William P Barr’s confirmation hearing reflects the degree to which President Trump’s lawlessness has become the overriding issue for the department Barr would lead as attorney general.
Barr committed to allowing special counsel Robert S. Mueller III to complete his investigation, vouched for Mueller’s professionalism, and said he didn’t think Mueller was involved in any witch hunt. But the president who nominated Barr would disagree.
Barr stopped short of promising that the entire Mueller report would be released, but he did pledge to follow the special counsel regulations and said he’d refuse to fire Mueller without cause. To some observers, that raises the question as to whether the report could be changed or edited before it is released, thereby concealing some of Mueller’s findings. “He refused to give a pledge to release the report that Mueller drafts. That is alarming,” said Walter Shaub, the former head of the Office of Government Ethics. Instead, Barr said his own report would be released, not necessarily the special counsel’s report, which he claimed was “confidential.”
Again, in contradiction to certain statements Trump has made publicly, Barr declared without equivocation, “I believe the Russians interfered or attempted to interfere with the election, and I think we have to get to the bottom of it.”
When it came to explaining his June 2018 memo drafted and sent to Deputy Attorney General Rod J. Rosenstein, Barr pleaded that he really did not know what theory Mueller was following and what facts were at issue when he made rather sweeping allegations. (“Mueller’s obstruction theory is fatally misconceived,” Barr wrote in the memo. “As I understand it, his theory is premised on a novel and legally insupportable reading of the law. Moreover, in my view, if credited by the Department, it would have grave consequences far beyond the immediate confines of this case and would do lasting damage to the presidency and to the administration of law within the executive branch.”) In essence, Barr said he was arguing a hypothetical in which the firing of former FBI director James B. Comey was the sole basis for an obstruction charge.
The most charitable explanation is that Barr was injudicious in popping off about things that were mere speculation. His decision to send such a memo — based on pure speculation that the investigation was premised on a single fact (Comey’s firing) — suggests a lack of restraint and judgment.
Barr nevertheless made clear that the president could violate the Constitution if he intervenes in a case involving himself, if he asks witnesses to change testimony, or if he destroys evidence. Asked about the president offering a pardon in an effort to change or stop testimony, Barr replied that such a move would be a crime.
The nominee’s answers fell short of what some Democrats were expecting — a full recusal and/or a promise to release Mueller’s complete report. As a practical matter, however, given the choice between Barr or some other Justice Department appointee supervising the Mueller report, the country is likely to do better with Barr, whose personal reputation and relationships with Mueller (whom he has called a friend) and career Justice Department lawyers would weigh against favoritism toward Trump.
As for the report, with a Democratic House and Mueller’s court filings, it is difficult to imagine we won’t get the full picture after Mueller completes his inquiry.
Finally, Barr’s comments on immigration were uninformed (e.g., his suggestion that we have the most liberal immigration system in the world). But the problem on that front is Trump, not the Justice Department.
In sum, Barr hasn’t said anything at this point clearly disqualifying. And let’s be honest: Barr is about the most ethical and professional candidate for attorney general we could get from this president.