The Senate Judiciary Committee is conducting a confirmation hearing for attorney general nominee William Barr. The Bulwark will be posting updates throughout the day. The newest posts will be at the top.
3:28 p.m. The first round of the Senate Judiciary Committee’s confirmation hearing for attorney general nominee William Barr has ended. Throughout, Barr assured the committee that under his leadership the Justice Department would be independently dedicated to the cause of justice and that the Mueller investigation would be allowed to finish its work, while also repeatedly declining to make promises before Congress that he argued would unduly curtail the authority of the attorney general’s office. Thus he repeatedly rebuffed lawmaker’s attempts to extract promises on issues ranging from recusal on specific cases to his oversight responsibility of the nation’s federal attorneys. “The regulations and the responsibilities of the attorney general as the head of the agency vest that responsibility in the attorney general,” he told Sen. Mazie Hirono during the first round of questioning. “I’m not going to surrender the responsibilities of the attorney general to get the title. I don’t need the title.”
Some committee Democrats repeatedly attempted to paint Barr as a loyal would-be bag-man for President Trump, referencing a memo he sent to top Justice Department officials last summer. In that memo, in Barr argued that it had been lawful for the president to fire FBI director James Comey, even if he did so to impede a criminal investigation of which he was a subject, and that Mueller ought not attempt to indict him on obstruction of justice charges for that reason. During Tuesday’s hearing, however, Barr repeatedly insisted that his memo had been only a legal opinion arguing against prosecution according to a specific legal theory, one which there was no reason to believe Mueller was even considering making use of at all. Further, Barr repeatedly reassured the committee that he would only take action to halt Mueller’s work if he had reason to believe Mueller had somehow become grossly incompetent or otherwise incapable of pursuing his work further: “It would have to be pretty grave, and the public interest would essentially have to compel it, because I believe right now the overarching public interest is to allow him to finish.”
1:32 p.m. A revealing exchange between Barr and Delaware Democratic Sen. Chris Coons delved into the historical parallels between Mueller’s investigation and the Watergate investigation and the ways the laws surrounding special counsels have evolved since then. Coons first brought up the attorney general confirmation hearing of Elliot Richardson, whom Nixon had nominated for the position in 1973.
“Elliot Richardson reassured the country by making some important commitments during his confirmation hearing before this committee,” Coons said. “Then-senator Strom Thurmond asked Richardson if he wanted a special prosecutor who would ‘shield no one’ and prosecute this case regardless of who was affected in any way, shape, or form. Richardson responded ‘exactly.’ Do you want special counsel Mueller to shield no one and prosecute the case regardless of who is affected?”
“I want special counsel Mueller to discharge his responsibilities as a federal prosecutor and execute the judgment that he’s expected to exercise under the rules, and finish his job,” Barr replied.
Coons continued: “Sen. Kennedy followed up by asking Richardson if the special prosecutor would have the complete authority and responsibility for determining whom he prosecuted and at what location. Richardson said simply ‘yes.’ Would you give a similar answer?”
Barr replied that he would “give the answer that’s in the current regulations”—that contra the laws in place at the time of Watergate, the acting attorney general now has discretion to overrule the special counsel if he disagrees with them on a major investigative matter.
“A lot of water has gone under the dam since Elliot Richardson, and a lot of different administrations in both parties have experimented with special counsel arrangements, and the existing rules, I think, reflect the experience of both Republican and Democratic administrations and strike the right balance,” Barr said.
But if the president asked him to fire Mueller without good cause, or directly fired Mueller himself, would he resign rather than carry out that order?
“Assuming there was no good cause?” Barr replied. “I would not carry out that instruction.”
12:54 p.m. Sheldon Whitehouse used his time to criticize the current DoJ leadership. His most notable line of questioning was about Acting Attorney General Matthew Whitaker, whose disclosure forms indicated he received a payment close to $1 million from a source that does not identify its donors.
It started out innocently enough: How, asked Whitehouse, could the ethics office conduct a thorough review and make as recusal recommendation to Whitaker if they didn’t know the source of the payment?
Barr responded to the effect that it was wrong to assume the payment was nefarious.
That’s when things took a turn. Whitehouse, who has previously advocated RICO laws to prosecute climate change dissenters, suggested the DoJ could use its money laundering investigators to find the ultimate source of the payment.
Two groups the senator called out individually were the Foundation for Accountability and Civic Trust, an organization Whitaker led that advocated against Hillary Clinton during the 2016 campaign, and Donors Trust, a donor-advised charitable fund that gives to conservative causes.
Barr was just starting his response that, obviously, there were some First Amendment implications to investigating non-profit groups for basically no reason, when Whitehouse announced that his time had expired.
