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Mueller’s investigation will dominate Bill Barr’s confirmation hearing

Trump’s nominee for attorney general will face questions about his past comments and that memo.

President Trump’s Attorney General Nominee William Barr Meets With Lawmakers On Capitol Hill
Attorney General nominee Bill Barr on Capitol Hill ahead of confirmation hearings in January 2019.
Photo by Chip Somodevilla/Getty Images

William Barr, President Donald Trump’s nominee for attorney general, goes before the Senate Tuesday for his confirmation hearing.

He’s been here before.

In November 1991, the Democrat-controlled Senate unanimously confirmed Barr to become attorney general under the George H.W. Bush administration. Barr, who had been serving as acting attorney general, won bipartisan support from lawmakers. Then-Rep. Chuck Schumer (D-NY) called Barr “a capable Attorney General.”

Compare that to 2019: Schumer, now Senate minority leader, is calling on Trump to rescind Barr’s nomination altogether. Nearly 30 years later, Barr’s confirmation hearings — scheduled for Tuesday and Wednesday — are shaping up to be contentious affairs as Barr attempts to reprise his role as attorney general, which includes overseeing special counsel Robert Mueller’s Russia investigation.

Democrats are sure to focus on Barr’s opinions about the Mueller investigation — specifically, an unsolicited memo Barr wrote to the Justice Department in June that blasted the special counsel’s obstruction of justice inquiry into Trump. The memo was made public last month, and immediately led some to question whether his skepticism of the probe had endeared him to the president. Barr had also defended Trump’s firing of FBI Director James Comey in an op-ed, and was quoted in media reports in 2017 saying Hillary Clinton should be investigated.

Barr has an extremely expansive view of executive power, and if confirmed, could be in charge of the Justice Department when Mueller wraps up his investigation and likely compiles a final report.

Lawmakers will pressure Barr to guarantee he won’t try to intercede or try to squash any of Mueller’s conclusions. Trump repeatedly griped at former Attorney General Jeff Sessions for being insufficiently loyal and recusing himself from the investigation into Russian collusion, so Democrats will no doubt be questioning Barr on whether he will be sufficiently independent of the president if confirmed to the post.

Barr seemed ready to appease lawmakers’ fears in his prepared remarks for the Judiciary Committee. “I believe it is in the best interest of everyone — the President, Congress, and most important, the American people — that this matter be resolved by allowing the Special Counsel to complete his work,” Barr was expected to say Tuesday. “The country needs a credible resolution of these issues. If confirmed, I will not permit partisan politics, personal interests, or other improper consideration to interfere with this or any other investigation.”

Barr added that he believed “it is very important that the public and Congress be informed of the results of the Special Counsel’s work” and that he would “provide as much transparency as I can consistent with the law.”

But while the Mueller investigation will loom over a lot of the hearing, Barr’s record and stances on immigration and criminal justice will also face scrutiny. Barr was an architect of federal tough-on-crime-policies and hawkish immigration policies during his previous tenure as attorney general. Barr will be overseeing both once again if confirmed, and is a natural successor to Sessions’s hardline, and often controversial, policies.

Barr will likely be confirmed by the Republican-majority Senate — but his pathway to attorney general is bound to be a lot testier, and more dramatic, the second time around. Here’s what to expect from Barr’s Senate confirmation hearings.

Who is William Barr — and what’s going to come up at this hearing?

In December, Trump nominated William Barr, a conservative lawyer and attorney general under President George H.W. Bush, to be the next attorney general.

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. Barr served as attorney general from 1991 to 1993, and was one of the youngest people to ever hold the position at the time.

After his tenure, Barr moved into the private sector; he worked as general counsel for Verizon and later joined the firm Kirkland & Ellis. He told associates, according to CNN, that he was willing to come back to the Justice Department out of “a sense of patriotism.”

Barr’s nomination came a month after former Attorney General Jeff Sessions resigned at Trump’s request. Trump initially tapped Sessions’s chief of staff, Matthew Whitaker, to serve as acting attorney general, a questionable appointment that led to multiple legal challenges.

