Former attorney general William P. Barr is President Trump’s leading candidate to be nominated to lead the Justice Department — a choice that could be made in coming days as the agency presses forward with a probe of Russian interference in the 2016 election, according to multiple people familiar with the deliberations.
Barr, 68, a well-respected Republican lawyer who served as attorney general from 1991 to 1993 under President George H.W. Bush, has emerged as a favorite candidate of a number of Trump administration officials, including senior lawyers in the White House Counsel’s Office, these people said. Two people familiar with the discussions said the president has told advisers in recent days that he plans to nominate Barr.
Critics are already pointing to public comments in which Barr said there was more reason to investigate Hillary Clinton and the uranium deal (wasn’t she already investigated?) than Trump on issues concerning Russian collusion.
Nevertheless, Barr has a lot going for him. “He certainly has the credentials, and he is widely respected on both sides of the aisle,” says former Justice Department spokesman Matthew Miller. “But I think any nominee, even one with the best credentials, would need to be deeply interrogated in public hearings about his views on the rule of law, his interactions with the president, and how he would handle the president’s ongoing, active interference with the Justice Department, and he would have to give reassuring answers.”
The problem is not Barr per se, who is far and away the most qualified person Trump could likely get to serve, but rather under what conditions the attorney general spot gets filled for the remainder of Trump’s term.
Brookings Institution and Lawfare scholar Susan Hennessey tweets: “We’re in the near impossible position that anyone Trump would have is almost per se unacceptable, because what he wants is an Attorney General who will violate the Constitution and his or her oath,” she writes. “But the current situation with [Matthew G.] Whitaker is even more appalling and untenable.” Her solution is to “confirm a generally acceptable candidate after s/he pledges recusal on Russia and any matters before DOJ on which they’ve made representations, publicly or privately, that might serve as an improper basis for selection.”
Miller agrees, telling me, “I think the president needs to nominate someone with unimpeachable credentials, and he needs to do it as soon as possible. Then, given how Trump has irrevocably tainted the process through both his public comments and private actions, the Senate should insist that the nominee commit to recusing from the Russia investigation. "
Unlike Justice Brett M. Kavanaugh, Barr would gain instant credibility if he recused himself from Russia matters up front where the appearance of a conflict would diminish faith in DOJ. The problem remains that Republican senators think their obligation is to rubber stamp whomever Trump sends up. If they rubber stamp the pick without fully examining potential conflicts, they will perpetuate the crisis of legitimacy at the Justice Department. It’s up to them — if they want Barr — to set the conditions for his confirmation.
There are two other options.
First, Trump can select a qualified and well-liked senator who has not popped off about Russia or endorsed his attacks on Hillary Clinton or the intelligence community. Someone such as Sen. Mike Lee (R-Utah) or Tim Scott (R-S.C.) would, I think, sail through confirmation. Democrats will take issue with their policy stands, but there is no reason to believe they would violate the law or legal ethics to protect Trump.
Another option is to let the law operate: Whitaker — whose appointment poses both a conflict of interest and a violation of the Appointments Clause — must go. Then, “The right way would be to follow the Attorney General Succession Act, which would put the Deputy AG, Rod Rosenstein, in the acting AG spot for 210 days,” says constitutional scholar Laurence H. Tribe.
Any of these options would require Republicans to take a stand and to cease enabling Trump’s efforts to undermine the rule of law and the independence of the Justice Department. Several of them must finally say enough. They cannot countenance Whitaker nor should they approve any new nominee without securing recusal where appropriate. Especially those senators not in deep red states who are on the ballot in 2020 should carefully consider whether they want to be seen as defenders of the Constitution or lackeys of Trump. I know what they should do; I fear what they will do.