The committee was scheduled to vote on 46 nominations on Tuesday, including Barr’s, but decided to delay until Feb. 7.
In both his public testimony and his written answers to senators’ questions, Barr has repeatedly refused to give senators any firm guarantee that he will release Mueller’s report to Congress and the public free of redactions. In similar fashion, he has only promised to ask for, but not necessarily heed, the advice of the Justice Department’s ethics counsel on the matter of whether he should recuse himself from oversight of the probe.
That has particularly frustrated Democrats, who take issue with a memo Barr wrote last year arguing that in scrutinizing the actions of the Trump campaign, Mueller appeared to be interpreting an obstruction of justice statute too broadly. Democrats fear the memo is evidence that Barr, who served as attorney general under President George H.W. Bush during the early 1990s, might seek to limit the scope of Mueller’s probe.
Though Barr has said that, as a former attorney general, he often weighs in on topics of the day, he acknowledged in written answers to lawmakers that he could not recall another case in which he sent the Justice Department such a memo.
Barr’s written answers also sparked bipartisan concerns about how much information he might allow Mueller to release specifically concerning Trump. In an answer to Sen. Christopher A. Coons (D-Del.), Barr said that “it is Department policy and practice not to criticize individuals for conduct that does not warrant prosecution.”
On Tuesday, Sen. Sheldon Whitehouse (D-R.I.) pointed out that if Barr decided to follow department legal guidance that a sitting president could not be indicted — or, by extension, prosecuted — it could keep Trump out of the report entirely — even if Mueller found concerning information about the president.
Panel chairman Sen. Lindsey O. Graham (R-S.C.) agreed that possibility was concerning.
“If you agree you can’t indict the president, it’s probably not a good reason not to share with us the derogatory information,” Graham said, promising to pursue Barr on that point. He also pledged to ask Barr whether he would let Trump claim executive privilege to muzzle portions of the report.
As he looks to return to his previous post leading the Justice Department, Barr has met privately with more Senate Republicans than Democrats. Still, it is unclear if he could change Democrats’ minds in additional meetings, as the Democrats who have met with him behind closed doors have emerged saying they were still unsatisfied with Barr’s answers concerning Mueller.
But Barr doesn’t need any Democratic support to be confirmed. Under rules changes that the Democratic-led Senate adopted in 2013, only a simple majority of senators’ votes are needed to confirm a Cabinet nominee.
Yet the delayed Judiciary Committee vote means that it will be difficult for the Senate to confirm Barr before current acting attorney general Matthew G. Whitaker is due on Capitol Hill on Feb. 8 to answer the House Judiciary Committee’s questions about his oversight of the Mueller probe.