William P. Barr almost certainly will be confirmed as attorney general. The question is: Should he be under the totality of circumstances we face?
The two main issues arising from his testimony are the memo he drafted regarding special counsel Robert S. Mueller III’s legal theory, of which Barr admittedly was ignorant, and his refusal to agree in advance to release the final Mueller report.
As to the first, even if we accept his implausible assertion that he was not using the memo to present himself as an AG candidate (or a judge), and we accept the strained interpretation of the memo that his accusations of prosecutorial overreach were meant to criticize Mueller only insofar as he was using the firing of former FBI director James B. Comey as the basis for obstruction of justice, one still gets the impression this is not the work of a serious legal mind, but of a partisan trying to provide reasons for Republicans to slow down or discredit the obstruction investigation. We’d feel much more comfortable if he were to say candidly, “I was offering suggestions for Republicans. As AG I have a higher obligation to consider the administration of justice.”
Bob Bauer summarizes the basis of legitimate concern:
Barr is a deeply troubling pick for this administration at this time. The attorney general this president least needs is one who holds the views [on executive power] that Barr does, and who prior to his nomination was energetically advertising them to administration lawyers. This is not all: Barr has suggested that there may be basis for concern about partisan bias in the office of the special counsel and opined that Hillary Clinton’s foundation was more worthy of investigation than Russian collusion. No doubt Donald Trump, hearing all this, was encouraged to believe that he had finally found the attorney general that he needs.
In short, ideally we would like someone less partisan at DOJ.
As to the issue of the Mueller’s report release, Barr’s comments left the Senate Democratic members frustrated and worried -- for good reason. Barr says he’ll release the AG’s report to Congress more widely to the American people, but steadfastly refused to say the same about Mueller’s report that goes to him.
The most generous reading of Barr’s response emphasizes Barr’s indication that his “objective and goal is to get as much as I can of the information to Congress and the public.” But his response also suggests that the report “will be handled as a confidential document,” and is caveated by Barr’s musing as “to the extent I have discretion” to release it.
Let’s be clear: the Attorney General has such discretion—and not only to release “information” about the report but also to release the report itself. Indeed, the report, once delivered confidentially and redacted as may be appropriate, is in a sense like any other Justice Department document: it’s in the discretion of the Attorney General to share it with Congress and the public. . . .
And what standard should be applied to assessing whether that release should occur? I can’t think of a better one than the Special Counsel regulations already offer for the Attorney General’s own required reporting to Congress: whether release “would be in the public interest.” Indeed, the principal drafter of the special counsel regulations, Neal Katyal, has also suggested that this should be the standard for the release of Mueller’s final report to Congress.
Moreover, Geltzer points out that if Mueller continued with the FBI’s counterintelligence inquiry, it would be essential to alert the public if Mueller finds, for example, Trump was a witting or unwitting agent. It’s also in the country’s and Trump’s interest to find out if Mueller simply concluded Trump was a vain, ignorant man whom Vladimir Putin led around by the nose.
It is not clear why Barr, if he intends to operate in good faith and resolve the investigation once and for all, he would not be forthcoming on the subject of releasing the report, especially if the House, for example, could try to subpoena Mueller and/or his report. Perhaps he is being unduly cautious, or perhaps he’s trying not to infuriate Trump before he’s confirmed. In any event, Barr’s equivocal answer to this critical question leaves Democrats rightly unsettled.
If senators have legitimate concerns about the Barr memo and about releasing the Mueller report, should they vote against him? Politically the smart thing is probably to vote against him, but the right decision must take into account the “devil you know or the devil you don’t.” Barr is far from ideal, but he’s also about the most respected, knowledgeable and independent AG this president is going to convince to serve. He has promised to protect Mueller’s investigation and said he wouldn’t let the White House alter it (although Barr could). Most reassuring he has said (hypothetically) that many of the actions we have reason to believe from news reports Trump has done are violations of his oath, and in the case of using a pardon to extract a change in testimony, a crime. If that is Barr’s view -- and I have no reason to doubt him -- it is hard to see how he wouldn’t support a finding by Mueller based on such facts that this conduct is impeachable and/or indictable.
In sum, a contentious Democrat might conclude Barr is the worst possible pick -- except for all the other conceivable picks. The Senate should confirm him, the House should conduct an exacting oversight and, in any event, the voters must, if Trump is still around, remove him in 2020 via the ballot box.