Bill Barr's Catch-22
A planned Senate Judiciary Committee vote on William P. Barr’s nomination to serve as attorney general has been delayed for a week, as Democrats continue to raise concerns about whether he would allow special counsel Robert S. Mueller III to finish his probe and publicize the results unimpeded.
Yeah, that's a problem. If everyone assumes that a sitting president can only be impeached, not indicted, then the standard rule that you don't reveal any evidence about subjects you don't indict means the Justice Department cannot share evidence of Trump's criminality with the congress. In other words, the congress would have to develop all the information on its own, without any of the resources of the Justice department and, in this case, the intelligence community, to determine whether the president is a criminal or a traitor.
The delay, which is customary for high-profile nominations, is not expected to impede Barr’s chances of being confirmed by the full Senate. But it is the latest reflection of the deep partisan tension surrounding Barr’s nomination, most of which centers on Democrats’ desire to protect Mueller’s probe from being unduly constrained.
The committee postponed its vote on Barr as one of 46 nominations the panel was scheduled to vote on Tuesday but decided to delay until its next meeting.
In both his public testimony and his written answers to senators’ questions, Barr has repeatedly refused to give senators any firm guarantee that he will release Mueller’s report to Congress and the public free of redactions. In similar fashion, he has only promised to ask for, but not necessarily heed, the advice of the Justice Department’s ethics counsel on the matter of whether he should recuse himself from oversight of the probe.
That has particularly frustrated Democrats, who take issue with a memo Barr penned last year arguing that in scrutinizing the actions of the Trump campaign, Mueller appeared to be interpreting an obstruction of justice statute too broadly. Democrats fear the memo is evidence that Barr, who served as attorney general under President George H.W. Bush during the early 1990s, might seek to limit the scope of Mueller’s probe.
Though Barr has said that, as a former attorney general, he often weighs in on topics of the day, he acknowledged in written answers to lawmakers that he could not recall another case in which he sent the Justice Department such a memo.
Barr’s written answers also sparked bipartisan concerns about how much information he might allow Mueller to release specifically concerning Trump. In an answer to Sen. Christopher A. Coons (D-Del.), Barr said that “it is Department policy and practice not to criticize individuals for conduct that does not warrant prosecution.”
On Tuesday, Sen. Sheldon Whitehouse (D-R.I.) pointed out that if Barr decided to follow department legal guidance that a sitting president could not be indicted — or, by extension, prosecuted — it could keep Trump out of the report entirely — even if Mueller found concerning information about the president.
Panel chairman Sen. Lindsey O. Graham (R-S.C.) agreed that possibility was concerning.
“If you agree you can’t indict the president, it’s probably not a good reason not to share with us the derogatory information,” Graham said, promising to pursue Barr on that point. He also pledged to ask Barr whether he would let Trump claim executive privilege to muzzle portions of the report.
The congress has certain power. It can subpoena witnesses and documents. But it depends upon the Justice Department for enforcement purposes. This won't work.
But I don't expect this will make a difference. If Bill Barr decides that his job is to protect the president, that's probably what will happen. We only have two years.
If this happens, we'll end up with the vague conclusion that Trump is just a moron, which could easily be interpreted as exoneration. I mean, everyone knows he's a moron. I don't think that's a deal breaker, frankly. Reagan and Bush weren't exactly intellectual giants. This country is fine with that.