After Barr explained why he might not release special counsel Robert S. Mueller III’s report — citing legal constraints — but would be as transparent as he could in his own report, Feinstein thanked him, saying: “Well, I can only speak for this side and maybe not all this side, but we really appreciate that.”
Sen. Christopher A. Coons (D-Del.), likewise, seemed impressed with Barr’s answers regarding Mueller, telling him at one point, “I am encouraged by things you’ve said about this.” He later told CNN that “broadly speaking,” he was happy with Barr, while reserving judgment about Barr’s treatment of the Mueller report and a couple of other issues. Sen. Sheldon Whitehouse (D-R.I.) agreed that Barr “did pretty well” and left open the possibility of voting for him.
All of this despite three major red flags:
- Barr said he would not abide by ethics officials' advice regarding whether he should recuse himself from oversight of Mueller’s investigation, because of his past criticism of the inquiry. This, even though other top Justice Department officials including Jeff Sessions have made such promises in years past.
- He strongly suggested that the Mueller report couldn’t be made public under current Justice Department guidelines, and that his own report on it to lawmakers would deal only with things that will be prosecuted. Given that existing DOJ guidelines say a sitting president can’t be indicted, logically that could mean we won’t learn about what Mueller found on President Trump or those close to him, unless it happens to be a part of a prosecution.
- Barr’s explanation of his 2017 comments about investigating the Clintons resulted in the New York Times releasing an email he had sent. In that email, Barr clearly suggested that the GOP-led Uranium One and Foreign Intelligence Surveillance Act surveillance conspiracy theories were more worthy of investigation than potential Trump campaign collusion with Russia. Barr assured panel members Tuesday that he wasn’t all that keen on investigating the Clintons, but, by extension, that means he didn’t have much regard at all for Mueller’s collusion inquiry.
The Democrats on the Judiciary Committee rarely connected the dots on these issues in real time. Feinstein even seemed to offer a course-correction Wednesday morning, when she started the next Barr hearing by saying she wouldn’t vote for him unless he would make the Mueller report public. That was difficult to square with her stated appreciation for Barr’s answer on that topic Tuesday.
Even when Democrats did raise concerns, they were generally muted. They didn’t really dispute Barr’s claims of his own limitations. They could have come loaded with specific laws or Justice Department rules to fight back, but they didn’t. It was as though they were resigned to Barr’s confirmation, and any concessions he would make were purely voluntary. All of this despite three major red flags: bonuses, even. With the exception of a few members, they were largely deferential, even though they were questioning a man who could potentially bury the Mueller report.
Barr’s answers did give plenty of Trump’s opponents something to be happy about. He implicitly rebuked Trump’s “witch hunt” and “lock her up” rhetoric, and he defended Mueller as a man and a public servant. Barr promised that he would not let the president run roughshod over the process (“I will not be bullied”). He said it would be illegal for Trump to offer pardons in exchange for changing someone’s testimony. He even laid out a rationale for Trump to have obstructed justice and/or committed impeachable offenses.
As The Washington Post’s Dana Milbank and others have argued, you could look closely at what Barr said and see a guy who could one day help take down Trump. That’s entirely possible.
But one of the best political attributes is the ability to be all things to all people — to say enough to mollify each group and make people think you’re on their side. Barr is still the guy who has criticized both legs of the Mueller inquiry and suggested that conspiracy theories were more worthy of investigation. He’s still the guy who sounds a lot like he won’t share Mueller’s report — even with Congress. And he’s still the guy unwilling to volunteer to abide by ethics advisers' suggestions on these very important matters.
If you had said six months ago that Trump would fire Sessions and install this kind of nominee as his replacement, with the fate of Mueller’s investigation up in the air, you’d never have believed he’d have such an easy confirmation hearing.
Democrats probably never could have defeated Barr, especially given the GOP’s newly expanded 53-47 majority in the Senate. But sometimes you can force the issue and get the nominee to play ball with you. Barr seemed to be playing a different game than Democrats on Tuesday.