Another day, another way to prosecute one’s political opponents. Whitehouse probably did Barr a favor, because compared to the senator from Rhode Island, basically anyone looks reasonable.
12:25 p.m. Barr had an illuminating answer to a question from Dick Durbin. In a 2001 interview with the University of Virginia’s Miller Center, Barr said that some of the immigration policy he perused at attorney general was designed to secure votes in California for George H. W. Bush. Durbin asked Barr to explain how that’s the attorney general’s job.
Barr answered that the attorney general has three responsibilities. He enforces the law and maintains the rule of law. He also provides legal advice to the president and the Cabinet. Lastly, he’s a political appointee of the president, and he’s responsible for making policies that will help the administration be responsive to the public.
He didn’t mention what happens when those responsibilities collide, such as when the public wants something that violates the rule of law or the Constitution. Durbin didn’t ask.
Instead, Durbin moved on to ask Barr’s view of criminal justice reform. Barr said he adjusted sentencing reform, but that the “head of the snake” of drug and organized crime was outside the U.S. and that the administration needs to use its international leverage to address those problems.
11:53 a.m. In his questions for Barr, Vermont Democratic Senator Patrick Leahy zeroed in on what many Democrats see as the crucial ethics question for Barr’s appointment: If senior ethics officials recommend that Barr should recuse himself from the Mueller probe, will he commit to follow their recommendation?
“I will seek the advice of the career ethics personnel, but under the regulations I make the decision as the head of the agency as to my own recusal,” Barr responded. “I certainly would consult with them, and at the end of the day I would make a decision in good faith based on the laws, and the facts that are evident at that time.”
Barr went on to say that, if he were attorney general, it would be “unimaginable” that Mueller would ever give him reason to fire him for good cause. “But in theory, if something happened that was good cause, for me it would actually take more than that—it would have to be pretty grave, and the public interest would essentially have to compel it, because I believe right now the overarching public interest is to allow him to finish.”
Barr also strongly pushed back on Leahy’s claims that he has been “very critical of the Russia probe” and that his memo “looked like a job application.”
“That’s ludicrous,” Barr protested. “If I wanted the job, and was going after the job, there are many more direct ways of me bringing myself to the president’s attention than writing an 18-page legal memorandum and sending it to the Department of Justice.”
Later, in questions with Texas Republican Senator John Cornyn, Barr re-emphasized his claim that he would work hard to maintain the independence of the Justice Department.
“Over the years, a lot of people, some politicians have come up and said, ‘You know, I’m going for the attorney general position in this administration,’” Barr said. “And I say, ‘You’re crazy.’ Because if you view yourself as having a political future down the road, don’t take the job. Because if you take this job, you have to be ready to make decisions and spend all your political capital and have no future. Because you have to have that freedom of action. And I feel I’m in a position in life where I can do the right thing and not really care about the consequences, in the sense that I can truly be independent.”
11:35 a.m. Senator Dianne Feinstein started off her questioning with six lightning-round-style questions.
1. Would Barr commit not to interfere with the scope of the special counsel’s investigation?
Barr responded that the scope of the investigation is already set by Deputy Attorney General Rod Rosenstein when he appointed Mueller and by the regulations governing special counsels., but he committed to maintaining those parameters.
2. Would Barr commit to give the special counsel the “resources, funds, and time” necessary to complete the investigation?
3. Would he commit to ensuring Mueller is not terminated without good cause?
4. If he were to deny a request from Mueller about the scope or funding from Mueller, would Barr commit to notifying Congress?
Barr responded that the regulations governing special counsels require such notifications.
5. Would he commit to making Mueller’s final report available to Congress and the public?
Barr responded that he would make as much of the report available as he could, consistent with rules and regulations. That stipulation most likely refers to the protection of classified information.
6. Would Barr give the same answer about a report on obstruction of justice by the president or his associates?
Right from the start, Feinstein secured reassurances for those worried the Barr would act as a cat’s paw for the White House and put obstacles before the Mueller probe. Those answers represented a big change from the acting attorney general, Matthew Whitaker, who once described how an attorney general could starve the special counsel of funds and kill the investigation.
Later in the questioning, Barr explained when he thought it was appropriate for the president to give directions on particular investigations to the Justice Department. Under once scenario, in which the president has no conflicts, he can tell the Justice Department that he’s interested in a case being prosecuted with gusto, though the DoJ still can’t take action unless it reaches its own, internal conclusions that prosecution is warranted.
