William Barr filed his written answers to senators’ questions this week shortly before the Senate Judiciary Committee postponed until February 7 the vote on his confirmation as attorney general. The answers did nothing to soften his harsh views on criminal justice, civil rights, and reproductive choice. Nor do they allay concerns about his handling of the Mueller investigation. Rather, his answers suggest that we will never know whether career ethics officials advise him to recuse himself from the Mueller investigation. Further, while promising transparency, Barr’s answers clear a path for burying Mueller’s final product.
At his hearing, Barr stated that he would consult career ethics officials regarding recusal from oversight of the Mueller investigation, but refused to commit to following their advice, as previous nominees, including Jeff Sessions, had done. He insisted that he would make his own determination, regardless what ethics officials said. In his written answers, he refused to budge and added that he would not commit to making officials’ advice public. The public, therefore, likely will never know whether ethics officials told him to recuse himself, though the public likely will hear if officials do not urge recusal. In any event, Barr appears firmly committed to supervising Mueller.
Regarding release of any Mueller report, Barr repeated his statement that his “goal will be to provide as much transparency as I can consistent with the law, including the regulations discussed above, and the Department’s longstanding practices and policies.” In context, this reasonable-sounding language provides the rationale for a spare notification to Congress that the special counsel investigation is complete and little more.
The regulations that Barr committed to follow require only that the attorney general notify Congress when the special counsel’s investigation is closed. The required content for the notification is an explanation of any instance in which the attorney general overrode a proposed action of the special counsel as “so inappropriate or unwarranted under established Departmental practices that it should not be pursued.” Such a notification is unlikely to contain extensive discussion of the special counsel’s findings and conclusions. While the special counsel regulation states that the attorney general may release “these reports” to the public if he concludes it is in the public interest to do so, Barr made clear that he reads the regulation as authorizing release only of the attorney general’s notification to Congress and not the underlying special counsel report.
Moreover, in referring to “the Department’s longstanding practices and policies,” Barr noted that “the Justice Manual, sec. 9-27.760, cautions prosecutors to be sensitive to the privacy and reputational interests of uncharged third parties. It is also my understanding that it is Department policy and practice not to criticize individuals for conduct that does not warrant prosecution.” Barr also repeated his view that the OLC opinion of 2000, which holds that a sitting president cannot be indicted, remains controlling. Taken at face value, Barr’s statement means that because Trump cannot be indicted, Barr will be sensitive to Trump’s privacy and reputational interests and will not criticize him, since his conduct cannot warrant prosecution. So much for transparency.
DOJ policy against commenting on the conduct of people who are not indicted is an important safeguard. Jim Comey’s criticism of Hillary Clinton while announcing she would not be charged was an egregious breach. The FBI recommended against charges because it found insufficient evidence to indict and Comey (if he should have spoken at all) should have stopped there. If, however, Mueller finds sufficient evidence that Trump engaged in conduct for which he would be prosecuted but for his office, the public interest in learning the details will be overwhelming and must overcome traditional DOJ practice. The public has a need to know – as we head into another election cycle –whether its top elected official has engaged in otherwise criminal conduct. And Congress, which conducts impeachment, the constitutionally designated alternative to criminal indictment, must receive the evidence.
DOJ practice is flexible if the public interest requires. While most of DOJ guards closely the fruits of criminal investigations that do not produce charges, the Civil Rights Division traditionally has been more forthcoming. It routinely accommodates the public interest by making public its memoranda closing criminal civil rights investigations, making limited redactions to protect privacy and grand jury secrecy. Civil rights crimes – whether a police use of force or private violence motivated by race, religion, or sexual orientation – often leave communities wary and on edge. Releasing the fruits of a thorough investigation can help to ease tensions and promote healing. The Mueller investigation demands at least the same flexibility.
After Sen. Whitehouse raised concern this week that Barr’s testimony left open the possibility that Barr could invoke DOJ practice and claims of privilege to limit the content of his report, Chairman Graham agreed to seek further clarification from Barr. Senators Blumenthal and Grassley also co-sponsored legislation to require that special counsels submit full reports to Congress. Mitch McConnell almost certainly will bar the door to the senate floor if he sees this bill coming, just as he has in the face of legislation to protect Mueller. But, members should make him do it.
Senators must demand that Barr put aside traditional DOJ practice and promise to exceed the minimum reporting requirements of the special counsel regulations. They should demand a commitment to share detailed reporting from Mueller. The country is in an extraordinary posture with an administration subject to substantial criminal and counter-intelligence investigations. Falling back on regulations and traditional practices that were not formulated with this crisis in mind will disserve the public and thwart the proper functioning of our constitutional structure. Barr’s failure to acknowledge this crisis will be one more reason to deny him confirmation as attorney general.