At this critical juncture in the Mueller probe, anyone nominated to be attorney general by President Donald Trump would be bound to arouse suspicion. And William P. Barr brought to his nomination hearings this week some additional baggage in the form of previous hostile opinions to the probe.
But Barr presented himself as first and foremost an institutionalist who, in dramatic contrast to the president, “love[s] the Justice Department and all its components, including the FBI” — someone who sees himself in a “position to provide the leadership necessary to protect the independence and reputation of the department.” It can’t be lost on anyone that the threat Barr sees himself as parrying comes in the person of the president himself.
Further, Barr’s pledges to protect special counsel Robert Mueller’s work and see it through to completion were titanium strong. Barr emphasized his great personal respect for Mueller — whom he repeatedly called, tellingly, “Bob” — and flatly rebuffed the Trump talking point that Mueller was conducting a “witch hunt.” He described it as “unimaginable” that Mueller would provide cause to be discharged, pledged he would not carry out an order to fire Mueller in the absence of cause, and concluded: “I will follow the special counsel regulations scrupulously and in good faith, and, on my watch, Bob will be allowed to finish his work.”
Were Barr to break that promise to the nation, his distinguished career would end in ignominy.
Might he anyway? Two bases for fear occupy the Trump antagonists assessing Barr’s hearing performance.
First, he could, like so many before him, be corrupted by the president, whose chief managerial trait seems to be bringing out the worst and most craven in his circle. Jeff Sessions had a decent reputation when he became attorney general, but Trump’s constant bludgeoning took its toll and Sessions proved, among other failings, a weak defender of the Justice Department against vicious and meritless attacks from both Trump and the Hill.
It’s always possible the same thing could happen to Barr. But all in all, he came across, consistent with his reputation, as well-grounded and self-assured, nobody’s toady. When Sen. Patrick Leahy (D-Vt.) asked Barr about Trump personal attorney Rudolph Giuliani’s professed plan to annotate and revise the Mueller report, Barr said simply, “That will not happen,” and it did not seem remotely subject to doubt. Barr’s appointment, among other things, augurs the overdue shuttering of the Giuliani circus.
Second, Barr, like any nominee, could be dissembling. But as The Washington Post’s Dana Milbank wrote Tuesday, “Barr spent decades building his reputation. Why would he throw it away now by becoming the guy who buried the Mueller report?”
Still, how to square the Barr of the hearing with a different Barr, the partisan Republican who wrote the unsolicited memo trashing what he saw as Mueller’s obstruction theory and suggested there was greater basis for investigating the Uranium One allegations against Hillary Clinton than collusion? The Barr who wrote op-eds both defending James B. Comey’s public treatment of the Clinton email probe and defending Trump’s decision to fire Comey as FBI director for mishandling the probe?
The short answer, I think, is that Barr is in fact a partisan Republican, and his judgments as a private citizen skew in that direction. He combines them, moreover, with supreme confidence in his conclusions, on display Tuesday in his suggestion that the notion that his memo indicated an interest in the attorney general appointment was not only mistaken but also “ludicrous.”
The counterweight to that proclivity, though, is strict fidelity to law, and that is what Barr promised as attorney general. It was not fully appreciated in the hearing that his consistent North Star was the special counsel regulations — which he repeatedly promised to follow to the letter.
Thus, he seemed to open a can of worms with the suggestion that the country might not see Mueller’s report but only Barr’s possibly elliptical summary. Yet that is what the regulations call for, suggesting that the special counsel’s “confidential report” is akin to a prosecution or declination memo in a normal criminal case, which is often highly abridged.
The prospect that at the end of the day the public would receive only the most bare-bones summary of Mueller’s conclusions is, in fact, untenable, and Barr did repeatedly assure the committee that he would opt for the greatest degree of transparency consistent with the law.
Something has to give here, but the immediate point is that Barr is only reciting the regulatory command.
Likewise, there was Barr’s controversial answer to whether he would follow the recommendation of career ethics officials about recusing himself from the probe. He declined, which some senators took as a sign he would be inclined to repeat acting attorney general Matthew Whitaker’s borderline fraudulent strategy of seeking out, and then ignoring, career officials’ guidance in favor of the judgment of an unidentified cabal of political appointee advisers. Barr’s point, however, was that he wouldn’t surrender any of his powers as attorney general — either to the president or the Senate — in return for the job. In fact, he is unlikely to follow Whitaker’s lead, for starters because ethics officials probably will determine that his authorship of the memo doesn’t constitute grounds for recusal.
Finally, to my mind, perhaps the most important exchange of the hearing came when Leahy asked: “Do you believe a president could lawfully issue a pardon in exchange for the recipient’s promise to not incriminate him?” Barr responded, with no hesitation, “No, that would be a crime.” I take this response as a clean rejection of the royalist constitutional position that I feared he had endorsed in his memo, namely that a president cannot act unlawfully in the mere exercise of his enumerated powers, of which pardon surely is one. Those were the six most important words spoken in the entire hearing.
Litman is a former U.S. attorney and deputy assistant attorney general. He teaches constitutional law and national security law at the University of California at Los Angeles School of Law and the University of California at San Diego Department of Political Science.