Just Security asked experts what to watch for in the Senate Judiciary Committee’s confirmation hearings for William Barr, President Trump’s nominee to replace Jeff Sessions as attorney general. A number of the issues raised would be crucial for any attorney general nominee, but take on heightened significance given the new attorney general will be supervising Special Counsel Robert Mueller’s investigation into Russian interference in the 2016 presidential elections unless he is recused from the matter, which Senators are also likely to press. Watch for these key issues during the hearing.
Barbara McQuade, former U.S. Attorney for the Eastern District of Michigan, is watching for responses that shed light on Barr’s independence and his views on executive power, both of which will be crucial to Mueller’s investigation:
With regard to independence, I would want to hear his responses to questions about whether he will commit to allowing Mueller to complete his investigation without interference from the White House, why he sent the 19-page memo to DOJ regarding obstruction of justice, whether he would follow the advice of career DOJ ethics officials regarding whether to recuse himself from the Russia investigation, whether he has had any conversations with President Trump or others in his administration about the merits of the Mueller investigation or loyalty to Trump, whether he will commit to making Mueller’s final report available to the public, and how he will respond if the President makes disparaging remarks designed to undermine public confidence in the FBI or DOJ.
Regarding executive power, I would want to know where he stands on whether a president can be indicted, whether he believes a president must comply with a subpoena to testify before a grand jury, whether executive privilege can block portions of Mueller’s report from being disclosed to the public, whether he would be willing to move off of his conclusion about whether a president can obstruct justice if he learned additional facts contrary to his prior assumptions, whether a president can be a target of a counterintelligence investigation, and whether a president can pardon himself.
The next attorney general will face historic decisions about the American presidency, and it is important that the public have confidence in that person’s independence and integrity.
Bob Bauer, former White House Counsel, also emphasized Barr’s independence. He is watching how Barr’s expansive views of presidential authority may color decisions to defer to the President, including in the Mueller investigation:
Barr’s opening statement released today is useful in framing for the Senators a critical issue. He paid tribute to the importance of a Department administering the law impartially and in good faith, but given his expansive theory of the president’s executive authority, to what extent will he defer to the president’s judgments in the Russia matter if contrary to his own? If he must make a decision under the special counsel rules that affect the course of the Mueller investigation, or the release of its findings and conclusions to the Congress or the public, he will presumably inform the president: What will he do if the president directs him to decide the matter differently? When he speaks of not permitting “personal political, or other improper interests,” but with the crucial reservation that these are “judgments …[to] be made by me,“ does he see such judgments as necessarily ones the president may properly make –on his understanding of the president’s authority?
Mary McCord, who served as Acting Assistant Attorney General for National Security at DOJ, among other senior roles in her over 20 years with DOJ, noted that Barr’s unsolicited memo on obstruction of justice needs to be factored in when evaluating his statements that he will not be influenced by politics or make promises to the President:
Although Mr. Barr’s opening statement indicated that he will not allow partisan politics, personal interests, or improper considerations to interfere with the Mueller investigation, his previous memo indicates his professional view of potential obstruction theories, which he could of course act upon when considering any of Mr. Mueller’s potential recommendations. I expect he will be asked about this at the hearing. Mr. Barr also made it clear in his statement that he was not asked by the president to make any promises, nor did he make any, but it’s likely that Mr. Barr’s memo was a significant factor in the president’s decision to nominate him for the attorney general position, and that’s something that will cast something of a shadow over the nomination, notwithstanding Mr. Barr’s qualifications for the job.
Josh Geltzer, a former Obama administration official who is Executive Director of Georgetown Law’s Institute for Constitutional Advocacy and Protection, emphasized the necessity of the next Attorney General defending the legitimacy of DOJ as an institution, particularly in light of unprecedented, political attacks from the President on DOJ and its staff:
The Justice Department has been impugned by a sitting President to an unprecedented and astonishing degree. Whatever the next Attorney General’s views may be on critical legal issues, it’s imperative that he be prepared to stand up for the legitimacy of the institution he’s being asked to lead—a vital and extraordinary institution. As Attorney General-nominee Barr faces questions from Senators, I hope he will be pressed hard on whether he feels able to defend the Justice Department and its staff –especially its career civil servants — from whatever rhetoric may be directed their way from the White House, even if that disappoints and angers the very President who nominated him. And I hope he is prepared, in response to such questions, to articulate a willingness to defend them and the work they do internally and externally as their potential leader.
Anne Tindall, counsel at United to Protect Democracy, flagged Barr’s commitment to DOJ’s independence from political interference as a crucial area to watch:
Mr. Barr’s commitment to protect the independence of the Department of Justice will be critical. President Trump, time and again, has sought to interfere with law enforcement at DOJ to protect himself and his associates and harm those he sees as his adversaries. This interference threatens the impartial enforcement of law that is fundamental to DOJ’s legitimacy and the American people’s right to equal protection under the law. We need an Attorney General who will stand up for the independence of the DOJ and resist this unconstitutional interference by the President.