Given this, Barr’s nomination was met with some relief: he might be the best-case scenario for a Trump Justice Department appointee. Barr is undoubtedly qualified — he’s a former attorney general, after all — and his past experience meant he likely had both knowledge and respect for the norms and institutions of the DOJ.

Rod Rosenstein, the deputy attorney general who has overseen the Mueller investigation since Sessions recused himself, reportedly greeted the news enthusiastically, as did other DOJ employees. (Rosenstein is reportedly planning to leave the DOJ soon after Barr is confirmed.)

Barr’s honeymoon phase was somewhat short-lived as his record underwent closer scrutiny. Advocates for immigrants and for criminal justice reform raised red flags about his tenure as attorney general in the 1990s. According to a 1992 Los Angeles Times article, he sought to turn the Justice Department “from a reactive institution” into an “agenda-setting agency,” tackling violent crime, gangs, and tighter immigration controls, among other issues.

Then there’s Barr aggressive and expansive view of executive power. Barr, in his past writings, including a July 1989 memo, embraced a strong “unitary executive” view. The doctrine posits that the powers of the executive branch are vested in the president, which means he has full control over executive agencies, and it questions how much Congress can limit or control the president’s executive powers.

There are also questions about how Barr handled presidential investigations in the past. Barr was involved with some controversial pardons of people involved in the Iran-Contra scandal at the tail end of the Bush administration. Bush, ahead of the 1992 election, wiped away the convictions of six people, including former Reagan Defense Secretary Caspar Weinberger, who had been set to go to trial for lying to Congress. The pardons effectively ended the investigation. Barr, in a 2001 interview, defended those pardons.

Barr’s comments and statements during the Trump era also have some worried about what his appointment might mean for the Mueller investigation. In a 2017 Washington Post article about members of Mueller’s team having 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 wasn’t alone in criticizing the optics of the donations, but others thought it merely played into Trump’s tactics to discredit the probe.

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 stock 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.

These comments troubled lawmakers and others concerned about the integrity of the Mueller probe, and of the Justice Department writ large.

Then came the memo.

What is this memo, and why will everyone be talking about it?

In December, the Wall Street Journal reported that Barr had written an unsolicited 19-page memo in June 2018 to Deputy Attorney General Rosenstein and Assistant Attorney General Steve Engel arguing that Mueller’s inquiry into obstruction of justice was “fatally misconstrued” and “premised on a novel and legally insupportable reading of the law.” The New York Times later printed the full memo with Barr’s full argument, which you can read here.

So the man who will inherit the Mueller investigation, if confirmed, has deep suspicions that elements of the probe are a sham. Barr did admit in the memo that he was “in the dark” about all the information in the case. But he argued that the actions Mueller was investigating Trump for — specifically Trump’s comments urging Comey to drop the investigation into former National Security Advisor Michael Flynn and Trump’s firing of Comey — were lawful exercises of the president’s executive power.

Barr also claimed that since no underlying crime of “collusion” exists, Trump’s actions couldn’t be conceived as obstructing justice. “Until Mueller can show that there was unlawful collusion,” Barr wrote. “He cannot show that the President had an improper ‘cover up’ motive.”

Barr, it’s worth noting, didn’t say that Trump (or any president) couldn’t commit obstruction of justice — just that, based on what’s publicly known about the Mueller investigation, Trump’s actions were within his constitutional rights as president.

Of course, as Barr noted, he isn’t privy to all the facts of the case, and Rosenstein later said in a statement about the memo that “our decisions are informed by our knowledge of the actual facts of the case, which Mr. Barr didn’t have.”

But the fact that Barr went out of his way to deliver advice to the Justice Department, and later found himself as the nominee for attorney general, definitely seems a little weird. Trump has been explicit that he believes his attorney general should be loyal to him, and he regularly lambasted Sessions for recusing himself from the Russia investigation and failing to protect him.

Barr’s skepticism of the Mueller investigation — and Trump’s antipathy toward it — hint at the possibility that Trump is trying to find someone who’ll rein in the investigation.

