Barr pledged at his confirmation hearing Tuesday before the Senate Judiciary Committee to keep politics out of Justice Department decisions about criminal investigations. He said he would allow Mueller, whom he called a longtime friend, to finish his work, but Democrats expressed concern that, if confirmed, Barr might not follow the advice of the agency’s ethics officials.
Throughout the nine-hour hearing, Barr lavished praise on Mueller, noting that under the regulations he could fire the special counsel only for good cause, adding: “Frankly, it’s unimaginable to me that Bob would do anything that gave rise to good cause.”
Barr, 68, said he would not “be bullied into doing anything I think is wrong” — by Congress, the media or the president.
Lawmakers repeatedly pressed him about the report Mueller is expected to produce at the end of his investigation. In a sign of potential fights to come, Barr said any report from Mueller would probably be treated like internal Justice Department prosecution memos that are kept secret.
In a chippy back-and-forth with Sen. Mazie Hirono (D-Hawaii), Barr cast doubt on the notion that Mueller’s report might be made public.
“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.
Barr said the attorney general is responsible for notifying Congress and reporting “certain information” once the investigation ends, and he sought to assure lawmakers that he would be as transparent as regulations allow. “It’s really important to let the chips fall where they may and get the information out,” he said.
Earlier in the hearing, Barr criticized former FBI director James B. Comey in a way that suggested Barr, as attorney general, would limit what information is released from the Mueller investigation.
Speaking of Comey’s July 2016 announcement that former secretary of state Hillary Clinton, Trump’s opponent in the presidential election, would not be charged for her use of a private email server to do government business, Barr said: “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 important if Barr were to apply that rationale to the Mueller investigation. By the same logic, Barr might decide 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 lingering questions unanswered.
A poll released last month found that 3 in 4 American adults believed the entire Mueller report should be made public. Two-thirds of Republicans agreed with that statement, while 9 in 10 Democrats agreed, according to the poll from NPR/“PBS NewsHour”/Marist.
Sen. John Neely Kennedy (R-La.) expressed concern that Justice Department regulations might keep important information from the public.
“The American people deserve to know what the Department of Justice has concluded,” Kennedy said. “I would strongly encourage you to put this all to rest. To make a final report public, and let everybody draw their own conclusions so we can move on. If somebody did something wrong, they should be punished. But if they didn’t, let’s stop the innuendo and the rumors and the leaking, and let’s move on.”
The committee’s top Democrat, Sen. Dianne Feinstein (Calif.), told Barr: “We should be able to see the full information that comes out.”
Barr noted he was unaware of what conversations Mueller and Deputy Attorney General Rod J. Rosenstein may have already had on how to make such information public, and that Justice Department leaders might already have a plan in mind.
While it was Barr who faced the questions and the cameras, in some ways the star of Tuesday’s hearing was the person who was not there: Mueller, the focus of so much of the lawmakers’ speculation and concern.
In avuncular fashion, Barr tried to assure lawmakers that his seniority and semiretired status were proof of his ability to protect Mueller and preserve the independence of the Justice Department.
“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.
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.”
Barr was speaking from experience, having led the Justice Department under President George H.W. Bush during the early 1990s.
Barr said he would not halt or hamper Mueller but that he also would not commit to following the recommendation of ethics officials if they saw a reason for him to recuse from overseeing the Russia investigation.
Sen. Kamala D. Harris (D-Calif.) pressed him to explain: “Under what scenario would you imagine that you would not follow the recommendation of the career ethics officials?”
“If I disagreed with them,” he said.
The current acting attorney general, Matthew G. Whitaker, decided to disregard the view of ethics officials who felt he should recuse from overseeing the Russia probe because of his past statements regarding that investigation. Whitaker is scheduled to testify for the first time before Congress on Feb. 8 before the House Judiciary Committee. That hearing is also expected to focus on the Russia investigation.
Barr sparred at times with Democrats on the committee, but for the most part the questioning was calm and measured.
Much of the hearing focused on a memo Barr wrote in June that was highly critical of what he wrote was a “fatally misconceived” legal approach by Mueller toward possible obstruction of justice by the president related to his firing of Comey in May 2017. Separately, Barr also wrote opinion pieces defending the president’s decision and criticizing former deputy attorney general Sally Yates for refusing to defend Trump’s travel-ban executive order.
Barr called “ludicrous” the notion that his public comments critical of the Mueller investigation was some kind of audition for the attorney general job, and Barr promised that no changes would be made to the special counsel’s report.
During the hearing, Barr recounted a conversation he had with Trump in June 2017, in which he was briefly considered as a possible private lawyer for Trump to help deal with Mueller’s investigation.
Barr said he met with the president but made it clear to him he didn’t want the job.
Barr said Trump asked him about Mueller’s integrity.
“I said Bob was a straight shooter and should be dealt with as such.”
As the hearing wore on, Barr fielded more questions about Justice Department policy, rather than the Mueller investigation.
On guns, Barr called the epidemic of mass shootings “the problem of our time” and urged improvements to state laws that would help authorities detect people with mental illnesses and prevent them from possessing firearms.
Barr acknowledged that the current background check system for firearms is “sort of piecemeal” and called for states to pass more 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.
Midway through Tuesday’s hearing, Barr made clear he personally would support marijuana being illegal everywhere. But overall his answers will probably 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,” in which the drug is legal in some states and illegal under federal law. He called on Congress to pass a law that will resolve nationwide how law enforcement should treat marijuana.
The confirmation hearing comes as the entire workforce of the Justice Department that Barr would lead is either working without pay, or furloughed without pay, because of the partial government shutdown that grew out of the president’s demand for $5.7 billion for building more wall along the country’s southern border.
During a break in testimony, Feinstein, the top Democrat on the panel, said the hearing was “going very well” and she expected him to be easily confirmed.