William P. Barr, President Trump’s nominee to be the next attorney general, appeared Tuesday before the Senate Judiciary Committee for confirmation.
Barr, a former attorney general, deputy attorney general and head of the department’s Office of Legal Counsel, unquestionably has the experience for the post. But he faced tough questioning about how he would remain independent from a president who attacks the department constantly, and how he will treat special counsel Robert S. Mueller III’s investigation into Russian election interference.
Sen. Dianne Feinstein (Calif.), the Senate Judiciary Committee’s ranking Democrat, had said she would seek to be “reassured” that Barr will treat Mueller fairly, while Senate Judiciary Committee Chairman Lindsey O. Graham (R-S.C.) had said that Barr already has intimated he “is committed to allowing Mr. Mueller to finish.” Barr has raised questions about Mueller’s probe publicly and to Justice Department leaders.
6:10 p.m.: Barr addresses public comments about Clinton-related investigations
As his confirmation hearing drew to a close, Barr continued to explain his comments to the New York Times in 2017. In an email to the news organization, the future nominee said he saw more evidence to investigate a controversial sale of a uranium company to Russia, as well as alleged wrongdoing at the Clinton Foundation, than potential collusion between Russia and the Trump campaign.
The point Barr said he was trying to reflect was that some felt a double standard had been applied to the Uranium One and Clinton Foundation controversies, and that “I thought it was important that the same standard for investigation be used for all matters.”
Barr, under questioning from Sen. Richard Blumenthal (D-Conn.), said he had no specific information about Uranium One that suggested wrongdoing and that he didn’t necessarily believe the Clinton Foundation should come under a criminal investigation.
“I don’t subscribe to this ‘lock her up’ stuff,” Barr said at the tail end of his marathon testimony before the Senate Judiciary Committee.
During the hearing, New York Times reporter Peter Baker tweeted the text of the 2017 email from Barr, in which Barr wrote that he has “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.’ ”
“Although an investigation shouldn’t be launched just because a President wants it, the ultimate question is whether the matter warrants investigation,” Barr wrote.
“To the extent it is not pursuing these matters, the Department is abdicating its responsibility,” he added.
5:55 p.m.: Barr reiterates that Mueller report might not be fully public
Near the end of the hearing, Barr drove home what might be the biggest revelation of the day: Mueller’s report might not be made public.
The statement came in response to questions from Sen. John Neely Kennedy (R-La.), who said he was still confused about Barr’s earlier testimony on the fate of the Mueller report. He hypothesized that Mueller had written a report and given it to Barr.
Under Justice Department rules, Kennedy asked, “What happens next?”
Barr responded: “Under the current rules, that report is supposed to be confidential and treated as the prosecution and declination documents in any other criminal case, and then the attorney general, as I understand the rules, would report to Congress about the conclusion of the investigation. And I believe there may be discretion there about what the attorney general can put in that report.”
“So you would make a report to Congress?” Kennedy asked.
“Yes,” Barr responded.
“Based on the report that you’ve received?” Kennedy asked.
“Yes,” Barr said.
The upshot is one that will probably worry Democrats: Barr had essentially suggested that Mueller’s findings would be filtered through the attorney general, who would decide what Congress and the public would learn. Barr had previously promised that his goal would be transparency, though he seemed to be managing expectations about a full airing of Mueller’s findings.
5:50 p.m.: Barr questioned on past writings on gay rights groups
Barr acknowledged his past writings taking aim at gay rights groups Tuesday but insisted that he was firmly opposed to discrimination.
Sen. Cory Booker (D-N.J.) invoked a 1995 article Barr wrote for the Catholic Lawyer in which he decried laws that “seek to ratify, or put on an equal plane, conduct that previously was considered immoral.” As an example of that, Barr had pointed in the article to a D.C. law forcing Georgetown University — a religious institution — “to treat homosexual activist groups like any other student group.” Booker asked Barr whether his opinion had changed.
Barr said no — but he also argued that Booker had been summarizing his views too simply, as even at the time he wrote that, he believed that while “marriage was regulated by the states . . . I would have favored unions that were single-sex.”
“In a pluralistic society, there has to be a live-and-let-live attitude,” Barr continued. But he stressed that “mutual tolerance . . . has to be a two-way street” — meaning that there had to be “an accommodation for religion” in laws supporting LGBT rights.
On same-sex marriage, Barr said he was “perfectly fine with the law as it is.” He also said he was “against discrimination against anyone because of some status of their gender or their sexual orientation or whatever.” He also said that it would be “totally wrong” to fire anyone because they are gay, and that he was extremely concerned about “the increase in hate crimes.”
But he stressed that it was up to Congress to pass a law to ban discrimination on the basis of sexual orientation or gender identity on par with other categories subject to civil rights protections.
“Congress passes the law; the Justice Department enforces the law,” he said.
5:45 p.m.: Barr says he is open to reconsidering Justice Department’s stance on Obamacare
In a final exchange with Sen. Kamala D. Harris (D-Calif.), Barr said he was open to reconsidering the Justice Department’s decision not to defend a key provision of the Affordable Care Act in court.
The decision, which occurred when Jeff Sessions was attorney general, was a controversial one. A senior Justice Department lawyer on the case resigned in the wake of it. The Justice Department under the Obama administration had vigorously defended the law, which was sometimes referred to as “Obamacare.”
Harris first asked Barr whether he’d reverse the Justice Department’s position and defend the law in court. Barr said he wanted to look into it.
“Are you open to reconsidering the position?” Harris asked.
“Yes,” Barr responded.
5:35 p.m.: Barr says he sees ‘no reason’ to revise long-standing DOJ precedent that presidents cannot be indicted while in office
Barr said he sees “no reason” to revise the long-standing DOJ precedent that presidents cannot be indicted while in office — a prospect that Democrats have raised after federal prosecutors directly implicated Trump in potential campaign-finance violations.
“For 40 years, the position of the executive branch is that you can’t indict a sitting president,” Barr said under questioning from Blumenthal, adding: “I actually haven’t read those opinions in a long time. But I see no reason to change them.”
Barr declined to answer directly a hypothetical question from Blumenthal, who pressed the nominee on whether he would approve an indictment of Trump if Mueller came to him with proof beyond a reasonable doubt that the president had violated the law.
“That’s the kind of thing I’m not going to answer off the top of my head, but if we take it out of this context and say, if a prosecutor came and showed that there was a quid pro quo by which somebody gives something of value to induce a false testimony …” Barr said.
Blumenthal interjected: “It would be a crime?”
“Yes,” Barr replied.
5:20 p.m.: Barr says he would resign if Trump tried to fire someone to stop investigation
Barr told Sen. Christopher A. Coons (D-Del.) that if Trump tried to fire a prosecutor to end an investigation — such as a case in the Southern District of New York that appears to implicate him — he would resign.
“Usually, firing a person doesn’t stop the investigation; that’s one of the things I have a little bit of trouble accepting,” Barr said. “But the basic point is if someone tried to stop a bona fide lawful investigation, to cover up wrongdoing, I would resign.”
Barr also told senators that he would not force his views of the limits of laws governing obstruction of justice on Mueller, but would try to talk matters out with him “if I felt there was a difference of opinion.”
“Unless something violates established practice of the department, I would have no authority to overrule that,” Barr said.
Coons took Barr through a thought experiment of when and how Trump’s potential actions to deflect scrutiny of himself would run afoul of the law. Could he offer to pardon a member of his administration to prevent negative testimony about illegal acts? No, Barr said — if a pardon was offered as “a quid pro quo to alter testimony, then that would definitely” be obstruction of justice under the law.
But if Trump offers to pardon a family member — or himself? There, Barr guessed, the political consequences might be more severe than the legal ones.
“In my opinion … yes, he does have the power to pardon a family member — but he would then have to face the fact that he could then be held accountable for abusing his power,” Barr said. “In the absence of a violation of a statute … then he’d be accountable politically.”
