02.13.19

Statement of Senator Patrick Leahy On The Nomination Of William Barr To Be U.S. Attorney General

The last time William Barr was before the Senate — 28 years ago during the George H.W. Bush administration — I voted for him to be Attorney General.  I did so despite having some reservations that I shared with him and the Senate at the time.  Mr. Barr and I do not see eye to eye on many issues.  We did not then and we do not now.  But he was clearly qualified for the position, and he had earned the confidence of the Senate.

Today we are considering Mr. Barr’s nomination under extraordinarily different circumstances.  Multiple criminal investigations loom over the Trump presidency.  These investigations may ultimately define it.  And the President has reacted to them the only way he knows how: to attack relentlessly. That includes attacking investigators, witnesses, even the justice system itself.  That also includes firing both an FBI Director and his previous Attorney General for not handling one of the investigations as he pleased.

The President views the Justice Department as an extension of his power.  He has repeatedly called on it to target his political opponents.  He has even reportedly told his advisors that he expects the Attorney General to protect him personally.   

The integrity of the Justice Department has not been so tested since the dark days of Watergate.  Yet when the Judiciary Committee considered the nomination of Elliot Richardson to be Attorney General in the midst of that national crisis, the nominee made numerous, detailed commitments to the Committee.  Mr. Richardson did so, in his words, to “create the maximum possible degree of public confidence in the integrity of the process.”  That same principle equally applies today.

Indeed, that may be the only way the Justice Department escapes the Trump administration with its integrity intact.  In large part due to the relentless politicizing of the Department by the President, millions of Americans will see bias no matter how the Department resolves the Russia investigation.  In my view the Department has only one way out: transparency.  The American people deserve to know the facts, whatever they may be.  That requires that the Special Counsel’s report, and the evidence that supports it, be made public.

Unfortunately, despite efforts from members on both sides of the aisle, Mr. Barr has repeatedly refused to make that commitment.  Worse, much of his testimony before the Judiciary Committee only left us with more doubts.  Will Mr. Barr allow President Trump to make a sweeping claim of executive privilege that hides the report?  Will Mr. Barr, relying on a Department policy to avoid disparaging uncharged parties, not disclose potential misconduct by the President simply due to another policy to not indict sitting presidents?  We simply do not know the answers.  But we do know that Mr. Barr’s testimony on these issues could lay the groundwork for potentially no transparency at all.

Mr. Barr also repeatedly refused to follow the precedent of Jeff Sessions and commit to follow the advice of career ethics officials on whether he needs to recuse himself from the Russia investigation.  He even declined my request to commit to simply sharing their recommendation with the Judiciary Committee.  This is critical because there is reason to question whether an appearance of a conflict exists. 

Prior to his nomination, Mr. Barr made his unorthodox views on the Special Counsel’s obstruction of justice investigation very clear with a 19 page memo sent directly to the President’s lawyers.  And Mr. Barr spoke dismissively about the broader Russia investigation, even claiming that a debunked conspiracy theory involving Hillary Clinton was far more deserving of a federal investigation than possible collusion.  It is difficult to imagine these views escaped the attention of the President.  That makes it all the more critical that Mr. Barr follow the precedent of prior Attorneys General and commit to following the advice of career ethics officials on recusal.

I am also concerned that, if confirmed, Mr. Barr would defend policies that I believe are both ineffective and inhumane.  At a time when the nation was still reeling from the systematic separation of families at the border, Mr. Barr praised Jeff Sessions for “breaking the record for prosecution” of the misdemeanor offenses that forced families to be separated. At a time when former Acting Attorney General Sally Yates stood up for the rule of law and refused to defend President Trump’s first iteration of his Muslim ban — a deeply flawed order, stained with racial animus, that even applied to individuals who were lawful permanent residents and had valid visas — Mr. Barr described Ms. Yates’ decision as “obstruction” and a “serious abuse of office.”    

Relevant to each of my concerns is the fact that Mr. Barr has extremely broad views of executive power.  He is an advocate of the unitary executive theory, believing that the Constitution vests nearly all executive power “in one and only one person — the president.”  He has said that an Attorney General thus has “no authority and no conceivable justification for directing the Department’s lawyers not to advocate the president’s position in court.”  That expansive view of a president’s power would concern me in any administration.  Indeed I believe it conflicts with Supreme Court Justice James Iredell’s observation, in 1792, that the Attorney General “is not called the Attorney General of the President, but Attorney General of the United States.” 

I find Mr. Barr’s deferential view of executive power especially concerning since we already know much of what President Trump intends to do.  That includes taking billions of dollars that Congress has already appropriated and diverting it toward a wasteful, ineffective vanity wall.  What would Mr. Barr do when confronted with such an order?  He has essentially already told us:  Mr. Barr has argued that Congress’s appropriations power, provided under Article 1, Section 9 of the Constitution, is “not an independent source of congressional power” to “control the allocation of government resources.”  He even believes that if a president “finds no appropriated funds within a given category” but finds such money “in another category” he can spend those funds as he wishes so long as the spending is within his broad “constitutional purview.”  Such views should concern all of us here who believe that Congress alone possesses the power of the purse. 

Ultimately, I fear that Mr. Barr’s long-held views on executive power would essentially be weaponized by President Trump — a man who derides any limits on his authority.  Over the past two years we have seen the erosion of our institutional checks and balances in the face of creeping authoritarianism.  That cannot continue.

Let me be clear:  I respect Mr. Barr.  I do not doubt that he, as Attorney General, would stand faithfully by his genuinely-held convictions.  But I do fear that this particular administration may simply need a much tighter leash.

I will vote no on Mr. Barr’s nomination.  

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