President Donald Trump nominated William Barr to be the next US attorney general on Friday — an event that could have major implications for the Mueller probe.
Barr, a veteran Republican lawyer who served as attorney general under President George H.W. Bush, will be returning to the Justice Department at a strange time, as Trump has spent much of the past year feuding with the agency’s head and former Attorney General Jeff Sessions.
Sessions recused himself in March 2017 from the investigation into Russian interference in the 2016 election and whether the Trump campaign coordinated with Russia. Trump saw Sessions as insufficiently loyal, since he failed to protect him from the Mueller probe.
Barr, if confirmed, will take over for Sessions and (barring another recusal) oversee the Mueller investigation. Barr was Mueller’s boss at the Justice Department, and, as attorney general under Bush, had some experience with special counsel investigations.
The question of Barr’s views on the Mueller probe and how he will withstand pressure from Trump will likely receive a lot of attention in his future confirmation hearing, especially given Barr’s past comments.
Barr’s nomination will also help solve — sooner rather than later — the problem of Matthew Whitaker, Sessions’s former chief of staff whom Trump selected to be acting attorney general. The pick was controversial because of Whitaker’s background, and because Trump bypassed the normal order of succession to put Whitaker, who was close with the White House, in charge.
Whitaker will most likely remain in his post until Barr is confirmed by the Senate. The high-profile nature of the Mueller investigation — and Trump’s constant public relations war against it — means that Barr will likely come under heightened scrutiny during the confirmation process.
William Barr has some baggage, but some say he’s the best option available
William Barr joined the Justice Department’s Office of Legal Counsel in 1989 and rose through the ranks quickly, becoming deputy attorney general in April of that year and then attorney general in 1991, under President George H.W. Bush.
He served until 1993, and had his own dealings with presidential investigations during that time. During Bush’s tenure, independent counsel Lawrence Walsh was investigating the Iran-Contra scandal, which began under Ronald Reagan’s presidency. Some in the Bush administration feared that the investigation was getting too close to Bush.
As the Washington Post’s Aaron Blake reported, after an untimely indictment of Caspar Weinberger, Regan’s defense secretary, days before the 1992 election (which Bush lost), Barr reportedly considered firing Walsh for “misconduct,” though he never did.
Barr was also involved with some controversial pardons of people involved in the Iran-Contra scandal at the tail end of the Bush administration — a particularly concerning sign since Trump could very well try to use his pardon powers to help associates, including Paul Manafort, who’ve been caught up in the Russia probe.
Slate on Friday also noted an interview Barr gave in 2001, where Barr says he “certainly did not oppose” any of the pardons. Bush issued five pardons for those caught up in the Iran-Contra probe, and as the New York Times put it in December 1992, “in a single stroke, Mr. Bush swept away one conviction, three guilty pleas and two pending cases, virtually decapitating what was left of Mr. Walsh’s [the independent counsel] effort, which began in 1986.”
Barr has also raised concerns more recently about the Mueller probe. In a Washington Post piece about how members of Mueller’s team had donated to Democrats, Barr told the Post he thought it was a sign that the prosecutors might have had a strong party affiliation. “I would have liked to see him have more balance on this group,” he said.
Barr was also quoted in a New York Times article last November discussing the president’s call to the Justice Department to investigate Hillary Clinton. When asked what he would do in that situation, Barr indicated that more evidence existed to prompt an investigation into the “Uranium One” deal, a false theory that Clinton sold 20 percent of US uranium to Russia, than evidence supporting potential collusion between Trump’s 2016 presidential campaign and the Russians. “To the extent it is not pursuing these matters, the department is abdicating its responsibility,” Barr said.
Barr also wrote an op-ed in May 2017 defending Trump’s decision to fire FBI Director James Comey. He argued that Comey had erred in his handling of the Clinton investigation during the 2016 election, and he suggested the criticism — that Trump fired Comey to interfere with the Russia investigation — was unfounded.
Barr reasoned that those leading the investigation in the Justice Department, and the career prosecutors and FBI agents on the case, would allow the probe to continue unimpeded. “Comey’s removal simply has no relevance to the integrity of the Russian investigation as it moves ahead,” he wrote.
Barr also has expressed strong views about presidential powers, as the New York Times has pointed out, so it’s perhaps no surprise he doesn’t seem to be a fan of presidential investigations. But to be clear, he hasn’t openly bashed Mueller’s investigation. Most of his comments come in the context of news reports, in answer to specific questions from reporters.
Which might be why some in the Justice Department seem relieved, and seem to think that Barr, with his deep connections to the institution, may be the best available choice. One Justice Department official told CNN on Friday that “compared to other potential picks, this is a great choice.”
Barr has also extolled the rule of law and the value of an independent judiciary, which wouldn’t be noteworthy coming from an attorney general normally but matters given Trump’s attacks on the institution.
“It is often — and rightly — said that we are a nation of law. And, as lawyers, we play an important role in society because it falls upon us to make the system of laws work,” Barr said in a commencement address in May 1992 at the George Washington University Law Center. “In the United States, more than any other country, it is the rule of law that holds our society together.”
Jimmy Gurulé, a law professor at Notre Dame who worked under Barr at the Justice Department, said he’s been critical of Trump but is supportive of this nomination.
“[Barr] is a person that’s fair-minded; he does believe in the rule of law,” Gurulé told me. “[If] he’s presented with compelling facts and evidence from the Mueller investigation regarding criminal liability, regardless of how high it goes, he will be open to taking the appropriate” steps.
So what happens next for Barr?
Matthew Whitaker will remain in charge of the Mueller probe, though there are still questions about how much oversight control he actually has.
Whitaker was serving as Sessions’s chief of staff when Trump handpicked him for the role using a provision of the Federal Vacancies Reform Act of 1998, rather than leaving Rod Rosenstein, the deputy attorney general and No. 2 at the Department of Justice, in charge.
Prior to joining the Trump administration, Whitaker had been a vocal and unabashed critic of Mueller’s investigation. He also has been involved with a scam company, troubling for someone who’s now the chief law enforcement officer in the country.
This led to some calls, mostly from Democrats, that Whitaker recuse himself from the probe. A number of lawsuits have also been filed challenging Whitaker’s legitimacy, many of them arguing that his appointment is unconstitutional because he never received Senate confirmation and other Senate-confirmed officers were available to fill the interim role.
Others have made the argument that the Justice Department’s order of succession should trump the Vacancies Reform Act, meaning Rosenstein should have been tapped to lead until a suitable replacement was nominated and Senate-confirmed.
Barr’s nomination doesn’t have any direct bearing on Whitaker’s status, though Trump announcing the pick without too much delay will likely ease some of the pressure. Still, it could be some time before Barr takes over; Trump’s pick must still go through Senate confirmation, which is likely to be a bruising battle, given the stakes.
So far, Whitaker hasn’t — at least publicly — attempted to interfere in the investigation, and after a period of relative quiet, a series of new developments have revealed that the special counsel is still quietly building a case. (Though to what remains opaque.)
There have been reports that Mueller is wrapping up his investigation soon. On Friday, he is expected to drop court filings about Michael Cohen and Paul Manafort, which could reveal more clues. But there’s always a chance that Mueller finishes, or is mostly done with the major elements of his investigation, by the time Barr is confirmed and takes office.
Even if Mueller does end his investigation soon, the fallout from it won’t end quickly if the results are damaging to the president and those in his administration. Barr, in other words, will be tested no matter what.