5:15 p.m.: Barr says it’s ‘understandable’ a person who felt falsely accused would term investigation a ‘witch hunt’
In a sharp exchange with Sen. Mazie Hirono (D-Hawaii) late in the afternoon, Barr seemed to sympathize with the president’s characterization of Mueller’s probe as a “witch hunt,” saying it was “understandable” someone who felt falsely accused might lash out at the investigation into their conduct.
The comment came after Hirono offered a laundry list of her concerns about Trump, calling him a man who relentlessly attacks the media, who trusts the judgment of Russian President Vladimir Putin over his own intelligence community and who “lies every single day.”
“Are you concerned about the way Donald Trump undermines the institutions in our society?” Hirono asked.
“No,” Barr responded, and then, unprompted, added, “and I’d like to make a point about the witch hunt.”
Earlier in the hearing, Barr had said, “I don’t believe Mr. Mueller would be involved in a witch hunt.” But in responding to Hirono, Barr said: “We have to remember that the president is the one who has denied that there’s any collusion and has been steadfast in that. Presumably he knows facts” that outsiders don’t.
Barr added that it would be “understandable that if someone felt they were falsely accused,” that the person might view the probe of their conduct “like a witch hunt.”
“Well, you’re certainly coming to his defense,” Hirono remarked before moving to another topic.
5:10 p.m. Barr commits to supporting reauthorization of Violence Against Women Act
Barr committed to both Sen. Amy Klobuchar (D-Minn.) and Sen. Joni Ernst (R-Iowa) that he would support a reauthorization of the Violence Against Women Act — but acknowledged that he would need to get up to speed on the work the Justice Department does regarding it, as the office in question “didn’t exist, obviously,” when he was there before.
The Violence Against Women Act was first passed in 1994 — just after Barr ended his first term as attorney general under former president George H.W. Bush. He pledged to “familiarize myself with the office, its work and its programs, and strongly support that.”
Ernst also asked Barr to state how the Justice Department could better support states in matters of domestic violence, which is largely a crime tried in state courts. He guessed that “technical support and grants are the most effective means for the federal government to assist.”
Ernst also asked about how Barr planned to better combat Russian election interference. He said he wanted to “sharpen our legal tools” to focus not just on Russian nationals, “but nationals of any country that are interfering our elections.”
5:07 p.m.: Barr’s grandson steals the show
The breakout star of Barr’s confirmation hearings isn’t the attorney general nominee — but rather his grandson, Liam.
There he was, offering a mint to Klobuchar. Feinstein offered a care package to the 8-year-old. And senators from both parties praised Liam for his good behavior during the hours-long testimony on Capitol Hill.
“I told Liam that Grandpa ought to give him whatever he wants to eat for dinner tonight,” remarked Sen. Marsha Blackburn (R-Tenn.) before she began her questioning.
Liam is the son of Barr’s daughter, Mary Daly, a veteran federal prosecutor who works under Rosenstein. Barr noted that Daly’s husband, Michael Daly, is also a Justice lawyer, prompting the nominee to joke about Liam that he will “someday be in the Department of Justice.”
“Think about medical school, Liam,” Graham responded. “Somebody needs to make money in the family.”
Later, Liam was spotted by a Reuters photographer scribbling a note of encouragement to his grandfather. On a Senate notepad, Liam wrote: “Dear Grandpa, I love you so much. You are doing great so far … I am having so much fun.”
Liam also added this postscript: “I think Russia’s people are fine It is the government is the problem.”
4:50 p.m.: Barr says attorney general should ‘step down’ if president directs an illegal action
Sen. Amy Klobuchar (D-Minn.) pressed Barr in her second round of questioning about his prior statement that the attorney general functions as the president’s lawyer. That rankles some Democrats, who worry that it means Barr might not maintain the Justice Department’s historic independence from politics.
Barr said he held that view because in 1789, the Founding Fathers said the attorney general should provide legal advice to the president and his Cabinet. And if the president determined that he wanted to do something that was “a reasonable construction of law” — even if it was not what his attorney general might do — the attorney general should be supportive, Barr said.
Klobuchar asked what Barr would do, then, in a situation such as Watergate.
“If the president directs an attorney general to do something that is contrary to law, then I think the attorney general has got to step down,” Barr said.
4:30 p.m. Should Mueller’s report be released? The public seems to think so.
Democrats have devoted a significant amount of their time to questioning Barr on whether he will make Mueller’s eventual report public. Though Barr has broadly committed to making transparency a goal, he has stopped short promising to release whatever document Mueller produces in full.
The public seems to want Barr to reveal everything. In an NPR/PBS NewsHour/Marist poll conducted in November and December, roughly three-quarters of adults said the report should be made public in its entirety, including two-thirds of Republicans. About 9 in 10 Democrats said they felt the report should be made public.
4 p.m.: Barr ‘very concerned’ by courts blocking administration policies nationwide
Barr said he was “very concerned” by the rise of federal district courts issuing nationwide injunctions to hold back various policies of President Trump’s, such as Monday’s ruling by a Pennsylvania judge that stopped a rule change that would have made it harder for some to access birth control.
“There are a lot of district court judges, and you can usually find one somewhere in the country that will agree with you,” Barr said, noting he took issue when a judge with limited jurisdiction “tries to grant relief to people who are not part of the case or controversy being decided.”
“Major democratic decisions can be held up by one judge nationwide,” he complained — stressing that it was particularly concerning that some judges had started to weigh in on matters of national security.
“The appeals process takes a long time, so a lot of damage can be done before it gets to the Supreme Court … and meanwhile everything is stuck,” Barr complained.
The practice of district judges issuing nationwide injunctions against Trump’s policies began with the president’s travel ban — which was blocked by lower courts but ultimately upheld by the Supreme Court after multiple modifications. Barr stressed that when the president makes emergency decisions, “he’s politically accountable for that — and yet a judge with a lifetime appointment sitting somewhere in the country … can stop a national security measure, globally essentially.”
“That’s really troublesome to me,” Barr concluded.
Sen. Josh Hawley (R-Mo.) also asked Barr whether he would continue to defend the administration’s decision to add a citizenship question to the 2020 census — a change that a federal judge ruled against Tuesday, likely sending the matter to the Supreme Court.
Barr said that “generally, I have no reason to change that position.”
3:50 p.m.: ‘I wasn’t trying to ingratiate myself with anybody’
Pressed again by Sen. Richard J. Durbin (D-Ill.) about the memo he sent questioning Mueller’s obstruction probe, Barr insisted he was not trying to make nice with the White House in hopes of securing a job in the administration.
Durbin keyed in on a line in Barr’s memo, in which he suggested Mueller should not be allowed to question Trump about obstruction.
“I’m trying to get around this,” Durbin said, adding that it felt as if Barr was trying to “ingratiate” himself with the White House.
Barr said that his assessment was based only on public reports that suggested Mueller’s obstruction case was centered on the firing of James B. Comey as FBI director, and Trump’s having asked Comey to shut down an investigation into former national security adviser Michael Flynn.
“I didn’t think it was an adequate predicate,” Barr said. He disputed the idea that his memo was meant to forge a relationship with the White House in hopes of getting a job.
“I can assure you I wasn’t trying to ingratiate myself with anybody,” Barr said. “The furthest thing in my mind was coming back into government.”
3:40 p.m.: Barr calls gun violence ‘the problem of our time’
Calling the gun violence epidemic the “problem of our time,” Barr called for improvements in state gun laws that would help authorities detect people with mental illnesses to ensure they don’t have access to firearms.
In his afternoon testimony, Barr acknowledged that the current background check system for firearms is “sort of piecemeal” and called for states to pass red flag laws, which would allow guns to be temporarily seized from those people deemed a threat. Such laws would help supplement background checks to ensure people with mental illnesses could not obtain a gun, Barr said.
“This is the single most important thing I think we can do in the gun control area to stop these massacres from happening in the first place,” Barr said under questioning from Feinstein, one of the fiercest advocates of stricter gun laws.
Barr added, “We really need to get some energy behind it and get it done.”
The attorney general nominee continued to speak about gun policy under questioning from Sen. John Cornyn (R-Tex.). Barr said while the right to own a gun is protected under the Second Amendment, “there’s room for reasonable regulation” on firearms laws.
