On 15 January the Senate Judiciary Committee began confirmation hearings for President Donald Trump’s nominee for attorney general, William Barr. Trump’s previous attorney general Jeff Sessions stepped down after facing repeated criticism from the president for recusing himself from Special Counsel Robert Mueller’s investigation into Russian election interference.
Ordinarily, the president might have been expected to appoint his deputy attorney general to replace Sessions, but Trump is furious with deputy attorney general Rod Rosenstein because of his handling of the Mueller investigation, which has already led to criminal convictions for a number of former Trump aides. Instead, Trump appointed a loyalist, Sessions’ chief-of-staff Matthew Whittaker, as a temporary acting attorney general.
Few dispute that Barr, who served as attorney general under President George H.W. Bush, is qualified for the role. However, Democrats in particular are concerned by a memo Barr wrote in June in which he argued that Mueller’s investigations into whether the president attempted to obstruct justice were “fatally misconceived”.
In a Washington Post op-ed in May 2017, Barr argued that Trump had made “the right call” by firing FBI director James Comey. Given Trump’s disregard for democratic norms, Democrats are also concerned at Barr’s sweeping view of presidential authority.
During the hearing, Barr emphasised his close friendship with Mueller, calling him “Bob” and saying that he would allow the Special Counsel to finish his work unimpeded and would not limit the scope of the investigation without notifying Congress.
Barr also affirmed that the investigation was not a “witch hunt”, as the president alleges, and said that he did believe that Russia had interfered or attempted to interfere with the 2016 election. He made clear that Trump has not asked him to fire Mueller or interfere in the Special Counsel’s work and said that he would not fire Mueller at Trump’s request unless there was “good cause”. “On my watch, Bob will be allowed to finish,” he said.
Barr was less clear about how much of Mueller’s report he would make available to Congress and the general public. The report sent to the attorney general would be confidential, and Barr would then produce his own version of the report to Congress. He said that he would not allow the president to change the report before it is released, as Trump’s lawyers have suggested, but stopped short of pledging to make the full report public. He told Dianne Feinstein, the top Democrat on the committee, that he was committed to making us much information public as he can, “consistent with rules and regulations”.
Asked several times to justify his June memo criticising Mueller, he said that he had been “speculating” and was “writing in the dark”, without intimate knowledge of Mueller’s intentions. The point of the memo, he argued, had been to explore the potential long-term ramifications of Mueller’s possible approach to determining whether the president had obstructed justice.
The hearings were also an opportunity to quiz Barr on his policy positions, and a chance for Democratic senators eyeing potential 2020 runs to try to raise their own profile. One such senator was Cory Booker of New Jersey, who said that Barr had “written the rule book on mass incarceration”, referring to a 1992 memo titled “The Case for More Incarceration”.
Booker pointed out Barr’s previous opposition to reducing mandatory sentences and asked if Barr would commit to commissioning a study on racial bias in the criminal justice system. “I’m the only senator who lives in an inner city,” Booker said, clearly directing his comments to a broader audience. Barr stopped short of committing to the commissioning a report, but said he’d “welcome” a meeting with Booker to discuss criminal justice reform.
Several times throughout the hearing Barr justified his support for punitive sentencing as a proportionate response to America’s high crime rate in the nineties and suggested that his position had since shifted. He confirmed that he would help implement the First Step Act, passed late last year, which would reduce mandatory sentences for drug cases. He underlined, however, that he still believed that tough sentencing laws are the best way to tackle violent crime.
Democratic Senator Kamala Harris, who is also expected to run in 2020, pressed Barr on his support for a border wall. “I advocate a barrier system in some places,” Barr replied, apparently at pains to avoid the word wall.
In Barr’s opening remarks he made clear his intention to take a hard line against undocumented immigration. He refused, however, to give an indication as to whether he thought it legal for the president to declare a national emergency in order to divert disaster relief money for the wall.
Harris also asked Barr about his stance on the legalization of marijuana. Barr has said that although he personally would not have supported the legalisation of marijuana he did not intend to enforce the federal law in states that have legalized it. He added that he did not believe the current situation – in which state policy has diverged from federal policy – should be sustained, arguing that the two should be realigned.
Although Trump’s frustration with Sessions reveals that the president expects his attorney general to remain personally loyal to him, during the first day of his confirmation hearing Barr made clear that he, too, would protect the independence of his office.
Barr, who is 68, said that he had reached a stage in his career when he no longer had to worry about his “political capital”. “I’m not going to do anything that I think is wrong, and I’m not going to be bullied into doing anything that I think is wrong,” Barr said. It was a statement that both parties would no doubt support, and Barr is likely to be confirmed – if only because the Democrats are so keen to get rid of Whitaker. President Trump, however, may not be so pleased.