After nearly two years of an unprecedented frontal assault by President Trump on his own Justice Department, Senate Democrats have an opportunity this week to pin down attorney general nominee William Barr at his confirmation hearing Tuesday on the commitments he will make to protect the special counsel’s Russia probe and the historic independence of the department.
“You want to hear the nominee say that the president is not above the law, that credible allegations will receive full review,” said Ronald Weich, a former assistant attorney general who’s now dean of the University of Baltimore Law School, “and that the attorney general will adhere to the tradition that the Justice Department is an independent investigative body, and while the president has appointed the attorney general, he doesn’t control the course of investigations.”
Trump picked Barr, a former attorney general under President George H.W Bush, as his permanent replacement for Jeff Sessions, who was ousted after Trump hassled him for months for not intervening in special counsel Robert Mueller’s Russia probe. Barr, if confirmed, will succeed acting attorney general Matt Whitaker, who disregarded the advice of DOJ ethics experts that he recuse himself from oversight of Mueller’s probe after repeatedly bashing it as a pundit.
“This is a real unique opportunity for Congress to dig into questions they’ve had for a long time,” said Barbara McQuade, a former U.S. attorney now at Michigan Law School. Here’s what she and other former DOJ officials think the Senate should ask during Barr’s hearing:
Will Barr Recuse — Or At Least Abide By Ethics Officials’ Advice?
“In a normally functioning Senate, they would demand that he recuse [from Mueller’s probe] as a condition of confirmation,” former Obama DOJ spokesman Matthew Miller told TPM, pointing to a memo Barr wrote to the Justice Department last year and other comments he’s made criticizing elements of Mueller’s investigation. Given that Barr won’t need Democrats’ votes to be confirmed, he is unlikely to grant this concession — especially since Sessions’ own recusal from the Russia probe was a source of Trump’s ire.
Whitaker’s decision not to recuse himself from the probe after career ethics officials advised him to was “extraordinary,” according to David Kris, a former assistant attorney general for the DOJ’s National Security Division, who suggested that senators demand that Barr both consult with the ethics lawyers and abide by their advice.
“The Whitaker letter [announcing his non-recusal] shines a very bright spotlight on the degree to which Barr will or will not follow or take into account the career ethics lawyers,” said Kris, who founded the Culper Partners consulting firm after leaving the Justice Department.
Protecting Mueller’s Probe
Barr should also have to distance himself from ideas floated by Whitaker, before he joined the Justice Department, that Mueller’s probe could be starved to death, former DOJ officials said.
Pointing to comments Barr made privately to Judiciary Chairman Lindsey Graham (R-SC) about his respect for Mueller, Weich said that Barr should have to publicly flesh out his purported promise to Graham that he’d not interfere with the investigation.
“Make sure that he is going to permit Mueller’s work to continue unimpaired, that Mueller will have sufficient resources to continue to have sufficient resources — and resources is not just money, it’s access to personnel to carry out the work — and there’s no artificial deadline,” Weich told TPM.
Kris also raised the Mueller protection bills that have been introduced by lawmakers but have not gotten a vote.
“Can he commit to recommending to the White House that he will support it?” Kris said.
What Will The Congress Know Of Any Trump-Related Crimes?
Barr may be taking the helm of the Justice Department just as Mueller plans to submit to the attorney general a report about his investigation. Democrats could try to get him to commit to releasing the report publicly or at least to Congress.
Trump’s legal team has indicated it’s planning to invoke executive privilege to argue that evidence in Mueller’s expected report related to Trump’s conversations with advisors should remain within the executive branch — and thus not shared with Congress.
Miller said Barr needs to be asked questions about the “disposition of any evidence that the Justice Department finds of the President committing a crime “
He pointed to the oft-cited DOJ memo saying the president cannot be indicted and how underlying the memo’s reasoning is the idea that Congress, via impeachment or otherwise, should be the institution to respond to such allegations.
“That ought to be a bright line standard. If the President can’t be indicted, fine, but that means you need to give us any evidence you have that he committed a crime, you can’t sit on it,” Miller said.
Will Barr Discuss DOJ Probes With Trump?
Trump has sought to discuss with a number of top DOJ officials probes that involve him, from his pressuring then-FBI Director James Comey that he let go the investigation into his former National Security Advisor Michael Flynn to the President’s reported complaining to Whitaker last month about the federal probe into hush money payouts to women claiming to have slept with him.
Barr needs to be asked about what conversations he has had and will have with the president about investigations, particularly those that affect Trump, experts say.
“Is it appropriate to have communications with the president about case matters?” McQuade said.
Before Trump, the notion that the President shouldn’t weigh in on ongoing investigations, particularly those tied to him, was a widely regarded norm that was also outlined in DOJ and White House memoranda.
“One can easily imagine questions that in any other time in recent memory would have been so bizarre and so unfounded as to almost be insulting or at a minimum very strange,” Kris said, of asking Barr about his investigations-related communications with Trump. “Here they are well grounded and with direct recent precedent.”