“What I would look for is . . . what’s the burden on law-abiding people, and is it proportionate to whatever benefit in terms of safety and effectiveness will be conferred?” Barr told Cornyn. “As I said just a moment ago, let’s get down to the real problem we’re confronting, which is keeping these weapons out of the hands of people who are mentally ill.”
3:30 p.m. Feinstein presses for commitment to make Mueller report public
Feinstein pressed Barr to do whatever he can to bring Mueller’s findings to Congress and the public, while cautioning that Justice Department regulations argue against making public a report from Mueller.
“The regs do say that Mueller is supposed to do a summary report of his prosecutive and his declination decisions, and they will be handled as a confidential document, as are internal documents related to any federal criminal investigation,” said Barr, adding that the attorney general still “has some flexibility and discretion in terms of the attorney general’s report.”
Barr repeated that he wants “to get as much as I can of the information to the Congress and the public,” and added that he did not know what conversations Mueller and Deputy Attorney General Rod J. Rosenstein may have already had on how to make a public announcement.
Feinstein urged him to reveal as much as he can, saying, “I think there has to be a realization too among the administration that this is an issue of real concern to the people, and to Congress, and we should be able to see the full information that comes out.”
3:05 p.m.: Barr again talks about his Mueller memo
Barr gave yet another reckoning of his pivotal Mueller memo at the invitation of Sen. Thom Tillis (R-N.C.), during which he stressed that expanding the obstruction of justice laws could “essentially paralyze the government.”
Barr said he was motivated to write the report because he was worried that Mueller might be interpreting a law that forbids the destruction of evidence to obstruct justice “to say that any act to influence a proceeding may be a crime if it’s done with a bad intent.”
“That’s what the people at Justice do every day of the week, is influence proceedings — that’s what they’re there for,” Barr said. He raised the example of former attorney general Eric Holder making controversial pardon recommendations — noting that he had actually supported Holder for the job.
“Could someone come along then later and say, ‘You did that for political reasons to help Clinton run in New York — that’s a crime,’ when he’s exercising his prerogative?” Barr said. “You can see how that would paralyze the government, and that was my concern.”
He said it was a similar rationale that drove him to support Sen. Robert Menendez (D-N.J.) in the corruption case against him, as he had engaged in “activities that were not wrongful acts in themselves.”
“Then the prosecutor comes in and says, ‘We’re going to look into your mind and see what your intent was in performing these two lawful acts,’ ” Barr said. “It’s too much power to the prosecutor.”
2:50 p.m.: Barr declines to promise he’ll follow recusal advice from Justice ethics officials
Barr made clear earlier in the hearing that he, not ethics officials, would decide whether he will step aside from supervision of the Mueller probe. He repeated that assertion more forcefully under questioning from Sen. Kamala D. Harris (D-Calif.).
“It’s a judgment call, and the attorney general is the person who makes the judgment, and that’s what the job entails,” Barr said.
Harris pressed the nominee, “Under what scenario would you imagine that you would not follow the recommendation of the career ethics officials?”
Barr was blunt.
“If I disagreed with them,” he said.
2:45 p.m.: Barr says ‘we’re not going to go after’ marijuana in states where it’s legal
Midway through Tuesday’s hearing, Barr made clear he personally would support marijuana being illegal everywhere. But under questioning from Sen. Kamala D. Harris (D-Calif.) about states that have legalized it, he made a promise that will likely hearten those involved in selling and using the drug.
“To the extent that people are complying with the state laws, distribution and production and so forth, we’re not going to go after that,” Barr said.
Barr then stressed “we can’t stay in the current situation,” and called on Congress to pass a law that will resolve nationwide how law enforcement should treat marijuana.
2:40 p.m.: ‘Are you advocating a wall?’
As she began her questioning of Barr, Sen. Kamala D. Harris (D-Calif.), a potential 2020 presidential contender, asked him point blank about his views about the Trump campaign promise and border security proposal that has brought the government to a halt.
“Are you advocating a wall?” she said.
At first, Barr declined to adopt the president’s preferred term.
“I think I’m advocating a system, a barrier system, in some places, and I’d have to find out more about the situation since I last visited the border,” he said.
Harris pressed: Would a wall help stop the flow of drugs over the border — a concern Barr had raised earlier in the hearing.
“A wall certainly would, but in some places it may not be necessary to have what most people imagine as a wall,” Barr said.
At Harris’s questioning, Barr acknowledged most drugs come through ports of entries — not at points along the border, which a wall might block. He also acknowledged he had not visited such a port since he was attorney general decades ago.
2:15 p.m.: Barr says he would support ‘a federal law that prohibits marijuana everywhere’
Barr said he personally would support “a federal law that prohibits marijuana everywhere,” calling the current patchwork system of state laws “untenable” and “almost like a backdoor nullification of federal law.”
But he also pledged not to “upset settled expectations” based on state laws to legalize marijuana, as businesses and individuals have come to rely on the loosening of restrictions.
Booker pushed Barr to explain why he had continued to argue against bipartisan legislation to reduce sentences for drug crimes as late as 2016. Barr argued that “when you have violent gangs . . . sometimes the most readily provable charge is the drug trafficking” and that by charging individuals with drug offenses, “you can be taking out a lot of violent offenders.”
Booker leaped on the comments, stressing to Barr that his views were a relic of a past age — and coming from the top law enforcement officer in the country, could encourage the sort of racial discrimination that has led to the overincarceration of African Americans.
“It’s language like that that makes me kind of concerned and worried,” Booker said of Barr arguing stiff drug charges were an effective way of combating violent crime.
Booker delivered an at times rambling but passionate explanation for why the data — which Barr acknowledged he had not reviewed — showed that the system was “rife” with racial bias that was hurting communities, appealing to Barr to reconsider his past views, and pleading with Barr to at least commission a study to understand why liberals and conservatives alike had determined that the system needed to change.
“Of course I’ll commit to studying,” Barr said, arguing that in the early 1990s, he had been trying to help black communities achieve a reduction in crime, but had recognized that “the heavy drug penalties . . . have harmed the black community and the incarceration rates in the black community.”
2 p.m.: Barr says Trump ‘absolutely’ did not ask him to interfere in Mueller investigation
The president “absolutely” did not ask Barr to interfere with the special counsel investigation, nor did any other official in the White House, Barr testified under questioning from Sen. John Neely Kennedy (R-La.).
Barr also said he does not know of any other examples of potential interference in the Mueller probe, although he noted that he is not privy to nonpublic information about the special counsel investigation. And when asked whether Mueller could handle any instances of interference with his probe, Barr responded: “He’s a Marine.”
Barr also took a gentle approach to Justice Department leaks, acknowledging that it’s a “difficult one to address.”
“I think the first thing is to make it clear that there’s an expectation that there are no leaks and punish people through internal discipline if there are leaks,” Barr said.
1:45 p.m.: Barr suggests Mueller’s long-awaited report might not be made public
In a back-and-forth with Sen. Mazie Hirono (D-Hawaii), Barr threw cold water on the notion that Mueller’s report might be made public.
“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,” Barr said.
Declination memos are written by Justice Department officials when they decline to file charges against individuals, essentially ending an investigation. Those memos are held very closely inside the government and not released to the public. By comparing any Mueller report to a declination memo or a prosecution memo, Barr’s answer suggested the long-awaited report from the special counsel may not see the light of day.
Besides that report, Barr said, the attorney general is “responsible for notifying and reporting certain information upon the conclusion to the investigation.”
“My goal and intent,” he insisted, “is to get as much information out as I can.”
Hirono also criticized him for not promising to follow any recommendation of Justice Department ethics officials, who may review whether Barr should recuse himself from the Russia investigation.
“I am not going to surrender the responsibilities of the attorney general to get the title, I don’t need the title,” Barr said.
“You have it within your power to follow the ethics advice of your own department and you’re telling us you’re not going to,” Hirono said.
