Key exchanges between William Barr and senators on the Judiciary Committee add up to a picture of a potential attorney general who would serve as a typical Republican on policy, but whose answers raised questions about the extent to which he’d consider the political and personal needs of President Donald Trump.
Barr offered standard conservative answers to questions about issues ranging from guns to abortion to immigration.
But when he was asked about matters related to special counsel Robert Mueller’s investigation, he gave some unusual answers. As Vox’s Andrew Prokop detailed, Barr, breaking precedent, would not commit to following the Justice Department’s guidance if ethics officials recommend he recuse himself from overseeing the Mueller investigation. He also hedged about how much (if any) of Mueller’s final report he would make public.
Barr did offer some bits of reassurance for those who want Mueller to have the opportunity to finish his work. He said he wouldn’t fire Mueller unless something “grave” occurred to justify it, and he said he would have serious concerns if the president tried to intervene in an investigation in an effort to protect his family members or himself.
The hearing, which lasted more than nine hours, is best understood through these exchanges.
Amy Klobuchar on the Mueller report
The report Robert Mueller is expected to produce at the end of his investigation is a mystery. We have few details on what form it will take, what it will include, and how he’ll present it to Congress. Democrats want as much of it made public as possible. Some Republicans lean the same way.
Barr offered early words of reassurance.
“I am going to make as much information available as I can consistent with the rules and regulations that are part of the special counsel regulations,” he said.
But later, he indicated that those “regulations” may result in him limiting how much of the results of Mueller’s work the public ends up learning about.
KLOBUCHAR: "Will you commit to make public all of the Mueller report's conclusions, even if some of the evidence supporting the conclusions can't be made public?"— Aaron Rupar (@atrupar) January 15, 2019
BARR: "That's certainly my goal and intent." (That's not a yes!) pic.twitter.com/n2PTQO0z94
Barr also struggled to explain what “facts” would need to prevail for him to disregard guidance from ethics officials advising him to recuse.
“I am not going to surrender the responsibilities I have,” he said. “You would not like it if I made some pledge to the president that I was going to exercise my responsibilities in a particular way, and I’m not going to make a pledge to anyone on this committee.”
Richard Blumenthal on indicting the president
With the endgame of Mueller’s investigation remains a matter of speculation, Sen. Richard Blumenthal (D-CT) asked Barr about circumstances in which he thinks the president could be indicted.
But Barr didn’t specify any. In fact, he said he sees “no reason to change” the longstanding Nixon-era precedent that a sitting president can’t be indicted.
Barr dodges a question from @SenBlumenthal about whether he would ever approve "an indictment of the president."— Aaron Rupar (@atrupar) January 15, 2019
"You know, for 40 years the position of the executive branch has been you can't indict a sitting president," Barr says. "I see no reason to change them." pic.twitter.com/3rNC0ceDNs
“In my opinion, if a president attempts to intervene in a matter he has a stake in to protect himself, that should first be looked at as a breach of his constitutional duties,” Barr said, though he later suggested impeachment, not prosecution, would be the proper remedy.
Barr even signaled that he empathizes with Trump’s steady attacks on Mueller’s investigation, and at one point deflected from a question about news that the FBI opened a counterintelligence investigation into Trump following his firing of FBI Director James Comey by invoking a right-wing conspiracy theory about texts between two then-FBI agents.
“I think it’s understandable that if someone felt they were falsely accused, they would view an investigation as something like a witch hunt,” Barr said.
Dick Durbin and the border wall
Barr was open to the idea that Trump can build his wall even if Congress doesn’t give him money for it. And he agreed with Trump’s points about a border wall and the ongoing government shutdown, including that the wall is needed.
“I would like to see a deal reached whereby Congress recognizes that it’s imperative to have border security, and that part of that border security is barriers,” Barr said, later adding: “I feel it is a critical part of border security that we need to have barriers on the border. We need a barrier system on the border.”
Barr echoed some of Trump’s harsh immigration talking points, expressed strong opposition to “sanctuary cities,” said he supported Trump’s effort to ban people from a number of Muslim-majority countries from entering the US, and pushed back after Sen. Patrick Leahy (D-VT) described the shutdown as “the ‘Trump shutdown.’”
“You called it the ‘Trump shutdown,’ but it takes two to tango,” Barr said.
Barr raised drug trafficking as a key reason the wall is necessary. But the fact is most drugs entering the country go through legal ports of entry, and a wall would do nothing to stop them.
Barr, however, didn’t seem particularly troubled when Sen. Dick Durbin (D-IL) debunked his talking point, saying that drug smuggling through ports of entry is the real issue. Barr responded that the wall is “part of a system that covers all the bases.”
.@SenatorDurbin points out to Barr that his case for Trump's wall is undermined by fact that most narcotics in fact come into the country through ports of entry, & a wall would do nothing to stop that.— Aaron Rupar (@atrupar) January 15, 2019
Barr replies, "I think we need a system that covers all the bases." pic.twitter.com/iCCAztGjHt
Barr was similarly undeterred when Sen. Kamala Harris (D-CA) made the same point to him later.
