens, the committee should get a clear explanation from Barr of whether or not he would comply with a subpoena, and if not, why not. Ideally, his answer would be an unqualified assurance, under oath, to give the report to Congress.
Should the White House have the authority to amend or change Mueller’s report?
One of President Trump’s lawyers, Rudy Giuliani, has suggested that the White House should have the opportunity to “correct” the Mueller report before its final publication. Congress should extract guarantees from Barr that he would not comply with a request from the White House to amend the report and that he would not consider himself or any other Justice Department employee bound by directions from the White House about what should or should not go in the report.
What are the legal and constitutional implications of a president offering a pardon to suborn obstruction of justice or perjury?
Perhaps the trickiest constitutional question raised by the Mueller investigation is whether or not there are limits to the president’s pardon power. In the Constitution, the power seems unlimited.. It’s possible the president could have offered pardons to Paul Manafort and/or other associates of his targeted by the Mueller probe, in exchange for their non-cooperation with prosecutors. Under normal laws, offering federal witnesses benefits in order to disrupt an investigation is a crime, but the president’s constitutional powers complicate the situation. Congress should clarify what responsibility the Justice Department is willing to take in limiting the pardon power, and what responsibility it holds itself.