1:30 p.m.: Barr says Trump is ‘free to fire his officials that he’s appointed,’ but he wouldn’t stand by if someone was removed to stop investigation
Barr said that he “would not stand by and allow a U.S. attorney to be fired for the purpose of stopping an investigation” — but stressed that Trump “is free to fire his officials that he’s appointed.”
Barr refused to pledge to Sen. Richard Blumenthal (D-Conn.) that he would not intervene in the investigations into Trump being run by the Southern District of New York, the Eastern District of Virginia, and other federal courts, arguing the request was as offensive as if Trump had asked him to pledge to a particular course of action.
“You would not like it if I made some pledge to the president,” Barr said. “I’m not going to make a pledge to anyone on this committee” to exercise his duties “in some particular way.”
“I have a responsibility to use my judgment and discretion … I’m not going to go around saying this U.S. attorney or that U.S. attorney I’ll defer to,” he added.
Barr’s exchange with Blumenthal was tense, as Blumenthal sought to get the nominee to say that he found reports that the FBI believed there was reason to launch a counterintelligence investigation against Trump “stomach-turning.”
“I’m not sure what you’re talking about,” Barr said, later asking, “What would be stomach-turning about that?”
He also refused to promise that he would explain to Congress “any deletions or changes” he made to Mueller’s report before it was released.
“I will commit to providing as much information as I can consistent with the regulations … that would be my intent,” he said, noting he couldn’t give specifics as he didn’t “know what kind of report is being prepared, I have no idea, and I have no idea what [deputy attorney general] Rosenstein has discussed with him.”
Blumenthal also asked Barr to explain whether his past opposition to Roe v. Wade would affect how he would defend it as attorney general. Barr said the law was “established precedent,” adding that he would “absolutely” defend the Freedom of Access to Clinic Entrances Act as well.
1:15 p.m.: Barr says Putin is ‘potent rival’ of the U.S.
Barr called Russian President Vladimir Putin a “potent rival” of the United States whose aim is to weaken American alliances throughout Europe — yet also warned that he believes China posed a major threat.
“I don’t hold myself as a foreign policy expert, but I think the Russians are a potent rival of our country and his foreign policy objectives are, usually are directly contrary to our goals,” Barr told Sen. Ben Sasse (R-Neb.), who asked Barr whether Putin was a friend or foe. “A lot of his foreign policy objectives are at odds with ours.”
He also stressed he believes the intelligence community’s assessment that Russia interfered in the 2016 U.S. presidential elections to aid Trump. But Barr added that he wants to ensure the “fixation on Russia” does not “obscure the danger from China.”
Under questioning from Sasse, Barr also echoed a common theme from the hearing and pledged independence as attorney general, telling senators that he would quit rather than carry out an unlawful directive.
“If I was ever asked to do something that I thought was unlawful and directed to do that, I wouldn’t do it, and I would resign rather than do it,” Barr said. “But I think that should be true of every officer who serves anywhere in the government, whatever branch.”
The headline of this post has been updated.
1 p.m.: Barr says he would not carry out order to fire Mueller, absent good cause
Barr said Tuesday he would not carry out an order from the president to fire the special counsel, unless there was good cause to do so.
The remark came as Sen. Christopher A. Coons (D-Del.) pressed Barr on just how much independence the attorney general nominee would give Mueller, if confirmed.
Drawing parallels to the Watergate era, Coons noted then-attorney general nominee Elliot Richardson, who resigned when ordered to fire a special prosecutor, had made vast commitments to Congress about that prosecutor’s independence, and Coons asked if Barr would do the same.
Barr stopped short of making the promises that Richardson did.
Asked by Coons, “Do you want special counsel Mueller to shield no one and prosecute the case regardless of who is affected?” Barr responded, “I want special counsel Mueller to discharge his responsibilities as a federal prosecutor, and exercise the judgment that he’s supposed to exercise under the rules.”
Asked about whether he would leave prosecutorial decisions entirely to Mueller — as Richardson promised to do for a special prosecutor — Barr noted the special counsel regulations gave him the power to veto major steps. That veto, he noted, would have to be reported to Congress.
“Under the regulations, there is the possibility of that, but this committee would be aware of it,” Barr said. “A lot of water has gone under the dam since Elliot Richardson.”
Coons then noted the special counsel regulations envision Mueller being fired only for “good cause,” and asked about the possibility of Trump ordering Barr to withdraw them.
“I think those special counsel regulations should stay in place for the duration of this investigation, and we can do a post mortem then, but I have no reason to think they’re not working,” Barr said.
Coons pressed further. What if Trump ordered him to withdraw the regulations and fire Mueller. Would Barr resign, as Richardson did?
“Assuming there was no good cause?” Barr clarified, then added, “I would not carry out that instruction.”
12:40 p.m.: Barr cautiously sides with Trump in shutdown showdown, says ‘it’s imperative to have border security’
Barr carefully took Trump’s side in the shutdown showdown during his confirmation hearing, stressing that he “would like to see a deal reached whereby Congress recognized that it’s imperative to have border security and that part of that border security, as a common-sense matter, needs barriers.”
Sen. Amy Klobuchar (D-Minn.) had asked him to deliver a message to furloughed workers — and challenged his assessment, pointing out that the Senate had endorsed plans previously to devote billions to border security on a bipartisan basis, that the president had shot down.
“The point is we need money right now for border security, including barriers and walls and slats and other things,” Barr retorted.
Klobuchar also invoked Barr’s controversial memo criticizing the Mueller probe’s focus on obstruction of justice as it pertains to former FBI director James B. Comey’s firing. But unlike her Democratic colleagues, she did so in an effort to prove that Barr had already laid out other grounds in which the president could be considered guilty of obstruction: if he drafted a false statement, such as about the Trump Tower meeting; if he knowingly destroyed evidence — as he is alleged to have done with a translator’s notes — or if he encouraged witnesses to lie by offering them pardons.
Barr did not take the bait, answering each question with a version of: “I’d have to know the specifics.”
He also did not follow Klobuchar’s lead when she asked him if he would commit to not “jail reporters for doing their jobs” reporting on the department. Barr answered that he could “conceive of situations . . . as a last resort” when holding a reporter in contempt would be a reasonable action, “where a news organization has run through a red flag or something like that.”
He did not specify what would constitute a red flag — nor did he seem swayed when Klobuchar told him that former attorney general Jeff Sessions had committed to look into changing those rules.
He also criticized Sessions for committing to following the advice of Justice Department ethics officials when it came to recusing himself from the Mueller probe, calling it “an abdication of his own responsibility.” That is despite having said this morning that Sessions likely made the right call to recuse.
That distinction may be a sign of what may be to come, if Barr is confirmed. Several senators have asked Barr to seek ethics officials’ advice about whether he too should recuse himself from overseeing Mueller’s probe. Barr has said he would seek the advice — but he has not committed to follow it.
12:30 p.m.: Barr says he supports ‘barrier system across the border’
Under questioning from Sen. Joni Ernst (R-Iowa), Barr said he was supportive of a “barrier system across the border” and he would likely support a law change that would allow for the detention of illegal immigrants accused of hurting or killing someone.
Ernst told Barr she planned to introduce a bill — known as “Sarah’s Law” — that would require illegal immigrants charged with crimes in which someone was injured or killed to be detained. The bill, Ernst said, is named after Sarah Root, who was killed by a drunk driver in the country illegally. The driver, Ernst said, was allowed to post bond in the case and “has not been seen since.”
Barr said of the proposal, “That sounds like a very common-sensical bill and something that I would . . . be inclined to support,” adding that broader immigration laws were in need of reform.
Barr singled out in particular the asylum system, which he said was being abused by migrants who are “coached” on what to say to those processing their claims and eventually released into the United States because there are not enough facilities to hold them.
“This was a big abuse 27 years ago, and it’s gotten worse,” Barr said. “And so we need to change the laws and stop that kind of abuse.”
Asked about various border security issues, Barr endorsed the need for some type of “barrier” on the U.S. boundary. That echoes Trump, who has pushed for a wall on the southern border so intensely that it has left him in a standoff with Democrats and resulted in the shutdown of the government.
