Bill Barr, the once and likely future attorney general, had one mission on Capitol Hill on Tuesday: convince the Senate that he would be an honorable man. In a day-long confirmation hearing before the Senate Judiciary Committee, the nominee reassured lawmakers that he would maintain the Justice Department’s independence from a president who constantly challenges it. He also explicitly vowed to defend special counsel Robert Mueller’s investigation from outside interference until it wraps up, whenever that may be.
These were no small promises. President Trump fired Barr’s would-be predecessor Jeff Sessions last year after 18 months of acrimony, largely driven by Sessions’s decision to recuse himself from the Russia investigation. The president has often denigrated the Justice Department’s post-Watergate practice of insulating itself from the White House’s political whims. He has also reportedly tried to fire Mueller at least twice, which would have sparked the nation’s worst constitutional crisis since Watergate.
Barr’s performance on Monday amounted to a Rorschach test of sorts. Many of his answers signaled that he would not be the hatchet man that Trump so clearly desires, and that he would resist efforts by outside forces to prematurely end Mueller’s inquiry. Other times, however, he gave vague and non-committal answers about how he would handle key questions about the Russia investigation. Those inclined to trust Barr may see a man trying to abide by DOJ regulations under extraordinary circumstances. But the likely next head of the Justice Department also gave plenty of reason for concern.
Multiple Democratic senators invoked the pledges made more than four decades ago by Attorney General Elliot Richardson, who promised to protect independent counsel Archibald Cox from political influence in the Watergate inquiry. Richardson later resigned during the Saturday Night Massacre rather than violate that pledge.
“If,” Delaware Senator Chris Coons asked him, “the president directed you to change those [DOJ] regulations and then fire Mueller, or simply directly fired Mueller, would you follow Richardson’s example and resign instead?”
“Assuming there was no good cause?” Barr replied.
“Assuming no good cause.”
“I would not carry out that instruction.”
Barr also had nothing but praise for those whom the president frequently denounces. “I don’t believe Mr. Mueller would be involved in a witch hunt,” he told South Carolina Senator Lindsey Graham, and said he had a “high opinion” of Deputy Attorney General Rod Rosenstein’s work. Barr later remarked that he found it unlikely that the special counsel’s removal would ever be justified. “Under the regulations, Bob Mueller could only be terminated for good cause, and frankly it’s unimaginable for me that Bob would give good cause,” he said. Some senators noted that he and Mueller have been close friends for more than two decades; Mueller even attended Barr’s daughters’ weddings.
On some matters, he even gave convincing and reassuring answers. “Do you believe a president could lawfully issue a pardon in exchange for the recipients’ promise to not incriminate him?” asked Vermont Senator Patrick Leahy. “No,” Barr quickly replied. “That would be a crime.” (I noted last year that Trump has all but promised to pardon Paul Manafort if the former campaign chairman refused to cooperate.) And when queried about Trump lawyer Rudy Giuliani’s recent assertion that the White House might seek to edit or correct any report from Mueller, Barr shot down the suggestion. “That will not happen,” he declared.
The ultimate fate of Mueller’s report, however, is far from certain. Barr noted to senators that under Justice Department regulations, there are actually two reports: Mueller’s final report to the attorney general, and whatever the attorney general decides to release about it. Though Barr said his goal would be to “get as much of the information as I can to Congress and the public,” he also suggested that there would be limits to what he would share. “I will commit to providing as much information as I can consistent with the regulations,” he told senators on multiple occasions.
What does that mean in practice? Barr wasn’t clear. “I don’t know at the end of the day what will be releasable,” he later admitted to Hawaii Senator Mazie Hirono. In an exchange with Texas Senator John Cornyn, he also criticized former FBI Director James Comey for his decision, mere weeks before the 2016 election, to publicly criticize Hillary Clinton when announcing the decision to not prosecute her over her email security while secretary of state. “If you’re not going to indict somebody, you don’t stand up there and unload negative information,” he explained. That raises questions about how much information he’ll disclose about the Russia investigation if it’s not used to bring criminal charges.
An even thornier question is whether Barr should recuse himself from it at all. Democratic senators asked Barr about his past writings on the Russia investigation. He wrote a Washington Post op-ed defending Trump’s dismissal of Comey a few days after it took place. A few months later, he sent to the Justice Department and the president’s lawyer a 19-page memo criticizing Mueller’s reported investigation into whether Trump obstructed justice by firing Comey. Barr even met with the president in the summer of 2017 to discuss whether he should join Trump’s legal team.
With that context, Democrats asked Barr a simple question: Would he commit to seeking and accepting the advice of career ethics officials at the Justice Department on whether he should recuse himself from the Russia investigation? Attorney General Jeff Sessions made a similar pledge during his Senate confirmation—and eventually abided by it, to Trump’s ceaseless fury. Barr refused to do so. He told Vermont Senator Patrick Leahy that he would definitely seek out their advice, then added that “at the end of the day, I would make a decision based in good faith on the laws and the facts.”
The answers marked a consistent theme in his testimony: that he would preserve his personal authority and discretion to the maximum extent possible. “I will not be bullied into doing anything I think is wrong by anybody, whether it’s editorial boards or Congress or the president,” he told Minnesota Senator Amy Klobuchar when she asked if he would defer to Mueller’s judgment on whether to subpoena the president. And while he agreed that Sessions was right to recuse himself, he panned his decision to pledge to recuse himself in the first place. “I don’t know why he locked himself into following that advice,” Barr remarked. “That’s an abdication of his responsibility.”
So how will Barr use that responsibility? At one point, he noted that his current state of semi-retirement and lack of political aspirations freed him from constraints that other attorneys general might feel. “I feel I’m in a position in life where I can do the right thing and not care about the consequences,” he said one point. “I can truly be independent.” Barr’s answers to questions on Tuesday gave Americans little reason to doubt that. But how he would use that independence remains murky at best.