AG NOMINEE, IN ADVANCE OF HEARING, VOWS HE’LL LET MUELLER FINISH JOB
Donald Trump has nominated Barr to return as attorney general. But unlike the self-restrained Bush, Trump revels in pushing limits — a temperament that, when combined with Barr’s unusually permissive understanding of presidential power, could play out very differently for the rule of law than it did last time.
“There are concerns about his independence, given his long-standing and expansive views of executive power,” said Sen. Dianne Feinstein of California, the ranking Democrat on the Judiciary Committee, which will hold Barr’s confirmation hearing starting today. “So the question is: Is he right for this time, and can he really be independent of this president and the White House?”
Trump ousted his administration’s first attorney general, Jeff Sessions, in November, after long excoriating him for having followed ethics officials’ advice that he recuse himself from overseeing what became the investigation led by special counsel Robert Mueller. Trump said that he needed an attorney general who would protect him and that he would not have appointed Sessions if he had known he would recuse himself.
The two-day hearing for Barr, 68, will play out against the backdrop of swelling rule-of-law turmoil, from Trump’s pressuring the Justice Department to curtail investigations into his associates and to open them into his opponents to his threat to invoke emergency powers to circumvent Congress on border-wall funds, to coming oversight fights with House Democrats.
Democrats have demanded that Barr protect Mueller as he completes the investigation into Russia’s interference in the 2016 election, including whether Trump sought to obstruct the inquiry on behalf of Moscow. Democrats have also focused on whether Barr would turn over to Congress any report Mueller compiles.
“It is in the best interest of everyone — the president, Congress, and, most importantly, the American people — that this matter be resolved by allowing the special counsel to complete his work,” Barr said in written testimony released Monday and that he plans to deliver at the start of his two-day confirmation hearing before the Senate Judiciary Committee.
“The country needs a credible resolution of these issues,” he added. “If confirmed, I will not permit partisan politics, personal interests, or any other improper consideration to interfere with this or any other investigation.”
But Barr also included a subtle caveat, limiting his assurances about Mueller’s investigation to the issues under his control: “I can assure you that, where judgments are to be made by me, I will make those judgments based solely on the law and will let no personal, political, or other improper interests influence my decision,” he wrote.
That qualification could be important because Barr has long advanced a philosophy of strong executive powers under which any administration decision is ultimately the president’s to make. His views also include the notion that the president is the nation’s top law-enforcement official, not the attorney general.
After Barr was nominated last month, the emergence of an unsolicited memo he sent to the president’s lawyers last year criticizing a focus of the inquiry — possible presidential obstruction of justice — prompted concerns among congressional Democrats that Barr might stop the special counsel inquiry if Trump ordered him to do so.
Barr said he would follow the rules governing Mueller’s appointment and work to allow him to finish the investigation into Russia’s 2016 election interference and whether any Trump associates conspired with it.
“I will follow the special counsel regulations scrupulously and in good faith, and on my watch, Bob will be allowed to complete his work,” Barr planned to say, according to the prepared remarks.
Barr also said that he would provide as much information to the public as the law allowed about the results of the inquiry.
Sen. Lindsey Graham, R-S.C., the new Judiciary Committee chairman, told reporters after meeting with Barr last week that the nominee had said he saw no reason to fire Mueller and had pledged to “err on the side of transparency” about any report. But neither statement addressed what he would do if Trump ordered him to act otherwise.
Barr is likely to be confirmed because Republicans control the Senate and because defeating him would leave in place the acting attorney general, Matthew Whitaker, a Trump loyalist whose installation in that role Democrats see as illegitimate and a threat to Mueller. Ethics officials advised Whitaker to recuse himself from the Russia case, but he refused.
But Barr has already drawn scrutiny over the report last month that he sent an apparently unsolicited 19-page memo to the Trump legal team in June arguing that Mueller should not be permitted to investigate Trump for criminal obstruction of justice.
Barr’s argument derived from his broad view of executive power: The Constitution, he claimed, does not permit Congress to make it a crime for the president to exercise his executive powers corruptly — even if he were to fire a subordinate, pardon someone or use what Barr termed his “complete authority to start or stop a law enforcement proceeding” to cover up crimes by himself or his associates.
The claim that the framers of the Constitution empowered presidents to impede investigations for corrupt ends goes too far, many legal scholars say. But Supreme Court precedents offer few definitive guideposts, giving the attorney general broad latitude.
“The interpretive approach of Justice Department lawyers to the Constitution is very important because many separation-of-powers issues never wind up in court,” said Peter Shane, a law professor at Ohio State University. “Barr’s method is not uniquely his, but it does represent a particularly aggressive school of executive power thought.”
Barr started his career as a CIA analyst before becoming an agency legislative affairs official in the mid-1970s, during the post-watergate and post-vietnam War era when a congressional investigation dragged decades of intelligence abuses into the light over the executive branch’s objections.
After going to law school, he joined the Reagan White House and worked on domestic policy with C. Boyden Gray, counsel to then-vice President George Bush. At the time, the administration was battling Democrats in Congress over its push for deregulation. The conflicts helped spur the Reagan legal team to develop new executive power theories that would diminish the influence of Congress.