10:59 a.m. While answering questions from chairman Graham, Barr gave his first lengthy defense of how he came to write an unsolicited memo to Rod Rosenstein and others at the Justice Department questioning potential obstruction of justice clams against President Trump:
“I wrote the memo because, starting I think in June of 2017, there were many news reports—and I had no facts, and none of us really outside the Department had facts—but I read a lot of news reports suggesting that there were a number of potential obstruction theories that were being contemplated or at least explored.
“One theory in particular that appeared to be under consideration under a specific statute concerned me because I thought it would involve stretching the statute beyond what was intended, and it would do it in a way that would have serious adverse consequences for all agencies that are involved in the administration of justice, especially the department of justice. And I thought it would have a chilling effect going forward over time. And my memo is very clear that is the concern that was driving me. The impact, not the particular case, but its impact of a rule over time. And I wanted to make sure that before anyone went down this path, if that was in fact being considered, that the full implications of the theory were carefully thought out…
“And so I provided the memo to Rod, and I distributed it freely among the other lawyers I thought would be interested in it. And I think it was entirely proper. It’s very common for me and other former senior officials to weigh in on matters that they think may be ill-advised and may have further ramifications down the road.”
Barr further took the opportunity to describe his view of the role of the attorney general as shaped by his concept of the rule of law:
“What is the rule of law? We all use that term. In the area of enforcement, I think the rule of law is that when you apply a rule to A, it has to be the same rule and approach you apply to B, C, D, E, and so forth. And that seems to me to suggest two corollaries for an attorney general. The first, that’s why we don’t like political interference! Political interference means that the rule being applied to A isn’t the rule you’re applying to everyone—it’s special treatment, because someone’s in there exerting political influence.
“The corollary to that… is that when a prosecutor is applying a rule to A, you’ve got to be careful that it’s not torqued specially for that case in a way that couldn’t be applied down the road or, if it is applied, will create problems down the road. And I think the attorney general’s job is both. It is to protect against interference, but it also is to provide oversight to make sure that in each individual case, the same rule that would be applied broadly is being applied to the individual.”
10:35 a.m. As she gave her opening statement at William Barr’s attorney general confirmation hearing, Judiciary Committee Ranking Member Diane Feinstein hammered home one thing: Committee Democrats aren’t lining up to take a charitable view of William Barr’s summer memo to top Justice officials objecting to special counsel Robert Mueller’s potential charge of obstruction of justice against the president.
In opening remarks, Feinstein commended Barr’s stated commitment that “it’s vitally important that the special counsel be allowed to complete its investigation.”
“However, there are at least two aspects of Mr. Mueller’s investigation,” Feinstein went on. “First, Russian interference in the United States election, and whether any U.S. persons were involved in that interference. And second, possible obstruction of justice. It’s the second component that you have written on.”
In the summer memo, Barr did in fact express his skepticism that a potential obstruction case, as described in contemporaneous press reports, would be “premised on a novel and legally insupportable reading of the law.” His argument was that a charge of obstruction leveled against a president for exercising his constitutional powers of directing the executive branch—even if Trump had done so with the corrupt intent of squelching an investigation into his own campaign—would open a prosecutorial Pandora’s Box that would create waves of motivational uncertainty throughout the Justice Department.
“For decades, the Department has been routinely attacked both for its failure to pursue certain matters and for its decisions to move forward on others,” Barr wrote. “While these controversies have heretofore been waged largely on the field of political combat, Mueller’s sweeping obstruction theory would now open the way for the ‘criminalization’ of these disputes. Predictably, challenges to the Department’s decisions will be accompanied by claims that the Attorney General, or other supervisory officials, are ‘obstructing’ justice because their directions are improperly motivated. Whenever the slightest colorable claim of a possible ‘improper motive’ is advanced, there will be calls for a criminal investigation into possible ‘obstruction.’”
In her opening remarks, Feinstein made clear she did not agree with Barr’s assessment. But she went further, accusing him of “a determined effort, I thought, to undermine Bob Mueller.”
“It does raise questions about your willingness to reach conclusions before knowing the facts,” she said.
It’s these questions Barr will hope to put to rest during his hearing. Helping his case is that his original memo was carefully written to head off the charge that he had prejudged anything at all. “I am writing as a former official deeply concerned with the institutions of the Presidency and the Department of Justice,” it began. “I realize that I am in the dark about many facts, but I hope my views may be useful.”
In his own opening remarks, Barr pushed back on Feinstein’s assessment: “If confirmed, I will not permit partisan politics, personal interests, or any other improper consideration to interfere with this or any other investigation. I will follow the Special Counsel regulations scrupulously and in good faith, and on my watch, Bob will be allowed to complete his work.”