It is not surprised that progressive groups are already calling foul. Kevin McAlister of Law Works released a statement that included the following: “Barr has publicly prejudged the Mueller investigation and has argued in favor of using the Justice Department as a cudgel against President Trump’s political enemies. The Senate needs to protect the Mueller investigation by making sure Barr commits to protecting Mueller’s ability to follow the facts, complete the investigation, and release his report publicly.”
Likewise, Common Cause asserted in a statement, “Barr must commit to safeguarding the investigation as the president has not been shy about pressuring members of his administration to curb the probe by the Special Counsel into Russia’s attack on the 2016 election."
“In selecting a permanent Attorney General, Trump should follow precedent by selecting someone of great stature,” Norman Eisen, former White House ethics counsel, told me. “But it must also be someone who has not exhibited bias against the special-counsel investigation. Whitaker fails both tests, and Barr the latter.”
Now, Barr is among the more experienced and competent individuals whom Trump is likely to find. Moreover, with a Republican majority the chances that he will be confirmed are overwhelming. What should those concerned about the rule of law do about the Barr nomination?
There are at least 10 issues the Senate must address head-on.
First, it is essential to establish whether Barr has made up his mind about the Mueller investigation or no longer holds to his loose public statements before the emergence of a slew of indictments and plea deals, plus the conviction of Paul Manafort. He should be asked directly whether the investigation is legal, constitutional and appropriate. If he cannot explicitly make that statement, then it is hard to see how he would not be obligated to recuse himself with regard to matters concerning the probe.
Second, is Barr aware of any factual basis for investigating Clinton and will he abide by the prior determination of the Justice Department that there was not sufficient evidence of wrongdoing? The Uranium One allegations have been repeatedly debunked; Barr should be walked through those facts and asked if he still insists there is a basis for prosecution.
Third, Barr should specifically lay out his understanding of the appropriate relationship between White House political aides and the Justice Department. Is it appropriate for someone in the White House to pick up the phone to order investigation and/or indictment of a political enemy? Does he think rules followed in prior administrations to prevent politicization of the Justice Department should be enforced? If anyone in the White House interferes with, him does he pledge to report it to the Judiciary Committee? Does he think the White House and the Justice Department need training in the propriety of interfering with specific enforcement and/or investigatory matters?
Fourth, Trump has repeatedly insulted and smeared federal courts and judges. Barr should be asked whether he agrees with the president’s comments, and whether he would advise against future comments. Does he think the independence of the judiciary and the rule of law are damaged by baseless attacks on judges' motives and integrity?
Fifth, Barr was involved in controversial pardons of officials in the George H.W. Bush administration — of those who played a role and/or testified about the Iran-contra scandal (including former defense secretary Caspar Weinberger). He should explain the process he followed and the rationale for the pardons. If Trump attempted to pardon his family members or past associates to shield himself from legal harm, what would Barr do?
Sixth, Barr should be asked flat out if he thinks the president can obstruct justice. If he follows the extreme view that a president, for example, constitutionally could take a bribe in exchange for exercising his pardon power, it is hard to see how Barr can be confirmed. Likewise, does he agree that a president’s impeachment can be based on efforts to direct the Justice Department not to investigate, to lie to the American people repeatedly, to dangle pardons to secure a promise not to cooperate with investigators? He should be presented with Article One of the impeachment of Richard Nixon and asked whether he agrees the conduct listed therein was proper grounds, if determined in a Senate trial, for impeachment and removal of a president.
Seventh, the Senate should inquire as to Barr’s views on prosecution of a sitting president. If he follows the view that a president cannot be indicted, does he think a self-pardon would be effective? Does he think the statute of limitations is tolled on crimes until the president leaves office?
Eighth, senators should ask whether there is any basis for the conclusion espoused by the president and others that voter fraud is a widespread problem. If he says there is no basis, he should be asked what rationale exists for photo ID laws and whether, as courts and studies have now found, such laws deter African Americans, other nonwhites and poor people from voting. He should also be asked his views about amending the Voting Rights Act to reinstate the preclearance provisions. Does he think this is necessary and would he pledge to support legislative efforts to reinstate those provisions?
Ninth, what would Barr do if Trump fired special counsel Robert S. Mueller III before completion of the Russia probe? He should be asked whether he thinks Mueller has any conflicts that should disqualify him, whether Mueller has a solid reputation for integrity and whether he would oppose, and resign if need be, efforts to curtail, defund or otherwise impede the investigation. Barr should be asked to pledge that, absent evidence of good cause, he personally will not fire Mueller. He should also be asked whether the appointment of an acting attorney general with no Senate confirmation and in violation of the line of succession at the Justice Department is constitutional.
Tenth, he needs to be asked about the president’s attacks on the professionalism and integrity of the Justice Department, the FBI and the Foreign Intelligence Surveillance Act courts. Does he share these views? Does he think they are damaging to the rule of law?
The questions asked and the promises made in Barr’s confirmation hearing can make all the difference in the world. Barr must satisfy senators and the American people that he is not a flunky for the president and will do everything in his power to restore and protect the rule of law. Republicans for once must take their obligations seriously, do more than ask softball questions and join colleagues in demanding the sort of pledges outlined above. If they once again choose fidelity to office over their oaths of office, they deserve to be voted out as they come up for reelection.