Harry Litman teaches constitutional law at the University of California at San Diego. He was U.S. attorney for the Western District of Pennsylvania from 1998 to 2001 and deputy assistant attorney general from 1993 to 1998.
With the advance publication of attorney general nominee William P. Barr’s opening statement to the Judiciary Committee, the focus of his nomination hearing on Tuesday may shift from a fight about “recusal” to a fight about “transparency.”
Although some members of the committee may press Barr to recuse himself from Robert S. Mueller III’s probe into possible collusion between the Trump campaign and the Russians during 2016, that is not a realistic possibility.
Barr and the Republicans hold the cards. With a 53 to 47 Republican majority in the Senate, Barr’s confirmation seems assured unless the nominee comes unglued or makes a major gaffe. Neither seems likely; Barr is normally unflappable — he barely ever raises his voice — and too smart and well-prepared to step in it.
Barr will rebuff the idea that anything in his past conduct or his personal views — including the unsolicited 19-page memo that he wrote assailing one aspect of the Mueller probe — requires recusal.
So what can the Democrats hope to achieve with adroit questioning of the nominee?
First, on the matter of recusal, they can try to exact a pledge that Barr will follow the guidance at every turn of career Justice Department ethics officials. Acting-Attorney General Matthew G. Whitaker promised to consult with those officials, but the promise turned out to be empty and fundamentally dishonest because Whitaker simply ignored their counsel to recuse. In his committee questionnaire, Barr similarly promised only to consult with department ethics officials. The committee can ask him to take the next step. Otherwise, Barr would begin his tenure with a slap in the face to the department he is leading if he followed Whitaker’s example.
Second, on the “transparency” issue, Barr’s statement notes that “it is very important that the public and Congress be informed of the results of the special counsel’s work,” and proclaims that his goal will be “to provide as much transparency as I can consistent with the law.” It is fair to push Barr to be much more concrete. The pertinent question should be: Will he exercise his authority under the special counsel regulations to release the unclassified version of the Mueller report in its entirety, unless he determines that the release would be legally prohibited (and not just ill-advised)?
Third, barring legal impediments against doing so, the Democrats should push Barr to commit to fully explain any action he himself takes as part of his oversight of Mueller’s inquiry. The special counsel regulations don’t require notification until the close of the investigation and don’t specify how detailed the notification must be. The committee can push Barr to commit to a higher standard of accountability by advising Congress as promptly as feasible and with a complete recitation of the pertinent facts and law.
Finally, there is the very nettlesome issue of Barr’s highly expansive views of executive power, which he hints at in his memo and about which I have written about previously. Barr’s memo, which will come under detailed scrutiny, suggests in some places that a president cannot act unlawfully in the exercise of enumerated powers such as appointment and removal, which Barr writes are “illimitable.” It would follow, for example, that no proof of malign motive in firing then-FBI Director James B. Comey would be pivotal or even legally relevant. Did Barr mean to take that view in the memo and does he stand by it?
And then there is this question: In Barr’s view, the president is his ultimate and absolute boss and presumably can reverse any decision Barr makes for any reason. Barr’s sole recourse in that event is to resign the office, which would trigger a political nightmare for the White House. Would Barr commit to follow in the honorable steps of Attorney General Elliot Richardson if given an order from the president that undermines what he has said about the paramount importance of permitting Mueller to complete his work? A pledge on the record would allay, if not eliminate, much of the uneasiness that his nomination unavoidably provokes.
Barr will be the next attorney general of the United States. But in response to smart questioning, he may provide assurances to the committee, and the American people, that Trump’s constitutional outrages will not be buried on his watch.