None of this is a character reference on behalf of Bill Barr, President Donald Trump’s nominee to run the Justice Department. In fact, there are legitimate reasons to be concerned about Barr’s nomination.
They are, however, all reasons to be cautiously optimistic about his nomination. And they are all reasons to prefer it to the unacceptable status quo under which we have been living, since Trump sought and received Attorney General Jeff Sessions’s resignation and replaced him on an acting basis with Sessions’s woefully underqualified chief of staff, Matthew Whitaker.
Barr would not be my choice for attorney general, both because of policy differences and because of other concerns I will spell out below. He possesses, however, a formidable mind and deep experience of precisely the right type. He has served as both attorney general and deputy attorney general. He has also run the Justice Department’s Office of Legal Counsel. He thus has extensive prior engagement with the department and its culture, norms, and traditions that makes him a far better bet than Whitaker to serve as a steward of the institution at a perilous time. Since leaving the department, Barr has worked as general counsel of Verizon and at the law firm of Kirkland & Ellis, in both roles acting as an able lawyer.
So as Preet Bharara argued in a recent episode of The Lawfare Podcast, he is a man with a reputation in the legal community that he will either burnish or tarnish with his behavior at the helm of the department he once ran. Barr has nothing to prove. But he does have a reputation he could burn. It is impossible for me to imagine the president bullying him the way he did with Sessions.
All this is encouraging. There are other reasons for tentative optimism, too. One of the pernicious features of Whitaker’s installation was that the Senate never got the chance to assess the man’s commitment to apolitical law enforcement and to extract from him pledges under oath to permit Robert Mueller’s investigation—and the other pending matters Trump wants to frustrate—to go forward. During Watergate, the Senate confirmation process for Attorney General Elliot Richardson proved critical, because Richardson committed himself to protecting the work of Special Prosecutor Archibald Cox and thus felt honor-bound not to fire him when ordered by President Richard Nixon to do so. So in Barr, we are dealing with not only someone with appropriate experience and a professional reputation, but also someone whom the Senate will have the opportunity to interrogate and, if appropriate, from whom it can extract pledges.
John Yoo: Whitaker’s appointment is unconstitutional
Senate Minority Leader Chuck Schumer gets this. He made clear immediately upon Barr’s appointment that Democrats, at least, will use the confirmation process as a lever to protect the special counsel and the public’s equities in his investigation. “Mr. Barr must commit—at a minimum—under oath before the Senate to two important things: First, that the special counsel’s investigation will proceed unimpeded, and second, that the special counsel’s final report will be made available to Congress and the public immediately upon completion,” Schumer told The New York Times. Whether senators can exact such concessions remains to be seen, but the process of having to answer questions while under oath in public should be disciplining for a nominee.