The confirmation hearing for William Barr went a lot better than the one for Jeff Sessions.
In fairness, that’s not a very high standard. The former Alabama senator made false statements to the Senate about his contacts with Russia, was forced to admit he had misled the public about his civil-rights record, and insisted he had “done no research” into whether the Russian government had interfered in the 2016 election.
Barr was far better prepared to take on the questions raised by his appointment as attorney general. Sessions resigned last November, after two years of being berated by President Donald Trump for recusing himself from the federal investigation into Russian interference. Trump’s appointment of Matthew Whitaker as acting attorney general was arguably unconstitutional; Whitaker, a Trump loyalist with a questionable past, did not occupy a Senate-confirmed position at the time of his appointment. Compared with his predecessors, then, Barr seems like an improvement.
After all, Barr said he would not fire Special Counsel Robert Mueller without cause. He told the Senate that the inquiry, which has led to the convictions of several of Trump’s former advisers, was not a “witch hunt,” as the president has insisted. He told senators that he would be “independent” and would “not be bullied into doing anything I think is wrong.”
In a normal administration, confirmation of Cabinet members would be a question of qualifications, temperament, and policy views. But with Trump, who has already been implicated in felonies by his former attorney, and who has sought on multiple occasions to stymie criminal investigations into his campaign and his associates, and who has flagrantly abused the powers of his office for personal and political gain, the main question of significance is whether a nominee would resist an order from the president to violate the law or the Constitution. That question takes on particular importance for a prospective attorney general, not only because it would be his responsibility to ensure equality under the law, but also because Trump views the office as key to protecting himself and his cohorts from legal consequences.
Here, Barr’s record and testimony are less reassuring than they might at first appear. There’s the 19-page memo describing the special-counsel inquiry as “fatally misconceived” that Barr wrote last June and personally sent to Trump’s attorneys. There’s the fact that Barr refused to commit to recusing himself from the Russia investigation if directed to do so by Justice Department ethics officials, as Sessions did once his misleading testimony to the Senate was exposed. This is no small question—Whitaker similarly refused to recuse himself after being advised to do so because of his prior attacks on the Mueller investigation, raising questions about whether his appointment was intended to provide the president and his defense attorneys with a window into Mueller’s work. But Whitaker’s ability to hamper the special-counsel inquiry was limited by his obvious lack of qualifications for the job, media scrutiny of his past, and the widespread perception that he was little more than a cat’s paw for the president.
There are fewer questions about Barr’s qualifications. After all, he used to be attorney general. Unlike Whitaker, he is well regarded as a civil servant by the bipartisan community of Justice Department alumni. And unlike Sessions, he was no Trump-campaign surrogate, and his hearing displayed none of the performative sycophancy that Trump demands from his advisers.
That should be reassuring. But it also means that, should Barr decide to interfere with or otherwise hamper the investigations into the president, or order inquiries into the president’s political enemies, he will have far more legitimacy to do so. Barr told The New York Times in 2017 that the Justice Department could be “abdicating its responsibility” by not pursuing further investigations into Trump’s 2016 rival, Hillary Clinton, whom Trump publicly threatened to imprison. Elaborate conspiracy theories about Clintonian crimes remain a staple of Fox News programming, but there’s little evidence of any wrongdoing.
Barr told the Senate Tuesday that he was merely saying that “whatever the standard is for launching an investigation, it should be dealt with evenhandedly.” In light of all the evidence that has emerged about the Trump team seeking the Russian government’s aid in defeating Clinton, Barr’s remarks don’t sound evenhanded at all. They sound like he’s justifying Trump’s using the Justice Department for political persecution.
Barr is also no stranger to helping presidents shield themselves from federal inquiries. In 1992, he supported President George H. W. Bush’s decision to pardon six people for crimes, including obstruction of justice, in the Iran-Contra investigation, which looked into whether the Reagan administration, in which Bush had served as vice president, illegally traded arms with Iran to fund right-wing paramilitaries in Central America.
One of Bush’s justifications for the pardons was that the “common denominator of their motivation—whether their actions were right or wrong—was patriotism.” That is an odious rationale—patriotism as a blanket excuse for lawbreaking would condone any number of atrocities. It is hardly a stretch to imagine Trump using the same rationale to pardon loyalists for refusing to cooperate with Mueller. Special Prosecutor Lawrence Walsh said the pardons demonstrated “that powerful people with powerful allies can commit serious crimes in high office—deliberately abusing the public trust without consequence.” The pardons were not merely rewards for “patriotism,” as the president insisted, Walsh said, but an attempt to prevent the investigation from implicating Bush himself.
Barr was asked during his confirmation hearing Tuesday whether a president could “lawfully issue a pardon in exchange for the recipient’s promise to not incriminate him.” Barr said that would “be a crime.” But the exact phrasing leaves open the possibility that Trump could abuse his pardon power to prevent associates from testifying against him—as long as no explicit promise was made. The template for that approach would be the Iran-Contra pardons that Barr himself supported.
Taken as a whole, Barr’s testimony is less comforting than it seemed. Barr is a respected party elder who possesses the legitimacy, legal acumen, and ideological convictions to shield the president and undermine the rule of law without committing the sort of ham-handed errors that could turn the public or Congress further against Trump. If Trump’s aim was to choose an attorney general who would protect him without igniting a massive public backlash, he may have made the best possible choice.
Barr has said he won’t be bullied into being a Trump crony. But that doesn’t mean he won’t do exactly what Trump wants him to do. It might just mean he doesn’t need to be bullied into it. For the sake of American democracy, and the rule of law, I hope that’s wrong.