William P. Barr’s nomination as President Trump’s attorney general is in front of the Senate Judiciary Committee, which is conducting a confirmation hearing Tuesday, and where Barr’s past commentary on special counsel Robert S. Mueller III’s investigation is front and center.
1. Parts of Mueller report might not be ‘release-able’
In Barr’s opening statement, he said he favored releasing the details of the Mueller report and pledged to provide “as much transparency as I can, consistent with the law.” But that last clause was conspicuous, because it suggested there could be things he didn’t view as legally acceptable to release.
And he clarified later that that was indeed the case.
“I don’t know, at the end of the day, what will be release-able," he told Sen. Mazie Hirono (D-Hawaii).
He added later: “As the rules stand now, the rules I think say the special counsel will prepare a summary report on any prosecutive or declination decisions, and that shall be confidential and be treated as any other declination or prosecutive material within the department."
Declination decisions are issued when the government decides not to pursue a case, but that information isn’t released publicly. Thus, it would seem that any matters not involving actual charges would not be disclosed.
Ranking Member Dianne Feinstein (D-Calif.) pressed him on this point, and Barr wouldn’t even commit to even sending the Mueller report to Congress (but he would do as much as he could). Feinstein suggested she was satisfied that answer; other Democrats may not be.
2. Won’t commit to recuse if ethics officials recommend it
The big question hanging over this hearing is not so much whether Democrats can defeat Barr’s nomination — that seems unlikely — but instead whether they can extract key statements or even concessions. Chief among them would be whether Barr will recuse himself from the Mueller probe.
Jeff Sessions recused himself, given his role on the Trump campaign, and ethics officials recommended that acting attorney general Matthew G. Whitaker recuse himself, based on his past commentary critical of Mueller. Whitaker has not recused himself.
Some Democrats have said Barr should recuse himself, based on his criticism of the probe, but Barr isn’t making any promises. When asked by Sen. Patrick J. Leahy (D-Vt.) whether he would abide by ethics officials' advice, Barr wouldn’t commit.
“I will seek the advice of the career ethics personnel, but under the regulations, I make the decision as the head of the agency as to my own recusal,” Barr said.
That statement is literally true, but previous Justice Department nominees including Sessions have agreed to abide by ethics officials' advice. Barr opted not to do that. And in fact, he later said Sessions’s commitment to follow that advice was an “abdication of his own responsibility.” Barr said repeatedly that he would not cede such prerogatives. “I am not going to surrender the responsibilities I have," he said, adding that he would disregard the ethics advice "if I disagreed with it.”
In other words: Barr didn’t really give an inch.
At the same time, Barr said that Sessions was, in fact, correct to recuse himself. That recusal is what soured the relationship between Sessions and Trump. Now Barr says he agrees that it was the right call. That might not mean he’ll recuse himself, but it’s a notable departure from the Trump line. One wonders what the president, who routinely decried Sessions’s recusal as a lack of loyalty, thinks of that statement. (Barr, notably, said in his opening statement that Trump sought no promises about such things — either explicitly or implicitly.)
3. ‘I don’t believe Mr. Mueller would be involved in a witch hunt’
Speaking of ways in which Barr splits with Trump, here’s another one Graham extracted: Barr doesn’t think Mueller’s investigation is a “witch hunt.”
“I don’t believe Mr. Mueller would be involved in a witch hunt,” Barr said when Graham asked him that direct question.
Barr is both a critic of aspects of the Mueller probe and Mueller’s friend, which is a compelling dichotomy. He has taken care, though, to emphasize that his criticisms aren’t about Mueller as a person.
4. On Trump: ‘I will not be bullied’
Trump’s criticisms of Sessions and his heavy-handed comments when other government officials run afoul of him — combined with Barr’s expansive view of executive authority — have led to questions about whether he would be Trump’s stooge.
But Barr sought to argue that he is in a unique position, as someone in the twilight of his career, to be completely independent.
“I feel I’m in a position in life where I can do the right thing and not really care about the consequences. In the sense that I can be truly independent,” Barr said.
He added: “I had a very good life. I have a very good life. I love it. But I also want to help in this circumstance, and I am not going to do anything that I think is wrong, and I will not be bullied into doing anything I think is wrong. ... I’m going to do what I think is right.”
