It is better to have an attorney general nominated by the president and confirmed by the Senate in an undoubtedly legal fashion than to have an acting attorney general serving in circumstances of dubious legality.
It is better to have an attorney general who is steeped in the traditions and culture of the Justice Department than to have an acting attorney general who is understood at the department to be operating as the “eyes and ears” of a president who is busily attacking the institution.
It is better to have an attorney general who has run the department before and served with distinction in other senior roles within it than to have an acting attorney general whose experience is limited to a brief stint running a relatively sleepy U.S. Attorney’s Office, and an even briefer stint as the chief of staff to the attorney general.
And it is better to have an attorney general with a long-standing professional reputation as a lawyer to protect than to have an acting attorney general who is professionally on the make and dependent on the president, and whose career has included no legal practice of any distinction but, instead, work for some rather shady outfits.
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.
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.
Another encouraging feature: Barr has worked with Mueller before. Mueller was assistant attorney general for the Criminal Division under Barr. I don’t know what sort of relationship they had, though at least one senior-level colleague of theirs, Timothy Flanigan, describes it as cordial and respectful. Indeed, I know nobody who has worked closely with Mueller who does not respect him a great deal. In other words, Barr would come in as someone of stature, reputation, and experience in the department, who has worked in the past with Mueller at senior levels—and he would do so having appeared before the Senate under oath and been asked for assurances about preserving the integrity of Mueller’s investigation.
This all seems promising, particularly in contrast to some of the people that Trump was reportedly considering for the post. Jeanine Pirro? Rudy Giuliani? Kris Kobach? Pam Bondi? Barr is not a figure like Ed Levi—whom Gerald Ford named to head the department after Watergate and who was above politics. But he is not a hack, either, and he is leagues better than some of the plausible alternatives.
All that said, there are legitimate reasons to be concerned. One of them is that Barr has made various statements over the last two years about matters now at issue before the department.
His mild criticism of the political contributions of members of Mueller’s staff to Democrats does not especially trouble me. His comments suggesting that the phony Uranium One matter is more substantial than L’Affaire Russe and seeming to defend Trump’s calls for a criminal investigation of Hillary Clinton are more upsetting. “To the extent it is not pursuing these matters, the department is abdicating its responsibility,” he said, apparently referring to Uranium One. Barr did make clear that the acid test for the Justice Department was not whether the “president wants [an investigation]; the ultimate question is whether the matter warrants investigation.” Still, the comment overall does not inspire confidence.
More troubling still, in my view, is Barr’s credulous endorsement of the firing of FBI Director James Comey, one which accepted the obviously pretextual claim that Trump had moved against Comey because of the latter’s handling of the Clinton email investigation. Though Comey speaks warmly of Barr as “an institutionalist who cares deeply about the integrity of the Justice Department,” the only defense I can muster of him on this point is that he wrote his comments before the interactions between Trump and Comey became publicly known. His defense of the firing looks, in light of what has emerged, positively foolish.
Perhaps more important than Barr’s comments are his long-standing views of executive power and how those will condition his supervision of the Mueller investigation. Jack Goldsmith flagged this issue in a tweet thread the other day, noting that given Barr’s views on the general subject, he might well take a narrow view of what a prosecutor can do in an investigation of the president. This point has both process implications and substantive implications.
For example, Goldsmith wrote, Barr would “likely take a broad view of [the president’s powers under] Article II [of the Constitution] & thus a dim view of claims that POTUS obstructed justice if the acts in question were plausibly related to the exercise of an Article II power (including supervision of prosecutions and the conduct of foreign relations).” For the lay reader, this point—on which I strongly suspect Goldsmith is correct—means that Barr might look askance at any obstruction of justice theory that treated an act that Trump is constitutionally authorized to take as obstructive. I have long believed that Mueller would not proceed on any such theory in any event. But I think that the likelihood of the Justice Department tolerating an expansive obstruction theory is minimal under Barr.
Goldsmith also nods to the process implications for Mueller of having an executive-power enthusiast at the helm of the Justice Department. An attorney general “with a disposition toward a strong unitary executive would likely want (at least) a very tight rein on an ‘independent counsel’ investigating the President,” he writes. That means, for example, that the chance of Mueller’s being able to issue a subpoena to the president might be lower. It means that the chances of the department’s respecting assertions of executive privilege with regard to, say, the contents of a Mueller report might be higher.
Relatedly, Barr appears to take a broad view of the proper use of the pardon power in investigations that dog a presidency. He consulted on, and recommended, the pardons of several Iran–Contra figures by President George H. W. Bush that effectively ended the investigation of that scandal. With Trump dangling pardons before those who don’t “flip,” that action obviously has echoes today—and rightly so.
Finally, Barr’s executive-power views would almost certainly mean fierce Justice Department resistance to the congressional investigations that are sure to proliferate under a new Democratic House.
All these points temper my optimism about Barr, because Barr—if so inclined—is much more dangerous than Whitaker. His knowledge of, and credibility and intimacy with, the department would, if turned against Mueller, make him a far more formidable opponent than a hack like Whitaker. All the features that make Barr attractive also make him scary.
So the Senate should grill Barr hard on all these points. At the end of the day, however, I suspect that he is likely as good as we’re going to get. And he might well be good enough. Because most of all, what the department needs right now is honest leadership that will insulate it from the predations of the president.
Is he the ideal nominee? No. But I like the department’s chances with Barr a lot better than I do with Whitaker—or many other people I can imagine Trump appointing and the Senate confirming. He’s a risk. But so is everything these days.
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