“We need a barrier system across the border, part of that is illegal immigration, but a big part of that also is preventing the influx of drugs,” Barr said.
12:20 p.m.: Barr says he had no involvement in Rosenstein’s decision to depart, though he was given choice of his own deputy
Barr said he had no involvement in Deputy Attorney General Rod J. Rosenstein’s decision to leave the Justice Department in the coming weeks, saying instead that the No. 2 DOJ official said he sees Barr’s confirmation as a natural transition point.
Sen. Sheldon Whitehouse (D-R.I.) asked Barr whether he made it a condition of his nomination that Rosenstein would have to go. Barr said it was not.
“The president said the decision on the deputy was mine,” Barr said as the afternoon session of his confirmation hearing began. “Rod and I have been talking about . . . his plans. He told me that he viewed it as a two-year stint and would like to use if I’m confirmed, my coming in as an occasion to leave.”
Barr also testified that in his view, only the attorney general and the deputy attorney general should be allowed to communicate on criminal matters with the White House.
That statement came as the senator questioned Barr about a November report from Vox that the current acting attorney general, Matthew G. Whitaker, advised Trump on how the White House could pressure DOJ to investigate the president’s political enemies when Whitaker was serving as the chief of staff at the department.
Pressed whether that report was consistent with his views on communications with the White House, Barr responded: “It would depend upon what his understanding is with the attorney general.”
11:30 a.m.: Barr says he will ‘strike the right balance’ on asset forfeiture
Barr pledged that he would seek to “strike the right balance” when it comes to the Justice Department’s policy on civil asset forfeiture — the practice of seizing cash or other property from people suspected of crimes that has come under significant scrutiny from libertarian Republicans.
Under questioning from Sen. Mike Lee (R-Utah), Barr said he would review the department’s current practices on civil asset forfeiture and that he believes “constant vigilance is necessary.”
“I plan to get into it and see exactly what the horror stories are, where the problems and potential abuses are and also whether [former] Attorney General [Jeff] Sessions’s guidelines are providing sufficient protection,” Barr told Lee. “At the same time, I think it is a valuable tool in law enforcement.”
Sen. Rand Paul (R-Ky.) said in an interview on “Meet the Press” last month that he was “disturbed” that Barr appears to be a “big fan of taking people’s property” without due process.
“Many poor people in our country have cash taken from them and then the government says, ‘Prove to us where you got the cash,’ and then you can get it back,” Paul said last month. “But the burden is on the individual. It’s a terrible thing called civil asset forfeiture. He’s a big fan of that.”
The hearing is on a break until 12:15 p.m.
11:15 a.m.: Barr says government must do a better job of stopping inflow of overseas drugs
As part of Barr’s pledge to support criminal justice reform, he called on the administration’s diplomatic force to do a better job getting foreign governments to stop the inflow of drug shipments from overseas.
“The head of the snake is outside the country, and the place to fight this aggressively is at the source more than on the street corner,” Barr said. “I used to say we could stack up generation after generation of people in prison and it’ll still keep on coming.”
Barr made his comments as part of a defense he offered for his hard-line position on prosecuting drug offenders — something he said he pursued as a response to community leaders who, in the early 1990s, were appealing to the administration to do something about the crack epidemic. He said that the administration should listen to community leaders again who are testifying that those harsh penalties were incarcerating too many individuals and thus, ruining lives.
“I understand that things have changed since 1992. I held on a little bit longer to keeping strong sentences maybe than others,” Barr said, noting that he had not been serving at the Justice Department for several years. “I support an adjustment to these sentences and the safety valve and so forth.”
But Barr stressed that international options were the only way to address the new drug epidemics ably.
“Fentanyl is sort of the new crack,” Barr said. “And they’re coming in from China.”
Though Barr addressed the drug crisis directly, he effectively dodged questions from Sen. Richard J. Durbin (D-Ill.) about what he would do regarding the administration’s family separation policy and the “zero-tolerance policy” toward illegal immigration offenses his predecessor Jeff Sessions had endorsed.
“I’m not sure I know all the details, because one of the disadvantages I have is I’m not in the department,” he said, noting that he believed the Department of Homeland Security makes the judgment calls about who should be referred to Justice to be prosecuted for illegal entry.
“Now what is being done is DHS is not referring for prosecution family units that will lead to the separation of children,” he said.
11:10 a.m.: Barr says he won’t ‘be bullied into doing anything I think is wrong’
Barr vowed Tuesday that he would not “be bullied into doing anything I think is wrong” — not by the media, or Congress, or, critically, the president.
Barr made the statement in response to a question from Sen. Richard J. Durbin (D-Ill.) about when he might have his “Jim Mattis moment” of breaking with the president so fiercely on policy he might contemplate resigning. Mattis is the former defense secretary who announced his resignation late last year amid disagreements with the president.
Durbin also asked why, given the number of people leaving the administration, he wanted the attorney general job at all.
“I feel that I’m in a position in life where I can provide the leadership necessary to protect the independence and the reputation of the department,” Barr said. He added that if he were 45 or 50 years old, the deluge of personnel exiting or otherwise breaking with Trump “might give me pause … but it doesn’t give me pause right now.”
“I love the department and all its components, including the FBI — I think they’re critical institutions that are essential to preserving the rule of law,” he told Durbin, promising: “I’m going to do what I think is right.”
11:05 a.m.: Barr says its ‘ludicrous’ to allege his comments on Mueller were a bid to get attorney general job
Barr called it “ludicrous” that his public comments critical of the Mueller investigation were a way of publicly auditioning for the attorney general job, and he promised that no changes will be made to the special counsel’s report before its public release.
Barr also stressed that Mueller could only be terminated “for good cause” as he was questioned by Sen. Patrick J. Leahy (D-Vt.) on several facets of the special counsel probe.
“Under the regulations, Bob Mueller could only be terminated for good cause and frankly it’s unimaginable to me that Bob would do anything that gave rise to good cause,” Barr said. He also said any transgression would have to be “pretty grave” and that the “public interest would have to compel” Mueller being terminated.
Barr again sought to downplay his comments critical of the Mueller probe, including his remarks that he wished Mueller’s team of lawyers were more politically balanced. Barr said that comment was “very mild.”
He also said it was “ludicrous” that he was auditioning for the attorney general post through his comments, saying: “If I wanted the job, and I was going after the job, there are more direct ways to bringing myself to the president’s attention.”
Barr pledged to seek counsel from career Justice Department ethics officials about whether he should recuse himself from overseeing the special counsel’s investigation, but that ultimately, the final decision would be up to him as head of the department.
Still, Barr stressed: “I believe the Russians interfered or attempted to interfere with the election, and I think we have to get to the bottom of it.” He also said under questioning that for a president to pardon someone in exchange for that person not incriminating him would be wrong: “That would be a crime.”
11 a.m.: ‘I’m in a position in life where I can do the right thing and not really care about the consequences.’
Barr offered an unconventional rationale for how he could steer clear of politics if confirmed as attorney general — that he was too old to care about becoming unpopular.
“I feel I’m in a position to be independent,” Barr told Sen. John Cornyn (R-Tex.). As attorney general, he said, “you have to be willing to spend all of your political capital and have no future. I feel like I’m in a position in life where I can do the right thing and not really care about the consequences.”
Previously, Barr noted at the hearing that he was nearing semiretirement when the possibility of serving as attorney general came up.
Under questioning from the Republican senator, he was also sharply critical of former FBI director James B. Comey’s handling of the Clinton email case that roiled the 2016 election.
“I think Jim Comey is an extremely gifted man who has served the country with distinction in many roles, but I thought to the extent that he actually announced the decision [not to charge Clinton], was wrong,” Barr said. “The other thing is, if you’re not going to indict someone, you don’t stand up there and unload negative information about the person. That’s not the way the department does business.”
That last point could be an important one if Barr does take charge of the Mueller investigation. If Barr applies that same rationale to the resolution of the Mueller investigation, he might well decide that it is inappropriate for the Justice Department to provide negative information about any individuals who were not charged or accused of crimes by Mueller — leaving some lingering questions unanswered.