5. Wouldn’t fire Mueller without ‘good cause’
It may not be a surprising answer, but Barr made clear that he wouldn’t terminate Mueller as special counsel without “good cause.”
Asked whether he would resign if Trump asked him to fire Mueller, Barr clarified that the question implied there was no good cause to do so.
Barr didn’t directly answer the question about resigning, but he did say, “I would not carry out that instruction.”
6. Disputes Uranium One suggestions
Barr clarified his comments in a New York Times report from 2017 that said Barr saw “more basis for investigating the [Clinton-Uranium One] deal than any supposed collusion between Mr. Trump and Russia.”
When it was pointed out that the Uranium One questions have been widely dismissed as a conspiracy theory, Barr said he was making a rhetorical point and that he wasn’t calling for such an investigation.
“I have no knowledge of Uranium One,” he said. “I didn’t particularly think that was necessarily something that should be pursued aggressively. I was trying to make there point that there was a lot out there. I think all that stuff at the time was being looked at by [Utah U.S. Attorney John] Huber,” who is looking into various claims put forth by Republicans.
Here’s how the Times reported it:
Mr. Barr said he sees more basis for investigating the uranium deal than any supposed collusion between Mr. Trump and Russia. “To the extent it is not pursuing these matters, the department is abdicating its responsibility,” he said.
Added Barr: “You’ll notice that there were no quotes around that, and then the next sentence is plural – ‘matters.’ And my recollection of that is -- I think it was relating to the letter and the appointment of Huber to look into a number of things. The point I was trying to make there was that whatever the standard is for launching an investigation, it should be dealt with evenhandedly."
The Times’s Peter Baker has released Barr’s full email. In it, Barr clearly says Uranium One and the Clinton Foundation both provided more of a “predicate” for investigation than collusion -- and that not pursuing these matters would be “abdicating” the Justice Department’s responsibility.
Here’s what Barr said:
“There is nothing inherently wrong about a President calling for an investigation. Although an investigation shouldn’t be launched just because a President wants it, the ultimate question is whether the matter warrants investigation, and I have long believed that the predicate for investigating the uranium deal, as well as the foundation, is far stronger than any basis for investigating so-called ‘collusion.’ Likewise the basis for investigating various ‘national security’ activities carried out during the election, as Senator Grassley has been attempting to do. To the extent it is not pursuing these matters, the Department is abdicating its responsibility.”
7. Will investigate Strzok, etc.
Graham started the hearing by saying he hoped Barr would “right the ship” at the Justice Department, but it wasn’t immediately clear to what he was referring.
Then Graham made it clear: To begin his questioning, he brought up Peter Strzok’s and Lisa Page’s anti-Trump texts — among other allegedly biased misdeeds within the Justice Department — and then explicitly asked whether Barr would look into all of it.
Barr’s response: “Yes, Mr. Chairman. ... I was shocked when I saw them.”
It seemed as if Barr was acceding to Graham’s request to open a specific inquiry. That seems notable, given part of the opposition to Barr is rooted in his saying it is okay for a president to request specific investigations, even into his political opponents (as long as the decision is made on the merits).
8. Journalists could be jailed — but only as a ‘last resort’
Sen. Amy Klobuchar (D-Minn.), whose father is a famous journalist in Minnesota, pressed Barr on the rights of the press. And when she asked him would “the Justice Department jail journalists for doing their jobs,” he didn’t exactly say no.
After pausing, Barr said it was possible, but only as a “last resort."
“I can conceive of places where, as a last resort, and a news organization has run through a red flag or something like that — knows that they’re putting out something that could hurt the country” Barr said, "there could be a situation into whether someone could be held in contempt.”
The Obama administration fought to compel the New York Times’s James Risen to testify in a leak case against his alleged source, but in 2014 Attorney General Eric Holder said that “no reporter’s going to jail as long as I’m attorney general.”
9. Will not target marijuana companies
In a break from Sessions, Barr said his Justice Department would “not go after” marijuana companies operating in states that have legalized cannabis.
Marijuana remains illegal at the federal level, and Sessions had rescinded the Obama administration’s rules that such companies wouldn’t be targeted — the so-called “Cole memo.”
Barr added, though, that “I think it’s incumbent on the Congress to make a decision as to whether we are going to have a federal system."