The Judiciary Committee Whiffs

William Barr’s testimony did not surprise. He is experienced, smart, and a committed proponent of virtually unlimited presidential power. While he sought to reassure critics by professing the importance of allowing Special Counsel Robert Mueller to complete his investigation and promising to be as transparent as the law allows when Mueller is done, he failed to commit on two of the largest issues facing his nomination: recusal from the Mueller probe and public release of Mueller’s findings.

Regarding recusal, he agreed to consult career ethics officials in the Justice Department (DOJ), but he refused to commit to abide by their determination. For those of us who care deeply about the integrity of the Mueller probe and the process for policing ethics at DOJ, Barr’s position was disappointing, but predictable. Trump has made clear that he will not tolerate an attorney general who will step aside from supervision of Mueller. Jeff Sessions was hounded from office because of his recusal decision. Matthew Whitaker was selected because of his hostility to Mueller’s investigation and refused to recuse himself despite the proper determination of career officials that he should. Barr understood that he could not accept the attorney general nomination and recuse himself.

Pursuant to 5 C.F.R. 2635.502(c), employees are required to follow ethics officials’ recusal determinations, but Whitaker and Barr apparently do not consider themselves bound like other employees. There is no doubt that Barr will decline to recuse himself.

The case for Barr’s recusal rests largely on his op-ed in support of the firing of James Comey and his curious 19-page memo criticizing Mueller’s investigation of Trump’s obstruction of justice. While Barr argued that the memo offered a narrow interpretation of one statutorily based theory of obstruction, the language of the memo lays out a dangerously expansive view of presidential power that would seem to empower the president to interfere fatally in Mueller’s investigation. This theory of the unitary executive places all executive power within the person of the president and prevents Congress from limiting the president’s exercise of his constitutional powers. As a witness, Professor Neil Kinkopf did a masterful job of laying out the consequences for the Mueller investigation, noting that Barr’s long-held view would create an imperial presidency.

In view of the appearance of prejudgment created by Barr’s memo and other comments on the Mueller investigation, senators needed a commitment from Barr that he would honor the determination of neutral, career ethics officials. He could not give it.

Regarding release of Mueller’s findings, Barr sought and found refuge in DOJ’s special counsel regulations. While committing to transparency, he refused to go beyond the bare requirements of the regulations.

Senators seemed ill-informed about the limited reporting measures in the regulations. The regulations require that Mueller submit to the attorney general “a confidential report explaining the prosecution or declination decisions reached by the Special Counsel.” The attorney general is obligated to report to Congress at the close of the investigation regarding any proposed actions of the special counsel that he blocked. Beyond that, there is no reporting obligation.

The regulations leave to the attorney general whether to send any other reports to Congress and they recognize that the law may limit the information that can be made public. Notably, Mueller’s report is likely to contain classified information and grand jury testimony, which is secret. Barr seemed to represent only that he would send his own report to Congress and did not discuss how thorough that would be or how he would deal with restricted information. In addition, Trump’s lawyers have vowed to challenge parts of the report by asserting executive privilege regarding communications between Trump and his advisors. Unfortunately, senators failed to explore and Barr did not volunteer his views on executive privilege and whether he thought Congress could overcome the privilege. His view of the presidency endorses robust executive privilege.

The regulations rest on traditional DOJ practice that discourages public comment on prosecution decisions. Barr emphasized this practice in his appropriate criticism of James Comey for commenting on Hillary Clinton’s conduct while announcing his decision against prosecution. This traditional practice is reflected in the minimal reporting obligations of the regulations. Together, tradition and the regulations empower Barr to bury Mueller’s findings.

For that reason, senators needed a commitment from Barr to exceed the minimal reporting required by the regulations. They should insist on a promise to forward as much of Mueller’s confidential report to Congress as the law permits. He also should have been pressed to agree to forward as much of Mueller’s raw evidence as possible for oversight and possible impeachment purposes. If the House undertakes impeachment, it will need Mueller’s material to show the way. Finally, senators should press for revision of the DOJ regulations to require greater transparency and pursue a legislative solution if DOJ resists.

Given the circumstances in which this nomination occurs, senators seemed far too accepting. Democrats seemed resigned to Republican unity and their own minority status. They should have done more to demonstrate their awareness of the magnitude of the threat emanating from the White House and the need to take extraordinary measures to reassure the public and buttress the rule of law. Barr is a dramatic improvement over Matthew Whitaker and he brings measures of intelligence, legal sophistication, and institutional knowledge rarely seen in Trump cabinet picks. But the times demand more, and senators on the committee could have pressed for it.

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Bill Yeomans is the Senior Justice Fellow at Alliance for Justice. He currently serves as Lecturer in Law at Columbia Law School, and previously taught constitutional law, civil rights, and legislation at American University Washington College of Law. He also served for 26 years in the Department of Justice, where he litigated cases involving voting rights and discrimination in employment, housing, and education, and prosecuted police officers and racially motivated violent offenders before assuming a series of management positions, including acting Assistant Attorney General. For three years, Bill served as Sen. Edward M. Kennedy’s chief counsel on the Senate Judiciary Committee, and has also held positions at AFJ and the American Constitution Society. The opinions of the writer are his own and do not necessarily represent the positions of Alliance for Justice.