Jennifer Daskal, who served as counsel to the Assistant Attorney General for National Security at DOJ, warns that buzz words on transparency — including with respect to any final report by Robert Mueller — should not be taken at face value:
William Barr’s written statement is replete with reassuring statements about his commitment to the rule of law, the Constitution, and transparency “consistent with the law.” But we also know that Mr. Barr has expressed broad views of executive authority — including that the executive could unilaterally launch war, should resist a range of congressional reporting requirements and efforts by Congress to gain access to executive branch information based on its “sensitiv[ity]” — that call into question the scope of the transparency he claims to support. In fact, in a 1989 memo written as head of DOJ’s Office of Legal Counsel, Mr. Barr explicitly urged that the executive demand that congressionally imposed reporting requirements be coupled with the clause “to the extent permitted by law,” thereby seeking to limit the scope of the obligation to report.
Mr. Barr is likely to make several nods to transparency at tomorrow’s hearing, including and of particular import, a commitment to be transparent with respect to Mr. Mueller’s eventual report. To watch: What words are used to caveat the call for transparency? What will he do if the President demands that the report, or key parts of the report, be kept secret? If a demand for secrecy is based on a claimed assertion of national security, or foreign relations, or other matters entrusted to the executive, will he question or independently assess those claims? These are questions that the Senators should push. Those watching need to look behind the buzz words — and at least try to figure out what the words really mean.
Alex Whiting, a former Assistant U.S. Attorney and criminal civil rights prosecutor, points to three areas that Senators should focus on to probe Barr’s views on three issues that will shape Mueller’s investigation:
William Barr will reportedly say in his prepared testimony that if confirmed to the position of Attorney General, he will permit Robert Mueller to complete his investigation. However, he has not commented on three views that could shape Mueller’s investigation and what we could ultimately learn about it. First, are there circumstances under which he believes that the President can commit obstruction of justice? I expect that members of the Committee will question Barr extensively about his June 8, 2018 memo questioning whether any legal basis exists for Mueller’s obstruction investigation. We will likely see questions exploring whether Barr stands by the memo and testing the limits of his reasoning. Second, I would imagine that members of Congress will ask Barr if he believes that the President can be subpoenaed in a criminal investigation. The answer to this question could determine if Mueller will be permitted to even consider this option going forward. Third, I expect that Barr will be asked if he will commit to making Mueller’s report available to Congress or the public. The question of whether the report will see the light of day is a complicated one, and may not be up to the Attorney General at all. But it would be instructive to learn his thinking on this question.
Kel McClanahan, executive director of National Security Counselors, a non-profit public interest law firm that specializes in national security law and information and privacy law, wants to know whether Barr will view his role as an advocate for the Executive Branch or its legal expert:
If you look behind the scenes at some of the most controversial decisions made by the government, you’ll often find an Office of Legal Counsel opinion. OLC opinions are supposed to represent an objective, definitive determination about what the law requires, often on questions that may never see a courtroom. But in recent years they have become increasingly biased justifications for agency actions — less definitive analysis and more aggressive argument. As a former head of OLC, Barr knows that the approach taken by OLC is driven in large part by the Attorney General and the Assistant Attorney General in charge of that office. But no AAG is going to go against the boss.
I would like to see Barr state that, as Attorney General, he would return OLC to its origins: providing objective, sophisticated legal analysis to the Executive Branch without any regard for what conclusions the agencies want OLC to reach. OLC should be the Executive Branch’s legal expert, not its advocate.
Andy Wright, former Associate Counsel to President Obama and House Committee on Oversight and Government Reform attorney, will be watching not only for the Senate exploring Barr’s record, but what the hearing portends for congressional oversight going forward:
I will be watching to see what the Senate achieves in terms of advancing congressional prerogatives during Barr’s confirmation hearings. The Senate confirmation process has retrospective and prospective components. Retrospectively, the Senate will delve into Barr’s prior public service, past commentary, previous dealings that could create conflicts of interest, and history of personal rectitude. At the same time, the Senate can improve prospective congressional interests by signaling a steadfast commitment to constructive congressional oversight, extracting commitments for responsiveness to congressional requests and hearing appearances, and locking Barr down on topics of great import – first and foremost a vow to protect the Department from political interference by President Trump or others in its nonpartisan investigative functions. Every time Barr makes a pledge to Congress, it will increase the costs of breaking it at a later date – as a matter of personal honor, public shaming, and political fallout. It will be interesting to see how the Senate performs on that score.
Tess Bridgeman, former Associate Counsel to President Obama and Deputy Legal Adviser to the National Security Council, will be watching for whether Senators are able to get Barr on the record on key issues:
I’ll be interested in whether Senators succeed in putting Barr on record on issues that could come to a head as constitutional crises – like the use of emergency powers to sidestep Congress’ authority to appropriate funds and whether there are limits on use of the pardon power – as well as issues such as his predecessor’s immigration policies and our legal obligations towards asylum-seekers. Similarly, I’ll be watching whether Senators obtain commitments from Barr on how he conducts himself as attorney general, such as the circumstances under which he would recuse from a matter (including the Mueller investigation). If Barr declines to express views on these important issues or dismisses them as hypothetical, it may make it harder for Congress to hold him to principled positions on these issues going forward.