Barr is a continuation of Sessions on crime
An exchange between Barr and Sen. Cory Booker (D-NJ) illustrated how Barr is poised to continue Jeff Sessions’s “tough on crime” policies.
As Vox’s German Lopez detailed, Barr has historically been supportive of mass incarceration, escalated the war on drugs during his first go-around as AG, and has argued in the past that “there’s no statistical evidence of racism in the criminal justice system.”
Barr defended his record on Tuesday, saying, “I think when you have violent gangs in the city killing people, murder and so forth and so on, sometimes the most readily provable charge is their drug trafficking offenses rather than proving culpability of the whole gang for murder.”
He softened during Booker’s questioning, indicating that his views have evolved somewhat since the early 1990s. He told Booker he believes “there’s no doubt there are places where there’s racism still in the system.” But he justified the tough sentencing policies he pushed for crack cocaine offenses in the early 1990s, saying it was a “different time” because “the crime rate had quintupled over the proceeding 30 years and peaked in 1992.”
But as Booker pointed out to him, Barr’s comment missed the point:
I was a young black guy in 1990s. I was a 20-something-year-old and experienced a dramatically different justice system in the treatment I received.
The data of racial disparities and what it’s done — because you literally said this about black communities. I know your heart was in the right place. You said, hey, I want to help black communities. The benefits of incarceration would be enjoyed disproportionately by black Americans living in inner cities. You also said a failure to incarcerate hurts black Americans most.
BARR: Senator, 1992 was a different time. The crime rate had quintupled and it peaked in 1992.— Aaron Rupar (@atrupar) January 15, 2019
BOOKER: "And, sir, I was a young black guy in 1990s. I was a 20-something-year-old. And I experienced a dramatically different justice system." pic.twitter.com/i3l6q69pBN
As my colleague Li Zhou noted, “At the end of their back-and-forth, Barr maintained that higher incarceration rates led to a reduction in crime that’s benefited black Americans, but said that heavy drug penalties have ‘harmed the black community.’”
At another point, Barr indicated that he supports the Trump administration’s move to make it harder for the federal government to address cases of police misconduct. Echoing Sessions, he promised to be hard on leakers.
Klobuchar: will you jail reporters?
In one of the more stunning moments of the hearing, Barr staked out an extreme position on leaks, reporters, and the First Amendment by refusing to rule out imprisoning reporters for “contempt.”
KLOBUCHAR: If you are confirmed, will DOJ jail reporters for doing their jobs?— Aaron Rupar (@atrupar) January 15, 2019
BARR: "Um.... I think that -- I know there are guidelines in place, and I can conceive of situations where as a last resort... there could be a situation where someone could be held in contempt." pic.twitter.com/EJxF4xFAVJ
On marijuana policy, Barr said he supports federal criminalization but would be reluctant to intervene in states that have legalized it.
“I think it’s incumbent on the Congress to make a decision as to whether we are going to have a federal system,” he said.
Dianne Feinstein: what about guns?
Barr offered standard Republican views on issues including abortions, guns, and voting rights.
On abortion, he said that as “an original matter,” he thought Roe v. Wade was “wrongly decided,” but he suggested 46 years of precedent means it likely won’t be overturned.
He downplayed the impact of voter suppression and argued that low turnout “is ultimately attributable” to people not “being that engaged in the public affairs of the country,” not laws that make it harder for certain populations to vote.
During an exchange with Sen. Dianne Feinstein (D-CA), Barr downplayed the efficacy of gun control laws. After Feinstein pointed out to him that an assault weapons ban she championed in 1994 resulted in a decline in gun violence, Barr quickly pivoted by recasting gun violence as a mental health issue.
“I think the problem of our time is to get an effective system in place to keep dangerous firearms out of the hands of mentally ill people,” he said, echoing Trump.
FEINSTEIN: In 94 you said 'gun control is a dead end.' But assault weapons ban I introduced that year reduced gun violence. Thoughts?— Aaron Rupar (@atrupar) January 15, 2019
BARR: "I think the problem of our time is to get an effective system in place to keep dangerous firearms out of the hands of mentally ill people" pic.twitter.com/yGwtOFPMMH
At another point, he explained that he opposed the assault weapons ban because he “felt that it was really sort of [about] the aesthetics of the gun.”
Barr also said he “would like to review” DOJ’s position on the Affordable Care Act. He expressed personal opposition to same-sex marriage but said his views have evolved since the Supreme Court legalized it in 2015 — although he added, “I want accommodation to religion.”
Barr is likely to be confirmed
Republicans expressed very few concerns about Barr’s nomination during the hearing, which means it’s likely to advance from the Judiciary Committee to the full Senate floor. Once it gets there, four Republican senators would have to vote against Barr to kill his nomination, and that’s extremely unlikely to happen.
In short, it’s likely that Barr ends up serving as Trump’s third attorney general. What that means for the Russia investigation remains up for debate.