10:50 a.m.: Barr details his discussions about possibly being Trump’s lawyer
Barr detailed for the first time the discussions he had about becoming part of Trump’s legal team, characterizing the idea as a short-lived one.
Barr said in the middle of June 2017, he was approached by David Friedman, the U.S. ambassador to Israel. Friedman, Barr said, wanted to talk about Trump’s legal defense.
“My understanding was he was interested in finding lawyers that could augment the defense team, and failing that, he wanted to identify Washington lawyers who had broad experience, whose perspective might be useful to the president’s,” Barr said.
Barr said Friedman asked him a number of questions, including what he had said about Trump publicly, and whether he might have any conflicts.
“I told him that I didn’t think I could take this on,” Barr said. He said he told Friedman he had just taken on a corporate client, and he preferred the freedom of not representing a person.
“And I said that my wife and I were sort-of looking forward to a bit of respite, and I didn’t want to stick my head into that meat grinder,” Barr said.
Barr said Friedman asked if he would meet with Trump, and he agreed to do so. He said Friedman brought him to the White House and, before what seemed to be a staff meeting, he went to see the president.
Trump, Barr said, asked him questions about Mueller. Barr said he told Trump he was friends with the special counsel and his family, and they “would be good friends when this was all over.” He said Trump asked about Mueller’s integrity.
“I said Bob was a straight shooter and should be dealt with as such,” Barr said he responded.
Barr said he ultimately told the president he wasn’t interested in being his lawyer.
“I said, ‘Mr. president, right now, I couldn’t do it,’” Barr said. He said Trump asked for his phone number, and he did not hear from him again — until Trump was interested in selecting him as attorney general.
The conversations are key, because Democrats are likely to use Barr’s interactions with the White House to press him to recuse himself from the Mueller probe.
10:45 a.m.: Barr defends old-school approach to criminal justice, but says he has ‘no problem with the approach of reforming the sentencing structure’
In his last stint as attorney general, Barr espoused a hard-line view on criminal justice issues that might be out of line with current reforms. But Barr argued that it was unfair to compare the Justice Department’s approach to criminal justice in the early 1990s to the situation today.
“In 1992, when I was attorney general, the violent crime rates were the worst in American history, the sentences were extremely short,” Barr said, noting average sentences for rape were three years, and murder, just five to seven. “The system had broken down, and through a series of administrations, the laws were changed.”
He credited the drop in the crime rate since to the policies they implemented against “chronic violent offenders, especially those using guns.” But he agreed with Grassley that today, “the time was right to take stock and make changes to our penal system, based on current experience.”
“I have no problem with the approach of reforming the sentencing structure and I will faithfully enforce that law,” Barr said.
10:40 a.m.: Grassley presses for assurances that Barr will be responsive to Congress
Sen. Charles E. Grassley (R-Iowa), the former judiciary chairman, sought multiple assurances from Barr that the Justice Department under his leadership would not stonewall requests for information from members of Congress, even if they were not leading committees.
Complaining of “people in the bowels of bureaucracy saying if you’re not a chairman, you ain’t going to get an answer to anything,” an agitated Grassley made several complaints, specific and generally, about how little the Trump administration had responded to requests for information from members of Congress — who, he stressed, were constitutionally obligated to conduct oversight.
Barr sought to assuage Grassley’s concerns, reminding him that in his former stint as attorney general, “we were able to establish very cooperative and productive relationships with all the members,” and assuring him that “that will be the same approach I will bring to the job if reconfirmed.”
“If I were you, I’d answer his letters,” Graham piped in, inspiring laughter that cut the tension in the room.
Graham also sought assurances from Barr that he would offer real protections to whistleblowers and commit to working with Congress to implement criminal justice reforms.
On whistleblowers, Grassley cited a 2018 document from the Trump administration, known as the “Granston memo,” that he believes offers the executive too many excuses to dismiss cases brought under the False Claims Act, which provides whistleblowers a modicum of legal protection. Barr said he was unfamiliar with the memo, but would review it and discuss it with Grassley if confirmed.
10:35 a.m.: Barr confirms he spoke with White House officials about Mueller — but, for now, doesn’t get a chance to offer details
Barr said he discussed the Mueller investigation with White House officials, but not in any detail. Barr also said he spoke with Trump once when he was considering representing the president in the investigation.
In a tantalizing exchange that raised more questions than it answered, Barr told lawmakers he had spoken to White House officials about Mueller.
Barr said his conversation with Trump was before he came under consideration to become attorney general.
“I had one conversation with him related to his private representation, and I can describe that for you,” Barr told Feinstein.
Asked if he had discussed the Mueller investigation with the president “or anyone else in the White House,” Barr responded: “I discussed the Mueller investigation, but not in any particular substance.”
The exchange came at the end of Feinstein’s first question period, and the senator said she would ask him later about what was said.
She also pressed him about the June 2018 memo he wrote to Justice Department officials criticizing what he believed was Mueller’s legal theory of how the president may have obstructed justice by firing FBI Director James B. Comey in May 2017.
Pressed to explain how Barr could know Mueller’s legal view of obstruction of justice, Barr answered: “I was speculating. I was writing in the dark, and we’re all in the dark.”
10:30 a.m.: Barr offers new details on memo questioning Mueller’s obstruction case
Under questioning from Graham, Barr offered more insight into why he wrote a memo critical of what he thought Mueller’s theory was on how the president obstructed justice, and with whom he spoke about it.
Around June 2017, Barr said, he began noticing news reports about possible theories of obstruction of justice Mueller might be looking into. Though he acknowledged he “had no facts,” Barr said he was concerned about the precedent Mueller might be setting.
“It would do it in a way that would have serious, adverse consequences for all agencies that are involved in the administration of justice, especially the Department of Justice,” Barr said. “I wanted to make sure that before anyone went down this path, if that was in fact being considered, that the full implications of the theory were being thought out.”
Barr said he set out to get his views in front of the lawyers involved in the case. He said he broached the subject with Deputy Attorney General Rod J. Rosenstein at a lunch.
“He did not respond and was sphinx-like in his reaction, but I expounded on my concerns,” Barr said.
Barr said he inquired with someone else about whether Rosenstein would prefer a short, one-page opinion, or a more detailed legal analysis. At that point, Graham interrupted with a joke, asking if Barr felt Trump was a “one pager kind of guy.”
Barr did not seem to comprehend the joke at first, saying, “Excuse me?” Then it seemed to dawn on him.
“I suspect he is,” Barr said.
Barr said it was not uncommon for him to share his view on a legal matter with the Justice Department. He said he called three times — twice to Attorney General Jeff Sessions and once to Rosenstein — to raise critical questions about the prosecution of Sen. Robert Menendez (D-N.J.).
10:20 a.m.: Graham digs into accusations of Justice Department bias
Graham used his opening questions to resurrect accusations that bias in the Justice Department and the FBI affected federal law enforcement agencies’ scrutiny of Trump — and challenge the nominee to agree that they were troubling.
Graham read out several texts that former FBI employees Peter Strzok and Lisa Page, both of whom were involved in probes of Trump and Hillary Clinton’s emails, expressing clear disregard for Trump — and asked Barr for his take on them.
“I was shocked when I saw them,” Barr said.
A Justice Department inspector general report from last year found that while individuals at the FBI — including Strzok — had demonstrated clear evidence of personal bias against Trump, that bias had not affected the outcome of the investigations into Clinton.
Graham also challenged Barr to say whether he would assure that procedures would be followed, and law enforcement agents held accountable for procuring warrants to conduct surveillance on individuals suspected of improper foreign contacts. Barr pledged to.
“We’re relying on you to clean this place up,” Graham told Barr.
Graham has promised to pick up the investigation of so-called “FISA abuse” where House Republicans left off, despite the fact that Democrats have decried the investigative course as nothing more than a ruse to undermine the foundation of Mueller’s probe.
Graham maintains, however, that he supports Mueller’s probe. He also sought confirmation from Barr that Mueller was not on a witch hunt. Barr agreed.
