William Barr’s testimony before the Senate Judiciary Committee this week was as close as you can get to a re-run of a similar hearing some 45 years ago to confirm another potential attorney general. In 1973, in the midst of breaking reports surrounding the Watergate scandal, Elliot Richardson, then the secretary of defense, was appointed by Richard Nixon to be his top law enforcement official. The constant drum beat of allegations of criminal wrongdoing, much like those currently surrounding Donald Trump, was growing in volume. Then, as now, the question was whether a political appointee would be able to ensure a full and fair independent investigation of the same president who nominated them for the job.
Then, as now, the question was whether a political appointee would be able to ensure a full and fair independent investigation of the same president who nominated them for the job.
In May 1973, Richardson appeared before the Senate Judiciary Committee to assure senators that Archibald Cox, his choice to be Watergate special prosecutor, would have full and independent control of the investigation. Richardson pledged that Cox’s prosecutorial decisions were not subject to review by anyone in the Department of Justice, and that he would have complete control over the investigation, and would only be removed for extraordinary improprieties. Richardson incorporated these promises of independence into Department of Justice regulations that governed Cox’s investigation.
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Richardson felt so bound to his commitment to the Senate that when he was directed by Nixon to fire Cox (an event that became known as the “Saturday Night Massacre”), Richardson refused. Believing that he would be fired, Richardson, along with Deputy Attorney General William Ruckelshaus, agreed they also could not obey Nixon’s order. As related to me many years later by Ruckelshaus, Richardson and Ruckelshaus asked Robert Bork, the next in line to be attorney general according to the Department of Justice hierarchy, to carry out Nixon’s order to prevent Nixon from installing a political hack from the White House who would undermine the independence of the Department of Justice.
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Today we are facing a similar, if not identical situation. Now, as then, an American president is at the center of a rapidly growing political scandal. The good news is that nominee William Barr’s testimony thus far mirrors the promises made by Elliot Richardson — and it seems likely Barr would not make such promises lightly. The bad news is that Robert Mueller, the special counsel assigned to investigate these various allegations, does not have the same kind of independence that Cox was afforded.
Mueller does report to the attorney general, who can approve or disapprove of his proposed actions. The attorney general can remove a special counsel “for misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies,” and “the Attorney General shall inform the Special Counsel in writing of the specific reason for his or her removal.” This is a lower standard for removal than existed for Cox.
Ironically, the current Department of Justice regulations providing for a special counsel follow to some extent the recommendation of the final report of the Watergate Special Prosecution Force not to extend “the special prosecutor concept on a permanent basis.” This recommendation was based on concerns that such a permanent office would lack political oversight, would suffer from institutional fatigue and could potentially interpret laws and regulations contrary to standard Department of Justice practice.
Within the current Department of Justice regulations, Barr has come perhaps as close as one can to the Richardson assurances provided to the Senate Judiciary Committee 45 years ago. Barr has promised that if he becomes attorney general, Mueller would not be fired without good cause and that he could not envision Mueller doing anything that would constitute good cause. Also like Richardson — who was a law student of Cox at Harvard — Barr and Mueller have a past professional relationship.
Barr has also promised the committee to “make as much information available as I can consistent with the (Department of Justice) rules and regulations.” He also emphasized the great national importance of Mueller’s investigation and that the investigation should continue unimpeded.
And in a letter to sent on Monday night to Sen. Lindsey Graham, R-S.C., chairman of the Judiciary Committee, Barr reiterated that he believed Mueller should be able to finish his investigation:
“I believe the country needs a credible and thorough investigation into Russia’s efforts to meddle in our democratic process, including the extent of any collusion by Americans, and thus feel strongly that the Special Counsel must be permitted to finish his work. I assured you during our meeting — and I reiterate here — that, if confirmed, I will follow the Special Counsel regulations scrupulously and in good faith, and I will allow Bob to complete his investigation.”
When asked if he would obey a presidential order to stop Mueller’s investigation for personal reasons, Barr responded, “I think it would be a breach of the president’s duties. It would be an abuse of power.” He also did not contest that a president can be guilty of obstruction of justice.
The bottom line is that Barr assured the committee that “where judgments are to be made by me, I will make those judgments based solely on the law and will let no personal, political or other improper interests influence my decisions.”
Based on the Elliot Richardson standard and the current structure of the special counsel position within the Department of Justice, the committee must continue to press Barr on all of these issues — including how he would react and what he would do if Trump did in fact order him to fire Mueller. Critics remain especially concerned about a memo Barr wrote to the Department of Justice prior to his nomination that seemed to suggest the Mueller probe was unnecessary. Barr has so far said many of the right things as far as Mueller is concerned, but promises made to Congress are not, technically, binding. Are they enough to prevent a second Saturday Night Massacre?