As the Senate begins confirmation hearings this week for William Barr, President Donald Trump’s nominee for attorney general, there is concern that Barr's expansive view of executive power could threaten special counsel Robert Mueller’s ongoing investigation into Russian meddling in the 2016 election.
Those views were reinforced in June 2018, when Barr sent an unsolicited memo to the Justice Department, asserting that Mueller’s investigation of Trump for alleged obstruction of justice was “fatally misconceived.” In the memo, Barr made an argument similar to Trump’s lawyers — that presidents cannot be investigated for actions they are permitted to take, such as firing officials who work for them, based on their subjective state of mind.
Barr previously served as attorney general from 1991 to 1993 under President George H.W. Bush. If confirmed by the Senate, Barr would replace Matthew Whitaker, who was appointed by Trump as acting attorney general after Jeff Sessions resigned in November under pressure from the White House.
In written testimony released on Monday ahead of his hearing, Barr signaled his belief that the special counsel should be allowed to complete his Russia investigation, and that both Congress and the public should learn the results. But there are lingering concerns about Barr’s potential role in overseeing the investigation. As the hearings approach, here are some things that Senate Judiciary Committee members should consider.
Can Barr remain impartial in overseeing the Russia investigation?
Barr’s memo to the Justice Department raises the concern of whether he can provide unbiased supervision of the Mueller investigation. “Given Barr is already on the record taking a position on the special counsel, can he truly provide impartial supervision of the investigation, or will he bring prejudicial opinions to work?” asked Rudy Mehrbani, senior counsel at the Brennan Center. “We need a commitment from Barr that he will follow the advice of career ethics officials, and to know whether he will recuse himself from the investigation given the appearance issues raised by his previous statements.”
The Senate committee should also seek clarification from Barr on how he will engage with Justice Department ethics officials. In Barr’s response to a questionnaire from the Senate Judiciary Committee, he failed to say that he would follow the guidance of ethics officials.
Would Barr stop Trump from interfering with the Russia investigation?
Not only should the Senate committee clarify Barr’s own ability to oversee the Russia investigation — they should also clarify whether Barr will protect the special counsel’s work and ensure that Trump is not permitted to improperly interfere with or obstruct the investigation.
Trump has a long record of attacking the Russia investigation. He has repeatedly labeled the investigation as a “witch hunt” and has alleged without evidence that the Mueller team has conflicts of interest. And he has reportedly attempted to fire Mueller himself, only backing off when White House counsel Donald McGahn threatened to quit.
The Senate committee should question Barr on how he plans to protect the independence of the Justice Department. This includes insulating the agency from Trump’s attempts to investigate his political adversaries, including Hillary Clinton and former F.B.I. director James Comey.
The senators should also ask Barr whether the president has the right to pardon himself. “Barr has a history of involvement with controversial pardons,” said Martha Kinsella, counsel in the Democracy Program at the Brennan Center. “For example, Barr advised President George H.W. Bush to pardon six Reagan officials who were involved in the Iran-Contra affair, without consulting the pardon attorney. The pardons impacted Independent Counsel Lawrence Walsh's investigation of the Iran-Contra affair.”
If Barr is confirmed, here’s what Congress can do to keep Trump in check
Congress still has options for keeping Trump in check even if Barr is confirmed as attorney general. In a recent report, the Brennan Center's National Task Force on Rule of Law and Democracy outlined a series of proposals for upholding the rule of law and ensuring ethical conduct in government.
First, Congress should pass legislation that protects the special counsel from being removed improperly. One agreeable current option for Congress is to pass the bipartisan Special Counsel Independence and Integrity Act, which would only allow the special counsel to be removed for cause, and also allows the special counsel to challenge his or her removal in court.
Second, Congress can take steps to protect the Justice Department from political interference, including by the White House. This involves requiring both the White House and law enforcement agencies such as the Justice Department to publish a White House contacts policy.
Additionally, Congress should make clear that inspectors general – the independent watchdogs in executive branch agencies – have authority to investigate allegations of political interference when they do arise, including allegations stemming from a White House's improper meddling in law enforcement matters.
Finally, Congress should protect the pardon process by passing a resolution that makes it clear that the president does not have the right to self-pardon. In addition, to increase transparency for the pardon process, Congress should require written justification from the president for pardons that involve close associates.
No one is above the law — not even the president. In this week’s confirmation hearings, the Senate committee should make sure that William Barr believes the same. And even if Barr is confirmed, Congress should take the steps that will prevent political interference and abuses of power.
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