“I don’t believe Mr. Mueller would be involved in a witch hunt,” Barr said.
Barr also told Graham that then-Attorney General Jeff Sessions “probably did the right thing recusing himself” from Mueller’s probe. It was the answer Graham was looking for.
10:15 a.m.: Barr says he will look into FBI’s opening counterintelligence investigation into Trump
Barr pledged in his first round of questioning that he would look into whether the FBI opened up a counterintelligence investigation that sought to determine whether Trump was seeking to help Russia.
The New York Times revealed the counterintelligence probe late last week. Barr said he had never heard of such a thing and, when asked by Graham whether there were any checks and balances to such investigations, Barr responded: “Not outside the FBI.”
“We should always be on guard about the politician interfering in an investigation,” Graham said. “But we should also have oversight on how the department works and those with tremendous power use that power.”
10:10 a.m.: Barr’s introducer: former senator Orrin Hatch
Barr was formally introduced to the committee by former senator Orrin G. Hatch, a Utah Republican who praised the former attorney general effusively.
“There is no question, none whatsoever, that Bill is well-qualified to serve as attorney general,” said Hatch, who once led the Senate Judiciary Committee.
Hatch said he would not bother reciting Barr’s impressive résumé, but would speak instead to his character. Barr, he said, was most proud of his time as attorney general in the early 1990s for how he responded to a hostage standoff at a federal prison in Alabama.
After more than 100 detainees took 10 hostages captive inside the prison in Talladega, Barr and other Justice Department officials tried to find a peaceful ending to the crisis, Hatch said. The detainees were Cubans who were angry they had been ordered sent back to that country.
“The standoff lasted 10 days. Then, on Bill’s order, FBI agents stormed the prison,” Hatch said. Within three minutes the hostages were freed and “the federal agents did not even have to fire a single shot. Bill’s decision-making and judgment saved lives.”
10:05 a.m.: In opening statement, Barr vows to let Mueller probe finish
As he opened his testimony, Barr read nearly verbatim from written testimony the Justice Department released Monday. He vowed to let the Mueller probe finish and said it was important Congress and the public be informed of the results.
10 a.m.: Feinstein says she is concerned about Barr’s views on presidential power
In her opening statement, Feinstein said she planned to question Barr aggressively about a memo he wrote questioning Mueller’s ability to explore whether Trump obstructed justice — which she said demonstrated Barr’s “sweeping view of presidential authority.”
Feinstein said she was “pleased” Barr had said in written testimony it was important for Mueller to be allowed to finish his work, but the sentiments he expressed in the memo gave her pause.
“It does raise questions about your willingness to reach conclusions before knowing the facts,” Feinstein said, adding that she feared it also might show a “determined effort . . . to undermine Bob Mueller.”
Feinstein read lengthy sections from the memo, noting that Barr had said “the president’s law enforcement powers extend to all matters, including those in which he has a personal stake, and that the Constitution places no limits on the president’s authority to act on matters which concern him or his own conduct.
“Let me just say that, some of your past statements on the role of attorney general and presidential power are concerning,” Feinstein said. She said she would seek to have Barr guarantee he could be independent from Trump.
“You must have the integrity, the strength and the fortitude to tell the president no, regardless of the consequences,” Feinstein said. “So, my questions will be, do you have that strength and commitment to be independent of the White House pressures you will undoubtedly face?”
9:55 a.m. Barr hearing is historic for women on the Judiciary Committee
The Barr hearing is a historic marker for the women of the Senate Judiciary Committee, who for the first time, are represented on both sides of the aisle.
Sens. Joni Ernst (R-Iowa) and Marsha Blackburn (R-Tenn.) were present at the start of the Barr hearing, as the first two Republican women to ever serve on the panel in its 200-plus-year history.
“Thank you for making history, I think, on our side,” Chairman Graham said, welcoming both to the panel.
Feinstein — the first woman to lead the Democratic side of the committee — stressed that the presence of Ernst and Blackburn was an especially important milestone, given how just 25 years ago, the then all-male panel had handled the sexual harassment allegations Anita Hill brought against now-Supreme Court Justice Clarence Thomas.
“Twenty-five years ago, there were no women on this committee,” Feinstein said.
“I’ll never forget watching the Anita Hill hearing on the television in the London Airport with a lot of people gathered around … and I saw this all-male judiciary committee, and it took all these years but here we are,” Feinstein said. “It’s extraordinarily important that this committee be representative of our society at large, and we are growing that way.”
9:49 a.m.: Graham warns Barr memo will generate questions
Graham warned Barr that he’ll face tough questioning about a memo he sent to senior Justice Department officials that criticized Mueller’s investigation.
“The memo, there will be a lot of talk about it,” Graham said as he opened Barr’s confirmation hearing Tuesday. “As there should be.”
Democrats are expected to frequently highlight the memo, which Barr wrote and sent last year. In a letter to Graham released late Monday, Barr noted the memo’s analysis was “narrow in scope,” stressing that he didn’t think it was impossible to accuse a president of obstructing justice.
In the hearing, Graham also praised Barr’s lengthy resume, which includes a previous stint as attorney general under the George H.W. Bush administration.
“You lived a life that I think has been honorable and noteworthy and accomplished and I want to thank you for willing to take this task on,” Graham said. “We’ve got a lot of problems at the Department of Justice, I think morale is low and I think we need to change that.”
9:43 a.m.: Graham, new Judiciary Committee chairman, opens the hearing with a joke
Graham started out his first appearance as chairman of the Senate Judiciary Committee with a joke — that seemed to fall flat.
Former chairman Sen. Charles E. Grassley (R-Iowa) passed Graham the gavel with congratulations and a comment, “I have every confidence that you’ll steer our 200-year-old committee in the right direction.” Graham responded: “In my view nobody looks over 100 so we’re aging well as a committee.”
Graham, known for his one-liners, peppered his opening warm-up with several of them, as he outlined his priorities for the next two years, which include a focus on trying to “tame the wild West” of social media and ethics revision.
“The immigration Lindsey will show up,” Graham said, referring to his historically conciliatory stance on immigration restructuring.
“But the other guy’s there, too. And I don’t like him any more than you do,” Graham said — in an apparent reference to the fiery persona that came out during the confirmation hearings for Supreme Court Justice Brett M. Kavanaugh.
“I look forward to solving as many problems as we can,” he said.
9:33 a.m.: The hearing is underway
A few minutes after 9:30 a.m., Graham gaveled in the hearing and turned the mic over to Sen. Charles E. Grassley (R-Iowa), his predecessor as chair of the Senate Judiciary Committee.
9:20 a.m.: With whom did Barr discuss his memo, and when?
One of the thorniest topics Barr will have to address Tuesday is a 19-page memo he sent the Justice Department that was highly critical of Mueller pursuing an obstruction case. Of particular interest to Democrats: with whom did Barr discuss that memo, and when?
Barr sought to get ahead of some of those questions late Monday night, writing a letter to Graham that offered much more insight into his thought process in preparing the document, and detailing exactly with whom he discussed it.
Barr noted the memo’s analysis was “narrow in scope,” and he made clear that while he was skeptical about Mueller’s theory of obstruction — at least as it had been described publicly — he did not believe it was impossible to accuse a president of obstructing justice.
“The memorandum did not suggest that a President can never obstruct justice,” Barr wrote. “Quite the contrary, it expressed my belief that a President, just like anyone else, can obstruct justice if he or she engages in wrongful actions that impair the availability of evidence.”
Barr wrote that he prepared the memo because “as a former attorney general, I am naturally interested in significant legal issues of public import, and I frequently offer my views on legal issues of the day — sometimes in discussions directly with public officials; sometimes in published op-eds; sometimes in amicus briefs; and sometimes in congressional testimony.”
He wrote he had seen news coverage about Mueller pursuing an obstruction case and was worried that — if Mueller was doing what was described — “it could, over the longer term, cast a pall over the exercise of discretionary authority, not just by future Presidents, but by all public officials involved in administering the law, especially those in the Department.”