Barr will get the opportunity this week to answer that question in his own words. In remarks released ahead of the hearing, Barr is expected to defend his memo, saying that he did on his own initiative and based solely on media reports. He said his argument is “narrow in scope” and explained his “thinking on specific obstruction-of-justice theory under a single statue that I thought, based on media reports, the Special Counsel might be considering.”

Barr adds that the memo didn’t question the special counsel’s core investigation into Russian interference in the 2016 election.

But the memo undoubtedly complicates what would already be an intense confirmation hearing. Democrats in particular are going to try to find out what Barr and Trump discussed as he was interviewing for the post, and whether there was any understanding between them about the status of Mueller’s investigation. Senate Democrats may also try to push for Barr’s recusal in the Russia investigation, saying he can’t be impartial since he has prejudged the investigation.

Republican Senator Lindsey Graham, the new chair of the Senate Judiciary Committee, said Wednesday that he’d received guarantees from Barr that he won’t fire Mueller and is committed to letting the special counsel finish up his work unimpeded.

Barr will have the opportunity to tell a Senate panel that in person this week. He is expected to testify to lawmakers that he believes the special counsel’s ability to finish up the investigation is “vitally important” and that he has confidence in Mueller. — because the question will most definitely come up. “The country needs a credible resolution of these issues,” Barr is expected to say, along with a guarantee that “Bob will be allowed to complete his work.”

But lawmakers probably won’t stop there — and they’re sure to press Barr on these issues.

A minor controversy ahead of the hearings, and what else to watch for this week

A small controversy ahead of the hearings might be an omen for the tough confirmation battle to come. Last week, some Democratic senators on the Judiciary Committee complained that Barr had refused to meet with them, and that the Justice Department was using the partial government shutdown as an excuse to keep Barr from these meetings.

This made little sense, as Barr currently isn’t a federal employee — he’s just a private citizen right now and meeting with both Republican and Democratic committee members is standard ahead of any major hearing. Democratic Sens. Amy Klobucher (MN) and Richard Blumenthal (CT) both publicly called out the DOJ and Barr, and eventually the Justice Department reversed course, and meetings with Democrats were back on.

As Vox’s Emily Stewart has written, observers were also concerned about Barr’s financial and ethics disclosures. This information is of particular concern for Barr, who spent the greater part of the last two decades working in the private sector.

According to his financial disclosures, Barr has accumulated more than $37 million in assets during his time working in the private sector, and he’s already said he will recuse himself from any cases involving the AT&T and Time Warner merger, as he holds $1.2 million in AT&T shares and previously served on Time Warner’s board.

Barr may be required to divest some of his assets, though Justice Department ethics officials haven’t given many details. There may be some other conflicts of interest, including the fact that his daughter and two sons-in-law are currently DOJ employees.

Barr’s potential conflicts will certainly come into play, but still none more so than his Mueller memo. How Democrats — and Republicans — handle this will also give the public its first real preview of what to expect from the Senate in 2019, especially when it comes to the Mueller investigation and the president.

It’s worth keeping in mind that the Senate Judiciary Committee is going to look a bit different this time around. Sen. Lindsey Graham (R-SC) will now be the chair. The Republican senator has waffled on the issue of protecting Mueller, and of late he’s been a loyal attack dog for the president. And in the past, he hasn’t hesitated to use his platform to go to after his Democratic colleagues, as he did during the Judge Brett Kavanaugh Supreme Court confirmation hearings.

A November 1991 New York Times story about Barr’s first confirmation to be attorney general suggested that the Senate Judiciary Committee had quickly approved his nomination, and “showed little interest in another bruising fight.”

That other bruising fight was the confirmation hearings of Supreme Court Justice Clarence Thomas. Barr’s nomination is the most high-profile Senate Judiciary confirmation hearing since Kavanaugh’s own divisive one in September, which had its own echoes of Thomas’s battle.

This time around for Barr, the Senate is indeed gearing up for a bruising battle.