William Barr confirmation hearing: Trump's attorney general pick still has a lot to answer for

Barr seems to think the president is not just above the law — he is the law. But this view is incompatible with the nature and charter of our republic.
Image: William Barr pays a visit to Senator Ernst's office on Capitol Hill in Washington
William Barr, President Donald Trump's nominee to be attorney general, arrives to pay a visit to Sen. Joni Ernst of Iowa in her office on Capitol Hill on Jan. 10, 2019.Jonathan Ernst / Reuters
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By Glenn Kirschner, former assistant U.S. attorney for the District of Columbia and NBC/MSNBC legal analyst

President Donald Trump has nominated William Barr to be U.S. attorney general. It’s a job with which Barr is familiar, having served as attorney general from 1991–1993 under then-President George H.W. Bush. It’s worth noting that the Senate unanimously confirmed Barr in 1991, with the confirmation hearing being described as “unusually placid.” However, given that Barr recently weighed in on the propriety of the Mueller probe — suggesting that large swaths of the investigation are at best unwise and at worst illegal — his confirmation hearings promise to be anything but calm this time around.

A quick attorney general recap: The tenure of Trump’s first attorney general, Jeff Sessions, was troubled at best. Sessions recused himself from supervising Mueller’s investigation into possible collusion between Russia and the Trump campaign, a decision which Trump criticized publicly on multiple occasions. Trump complained that Sessions had failed to protect him from the purportedly endless investigation into Russian collusion and related matters.

Given that Barr recently weighed in on the propriety of the Mueller probe, his upcoming confirmation hearing promises to be anything but calm.

On November 7, 2018, just one day after the midterm elections, Trump fired Sessions. In a surprise move, Trump then installed Sessions’ chief of staff, Matthew Whitaker, as acting attorney general. Problems with the Whitaker appointment surfaced immediately. Whitaker was outside the usual line of succession (the deputy attorney general ordinarily would be elevated to acting attorney general) and he also hadn’t been confirmed by the Senate, a fact that some legal scholars believed made his appointment illegal. Former Acting Solicitor General Neal Katyal went so far as to observe that Whitaker is a “constitutional nobody,” and thus not eligible to serve as acting attorney general.

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Complicating matters further, Whitaker had been a paid board member for a company currently under investigation by the FBI for alleged fraud. Moreover, Whitaker had spent some time as an on-air legal commentator for CNN, offering opinions that were often highly critical of the Mueller investigation. At one point, he even suggested that one could effectively kill the investigation by choking off its funding. Whitaker seemed to be a veritable who’s who of conflicts and disqualifications.

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The backlash against Whitaker’s appointment was swift and vociferous. Accordingly, on December 7, Trump nominated William Barr to be the official attorney general. At first blush, Barr seemed like a safe pick: He is viewed as an “institutionalist,” reportedly concerned with the integrity and reputation of the Department of Justice. Some may have even wondered aloud why Trump would chose someone who seemed to be the kind of guy who would follow the letter of the law.

Those who thought Barr seemed too good to be true were proved right when it was revealed that on June 8, 2018, while a private citizen, Barr had delivered a 19-page memo to Deputy Attorney General Rod Rosenstein that was highly critical of the Mueller probe. (As an aside, it is extremely unusual for a private citizen to draft a legal memo and send it, unsolicited, to the Department of Justice.)

The Barr memo is an odd document. It starts out with an acknowledgment that Barr has no idea what facts Mueller has uncovered: “I realize that I am in the dark about many facts, but I hope my views may be useful.” He goes on to make assumption after assumption about the evidence Mueller does or does not have. He then proceeds to offer his admittedly uninformed opinions based on those assumptions.

Even more curiously, Barr purports to look into Mueller’s mind and reaches conclusions about Mueller’s thought processes. The memo contains dozens of references to assumptions such as, “I believe that Mueller’s team is considering” and “as I understand the theory, Mueller proposes” and “Mueller’s interpretation… all-encompassing... novel and extravagant.” The problem is that all of these suppositions are Barr’s alone — Mueller has said exactly none of these things. Barr is plainly setting up straw men just to knock them down.

At its core, Barr’s position is that a president cannot be investigated for what he calls a “facially lawful act,” that is, an act authorized by the Constitution. Barr puts into this category, “removing or appointing an official,” like cabinet members and FBI directors. He reasons that because the president is the nation’s top law enforcement official, he has “plenary discretion over the prosecutorial function.” Because his power is “absolute,” the president can also shut down any criminal investigation and dismiss any criminal case, even a case “in which his [the president’s] own conduct is being scrutinized.”

Stated another way, Barr argues that Trump did not commit a crime by telling then-FBI Director James Comey to stop investigating Michael Flynn because, as the country’s “top prosecutor,” Trump has unfettered power to terminate criminal investigations. Moreover, when Trump fired Comey (inferentially for refusing to go easy on Flynn) the president was simply exercising his plenary power to hire and fire executive branch officials. Again, in Barr’s opinion, there is nothing to see here and no investigation of Trump is necessary.

In Barr’s opinion, there is nothing to see here and no investigation of Trump is necessary.

Barr reasons that a president must be afforded this absolute, unconstrained authority because without it, his political opponents would rush to investigate every constitutionally authorized act of a president.

Barr does acknowledge one exception to his “facially lawful act” rule. He states that “the issue of obstruction only becomes ripe [and therefore open to investigation] after the alleged collusion by the President or his campaign is established first.” In other words, if Mueller has found evidence of collusion between the Trump campaign and the Russians, Barr believes that the president can then be investigation for obstruction and covering-up said collusion.

Of course, as Barr admits at the beginning of his memo, he has no idea if or when Mueller may have found evidence of collusion. Nevertheless, Barr wraps up one section of his memo with this: “Mueller should get on with the task at hand and reach a conclusion on collusion. In the meantime, pursuing a novel obstruction theory against the President is not only premature but — because it forces resolution of numerous constitutional issues — grossly irresponsible.”

Barr’s position has found little support among legal experts. Indeed, University of Chicago Law School professors Daniel Hemel and Eric Posner recently asserted in a New York Times opinion piece that Barr’s memo is so poorly reasoned that it “seriously damages his credibility and raises questions about his fitness for the Justice Department’s top position.” At its core, Barr’s position is that the president is not just above the law but that he is the law. This opinion is eerily reminiscent of President Richard Nixon’s infamous statement to David Frost: “When the president does it, that means it is not illegal.” History has shown us that such a view is incompatible with the nature and charter of our republic.

But as we head into Barr’s confirmation hearings, the nominee’s aggressive criticism prompts two questions. First, why did Barr draft and deliver this memo to the DOJ? Was he perhaps auditioning for the very job for which he has now been nominated? And second, why did Trump decide to nominate Barr? One thing is certain, Barr’s confirmation hearing this time around is unlikely to be described as “unusually placid.”