“I started drafting an op-ed,” Barr wrote. “But as I wrote, I quickly realized that the subject matter was too dry and would require too much space. Further, my purpose was not to influence public opinion on the issue, but rather to make sure that all of the lawyers involved carefully considered the potential implications of the theory.”
Barr wrote that he ended up distributing the letter widely with those involved in the case. According to his letter, he shared his views with Deputy Attorney General Rod J. Rosenstein at lunch in early 2018, and later, provided them to Assistant Attorney General Steven A. Engel. After drafting the memo, he gave copies to them, as well as Solicitor General Noel Francisco.
Barr wrote that he also sent a copy of his memo to Emmet Flood, who is working on the White House response to Mueller’s probe; Pat Cipollone, the current White House counsel; and Marty and Jane Raskin and Jay Sekulow, Trump’s lawyers in the case. Barr wrote that he also shared it with Richard Cullen, the vice president’s lawyer, and Abbe Lowell, the lawyer for Jared Kushner, Trump’s son-in-law.
Long before he submitted the memo, Barr had discussions about potentially serving as Trump’s lawyer in the investigation, though he declined. His interactions with the White House have sparked calls from some Democrats that he should recuse himself from Mueller’s probe.
9 a.m.: Barr’s long record at Justice provides fodder for Democrats
In addition to Mueller-related questions, Democratic members of the Judiciary Committee are expected to dive into Barr’s long record at the Justice Department. For example, they have privately told Barr to be prepared for questions about his record on the use of torture, executive power, women’s reproductive rights and about his interest into opening a criminal inquiry in to former secretary of state Hillary Clinton.
In July 2005, a Democratic staff memo says that Barr participated in a panel discussion in which he said: “There is nothing wrong with coercive interrogation, applying pain, discomfort and other things that make people talk, so long as it doesn’t cross the line and involve the gratuitous barbarity involved in torture.” Barr has also said in the past that he supported President George W. Bush’s decision to use military tribunals rather than civilian courts to try al-Qaeda members. Democratic committee staffers said they expect him to be asked about this topic.
One committee member has signaled he plans to ask Barr about his past interactions with politically active conservative organizations that accept anonymous donations.
“I would like you to be prepared to discuss how DOJ recusal and conflict of interest policies can be effective if nominees like you, or appointees like (acting attorney general Matthew) Whitaker fail to disclose anonymous payments,” Sen. Sheldon Whitehouse (D-R.I.) wrote in a letter to Barr last week.
In the four-page letter, Whitehouse told Barr he was interested in the broad issue of dark money funding in American politics. In doing, so, Whitehouse discussed a nonprofit that previously employed Whitaker, the Foundation for Accountability and Civic Trust, a conservative advocacy organization.
Whitehouse wrote Barr that the group received nearly all of its funding from one dark money group and he asked Barr to be prepared to discuss that topic. Senate staff said this area of questioning could lead to a discussion of Barr’s connection to the Federalist Society, a conservative legal group, and its influential executive vice president, Leonard Leo.
In his letter, Whitehouse also asked Barr to be prepared for questioning on a signal moment in the Watergate scandal: when President Richard Nixon, in October 1973, ordered the firing of independent special prosecutor Archibald Cox, who was investigating Nixon’s role in Watergate events.
In the aftermath of that firing, which became known as “the Saturday night massacre,” the acting attorney general at the time, Robert Bork, signed an order that ensured the independence of Cox’s successor, Leon Jaworski.
Whitehouse asked Barr to “to review the Bork order closely” in advance of the hearing “so that we have a discussion about whether you have any objections to adopting” such protection for the current special counsel.
8 a.m.: The ‘obstruction’ memo that Barr might have a hard time explaining
In private practice, Barr was an occasional pundit who commented publicly — and sometimes skeptically — about Justice Department and Mueller-related matters. He said in 2017, for example, that he would have liked to have seen “more balance” on Mueller’s team — which includes many lawyers who have given political contributions to Democrats — and he wrote that Trump’s decision to fire James B. Comey as FBI director was “quite understandable.”
But perhaps the commentary that will draw the most questions Tuesday is a 19-page memo that is highly critical of Mueller pursuing an obstruction case. Among other views, Barr wrote that Mueller’s apparent theory of obstruction was “fatally misconceived” and he “should not be permitted to demand that the President submit to interrogation about alleged obstruction.”
That latter point might be particularly critical. The president has answered some questions in writing from Mueller’s team, but Barr would likely have to approve Mueller’s issuing a subpoena to force him to answer more.
Lawmakers will likely interrogate Barr about the memo and press for specific guarantees that he will leave Mueller’s probe alone and make Mueller’s ultimate findings public. For his part, Barr said in written testimony released in advance of the hearing that on his watch, Mueller would “be allowed to complete his work,” and that it was “very important” Congress and the public be informed of the results.
He said that his memo was “narrow in scope, explaining my thinking on a specific obstruction-of-justice theory under a single statute that I thought, based on media reports, the Special Counsel might be considering.”
“The memo did not address — or in any way question — the Special Counsel’s core investigation into Russian interference in the 2016 election,” Barr said. “Nor did it address other potential obstruction-of-justice theories or argue, as some have erroneously suggested, that a President can never obstruct justice. I wrote it myself, on my own initiative, without assistance, and based solely on public information.”
7:50 a.m.: If Barr is in, Rosenstein is out
If Barr is confirmed as attorney general, Rod J. Rosenstein’s days as the No. 2 Justice Department official are numbered. Rosenstein has told people close to him that he expects to leave if Barr is installed — though there is no precise timetable in place for his departure.
In a vacuum, Rosenstein’s leaving is not necessarily worrisome. It is normal for an attorney general to want his own deputy. Barr has said publicly that the last time he served as attorney general, during the George H.W. Bush administration, he made clear he wanted to pick his own No. 2.
But liberals have come to see Rosenstein as a defender of the special investigation, and his ouster could be viewed as causing a threat to its continuing. Rosenstein, after all, appointed Mueller to lead the probe, and he has supervised it essentially since its inception. He was in charge, rather than Attorney General Jeff Sessions, because Sessions had recused himself from the case.
Even now, though, Acting Attorney General Matthew G. Whitaker is technically in charge of Mueller — having declined to recuse himself, despite past public comments that were critical of the special counsel. While Rosenstein is still handling the routine supervision of Mueller, Whitaker could block steps the special counsel wants to take. And his comments on the special counsel were far more strident than Barr’s. He once suggested, for example, that an acting attorney general could choke off the special counsel’s funding as a way to shut down the investigation.
“The best argument for confirming Barr is Whitaker,” said one Republican involved in the discussions.
7:45 a.m.: In written testimony, Barr vows independence
On Monday, Barr offered a preview of what he plans to tell the Senate Judiciary Committee at his confirmation hearing — releasing four pages of written testimony in which he vowed to let Mueller finish his investigation.
Barr promised the Justice Department would maintain its historic independence from politics, and said, “President Trump has sought no assurances, promises, or commitments from me of any kind, either express or implied, and I have not given him any, other than that I would run the Department with professionalism and integrity.”
He spoke of having worked with Mueller during his past service in the Justice Department and said it was “vitally important that the Special Counsel be allowed to complete his investigation.”
“I have the utmost respect for Bob and his distinguished record of public service,” Barr wrote, adding that he considered Mueller a friend. “When he was named special counsel, I said that his selection was ‘good news’ and that, knowing him, I had confidence he would handle the matter properly. I still have that confidence today.”
Barr said he would like Mueller’s findings to become public, though he stopped short of guaranteeing he would make them so.
“I also believe it is very important that the public and Congress be informed of the results of the Special Counsel’s work,” Barr said. “For that reason, my goal will be to provide as much transparency as I can consistent with the law.”
Barr also outlined what some of his priorities would be as attorney general, including, notably, focusing on political violence and efforts to interfere in U.S. elections.
Barr’s answers are in line with what lawmakers will want to hear, though Democrats will surely press him for more specific commitments. And even if his answers are not satisfactory to them, it might not matter. Republicans control the Senate, so Barr can be confirmed without any Democratic support.