William Barr, Donald trump’s nominee for attorney general—replacing Jeff Sessions who resigned in November—will go before the Senate Judiciary Committee today (Jan.15). Expect the 9:30am US eastern time event, which will be live-streamed on C-SPAN and PBS, to be tense and quite likely contentious.
Barr, who served as attorney general from 1991 to 1993 under George H.W. Bush’s administration, will no doubt be grilled for his controversial positions. Most notably, in 2017, he sent Trump “an unsolicited memo” explaining in 20 pages why Robert Mueller’s investigation of the president’s ties to Russia should not be allowed. If confirmed, Barr would oversee Mueller’s investigation.
The nominee’s interpretation of obstruction of justice laws was mocked as “wrong,” over broad, and “poorly reasoned” by University of Chicago law professors Daniel Hemel and Eric Posner in the blog Lawfare on Dec. 26. They say that Barr’s reasoning, if extended to other contexts, allows for the president to take bribes, for example. That is an untenable position for an attorney general to take, according to the professors. They write:
We hope that at Barr’s confirmation hearing, senators ask him whether he believes that the federal bribery statute applies to the president. If Barr says that it doesn’t, then we suspect that senators will be reluctant to confirm him. If he does not, then the burden is on him to reconcile his position on bribery and his position on obstruction of justice.
It appears now that the nominee will try to walk back from the positions he espoused in last year’s memo.
Although pundits have posited that Trump chose Barr because of the memo, the nominee now seems prepared to walk back from the positions he espoused in it, and to tell the judiciary committee that he supports Mueller’s investigation, the publication of the special counsel’s findings, and transparency generally. “I believe it is vitally important that the special counsel be allowed to complete his investigation,” Barr plans to say, according to prepared remarks obtained by NBC News today (Jan. 14). He will reportedly reassure the committee, “[W]here 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.”
Meanwhile, the confirmation hearings will provide a national platform for three Democratic senators reportedly mulling a 2020 presidential run: Kamala Harris, Cory Booker, and Amy Klobuchar. These three lawyers will no doubt pepper Barr with questions about his memo, taking the opportunity to be seen and heard by voters. With the memory of the bitter battle over US Supreme Court justice Brett Kavanaugh’s confirmation still lingering, and frustration over the current government shutdown, Barr is bound to face anger from the committee’s minority party.
“I’m going to let it be up to [Democrats]. You pick these fights at your own peril. [Barr will] be challenged for sure. Hopefully respectfully,” the new committee leader, Republican senator Lindsey Graham, tells Politico.
How Barr performs at this hearing will matter to the American people and to Democrats, perhaps. But it’s not likely to change the outcome, really. Republicans on the judiciary committee outnumber Democrats, and all Barr needs is a simple majority of votes. Assuming Republicans all approve Barr, he’ll pass by two votes no matter how he answers the tough questions and even if no Democrats vote to confirm him.