Their legal policy innovations intensified in Reagan’s second term, after Barr had returned to private practice and senior administration officials were caught steering aid to anti-marxist militants in Nicaragua despite a law forbidding such assistance. The scandal, known as Iran-contra, set off investigations by Congress and an independent counsel.
Amid the fallout, the Reagan legal team called into question the legitimacy of both the law barring aid and one allowing for prosecutors the president could not fire. The president’s lawyers saw them as congressional encroachments on the president’s powers, though the Supreme Court upheld the independent counsel law in 1988.
The next year, when Barr returned to public service in the new Bush administration, he took up the executive power mission as the head of the Office of Legal Counsel, the powerful agency within the Justice Department that evaluates the legality of proposed executive branch actions. Gray, who had become White House counsel under Bush, “was intent on getting someone in that position who believed in executive authority,” Barr later recalled.
Normally, the Office of Legal Counsel waits to be asked a specific legal question about a particular dispute before weighing in. But among his first major acts was to write an apparently unsolicited 10-page memo to top lawyers across the executive branch, urging vigilance against any attempts by Congress to limit presidential power.
“Only by consistently and forcefully resisting such congressional incursions can executive branch prerogatives be preserved,” he wrote.
Barr denounced lawmakers’ pursuit of sensitive administration information for oversight investigations and the creation of legal limits on the president’s power to fire certain officials in order to give them a degree of independence. “The power to remove is the power to control,” he wrote.
As Bush’s term progressed, Barr not only argued that the president could unilaterally launch the Gulf War without Congress — echoing a move by President Harry Truman, to enduring legal controversy, in the Korean War four decades earlier — but also sought to push the boundaries of presidential flexibility in many other ways, large and small.
In 1990, for example, Barr asserted that the Bush administration could lawfully choose to disregard a law in which Congress, as a condition of funding a diplomatic delegation, required that a representative from a congressional panel be included. Arguing that Congress had no authority in the area of foreign affairs, he asserted that it was therefore “self-evidently” true that lawmakers could not enact a law influencing the president’s choices of diplomatic agents.
That same year, he argued more broadly in a panel discussion that even with the power of the purse, lawmakers lack the authority to influence policy by placing conditions on appropriations for government activities that fall under the president’s executive powers. Congress only has the power to provide a “lump sum” to the president in those cases, he said.
After Bush lost the 1992 election and before he left office, he pardoned half a dozen officials in the Iran-contra affair just before one, Caspar Weinberger, was about to go to trial. Foreshadowing the controversy over Trump’s dangling of potential pardons in the Russia investigation, the prosecutor accused Bush of a cover-up that could have implicated his own conduct. Barr later said that he had personally urged Bush to pardon the officials because he thought they had been “unjustly treated.”
In the years after the Bush administration ended, Barr became a top lawyer for the telecommunications company that evolved into Verizon, working mainly on business and regulatory issues. But he also continued to play a role in legal policy debates over executive power and national security, especially after the Sept. 11 attacks.
After Congress enacted the USA Patriot Act to loosen restrictions on government surveillance that grew out of the 1970s oversight investigations, he testified that the new statute had been a good first step but did not go far enough.
In 2005, after the George W. Bush administration’s detainee abuses started coming to light, he defended Bush’s power to declare that prisoners in the war on terror were not protected by the Geneva Conventions and so could be lawfully subjected to coercive questioning.
“Generally, under the laws of war, absent treaty, there is nothing wrong with coercive interrogation, applying pain, discomfort and other things to make people talk,” he said, pausing, then adding, “as long as it doesn’t cross the line and involve the gratuitous barbarity that’s involved in torture.”
Later that year, Congress tightened laws against treating detainees in cruel or degrading ways, but Bush claimed he had constitutional power to do so anyway. In 2006, the Supreme Court ruled that the Geneva Conventions did require humane treatment of terrorism detainees, contrary to the Bush legal team theories that Barr had echoed.
Barr also repeatedly defended Bush’s decision to create the ill-fated system of military commissions instead of civilian courts to prosecute terrorism suspects. In fact, it was Barr who privately suggested to the Bush White House that it create a tribunals system, an idea he had considered as attorney general during the investigation of the 1988 bombing of Pan Am Flight 103. Two Libyan suspects were indicted in civilian court in 1991.
Barr has recounted a story about that case that may resonate with Democrats’ expressed concerns about whether he will maintain Justice Department independence against political interference by Trump. When prosecutors were preparing to indict the Pan Am 103 suspects, Bush cautiously asked his attorney general “would it be OK” to brief the National Security Council on the situation.
Taken aback at Bush’s handsoff attitude, Barr made clear that he saw the president as excessively deferential — and invoked the notion, popular among executive power maximalists, that the president, not the attorney general, is the prosecutor in chief.
“Would it be OK? Well, I work for you; you’re the top law enforcement officer. Of course it’s OK,” Barr recalled marveling. “The attitude was, You have to be very careful with pending matters of justice.”