[Congressional Record Volume 165, Number 27 (Tuesday, February 12, 2019)]
[Senate]
[Pages S1266-S1269]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


                           EXECUTIVE CALENDAR

  The PRESIDING OFFICER. The clerk will report the nomination.
  The bill clerk read the nomination of William Pelham Barr, of 
Virginia, to be Attorney General.
  The PRESIDING OFFICER. The Senator from South Carolina.
  Mr. GRAHAM. Madam President, we are now debating the nomination of 
Mr. Barr to be the Attorney General.
  All I can say is if America ever needed a steady hand at the 
Department of Justice, it is now. Mr. Whitaker has done a good job as 
interim Attorney General, but we are looking for a new person to bring 
stability, improve morale, and be a steady hand and mature leadership 
at a time when our country is very much divided.
  I told President Trump, when he mentioned Mr. Barr to me as a 
potential nominee: The other names are impressive, but Mr. Barr stands 
out head and shoulders above the others.
  If you knew who the others were, that is saying a lot.
  Why not believe that? The best indication of what Mr. Barr will do as 
Attorney General in the future is what he has done in the past. He has 
actually been Attorney General before. He was approved by this body, 
under Bush 41, to be the Attorney General by a voice vote. He has been 
the Assistant Attorney General for the Office of Legal Counsel and the 
Deputy Attorney General. He has been the chief lawyer for the CIA. In 
all of these jobs, he was confirmed by the Senate by voice vote.
  In other words, he was so well qualified that nobody felt the need to 
vote. Yes, he is a fine man. Let's go ahead and confirm him by voice 
vote.
  Now, here we are, in 2019, and I can say, without any doubt, that if 
you think Bill Barr has been auditioning for this job, you really 
haven't paid much attention to how this whole thing came about.
  Once the President mentioned to me that he was considering Mr. Barr, 
I asked him: Well, does he want the job?
  He says he doesn't know, but everybody tells me he would be one of 
the best picks I can make.
  I said: Well, I agree with what everybody else has told you.
  I called Mr. Barr, on several occasions, asking to please consider 
this: I know that you are at a good time in your life. Your children 
are grown. You have made it. You have done a good job. You have a 
stellar reputation, and you have done the work of several lifetimes. 
But having said that, seldom can somebody in their late sixties be able 
to contribute the most in their life, and I believe this is your time 
to make the biggest contribution. In terms of what you have done for 
the country, that is saying a lot. Again, very seldom does this moment 
come along where you can make the biggest contribution to the country 
later in life after having served before.
  So he agreed to take the job, and we have cloture by, I think, 55 
votes. He got voted out of committee along party lines.
  Senator Biden told me something that stuck with me to this day: Never 
question the motive of a Senator. They got here their way. You can 
question their judgment but not their motive.
  When it comes to Bill Barr, I can only tell my Democratic colleagues 
that there is nobody better that I know to recommend to you. This is as 
good as it gets on our side. I was happy when President Trump wanted to 
nominate Mr. Barr. I thought of all the people he could have chosen, 
and this was the top, by far.
  I say that because of the way he conducted himself over decades of 
service at the highest levels of government. He is a man of the law. He 
loves the law. His ethics is beyond reproach.
  When it comes to Mr. Mueller's investigation, the Barrs and the 
Muellers are friends, but it will be a business relationship. I can 
promise you this: Mr. Barr will make sure that Mr. Mueller can finish 
his job without political interference. He said that, I believe that, 
and that is the way this movie has to end.
  As for the memo that he wrote about one of the theories of 
obstruction of justice, related to the firing of Director Comey, I 
share his legal analysis and concern. If firing somebody that you have 
the ability to fire, for almost any reason, becomes obstruction of 
justice, then anytime you fire a U.S. attorney or assistant U.S. 
attorney, you are turning it into a political football.
  So as for the statute that he wrote the memo about, his reasoning 
about how you should be reluctant to use this for an obstruction of 
justice case made perfect sense to me. When he was asked about the 
President's obstruction of justice, he said: Of course, the President 
can be charged with obstruction of justice. If the President encourages 
somebody to give false testimony, that will be obstruction of justice. 
If they tried to hide evidence from the courts or the Congress, that 
would be obstruction of justice.
  The question was this: Could you bring a case based on firing 
somebody who is a political appointee? He had great reservations about 
that, but he acknowledged that the President is not above the law, and 
to suggest otherwise is not really listening to what he had to say--
wanting an outcome rather than listening to what he had to say.
  About sharing the Mueller report with the country at large, there is 
a regulation on point that basically requires Mr. Mueller to report to 
the chairman and ranking member of the Judiciary Committee of the House 
and of the Senate about the report. He has discretion to withhold 
information that he believes should be classified. He has to tell us--
the chairman and the ranking member--whether or not he disagreed with 
Mr. Mueller's decision in any fashion.
  In other words, if Mueller wanted to bring a charge or make an 
accusation, and Barr said no, under the regulation he would have to 
tell us that he actually disagreed with Mr. Mueller and why.
  As to how much he will release, we will know when he gets the report, 
but here is what I do believe. He is going to err on the side of 
transparency. I am not going to take his discretion away from him. I 
trust him to make a good decision, and his promising us to release the 
report before he gets it is probably a bridge too far. For anybody 
wanting the job to make a bargain with a Senator just to get the job--
that I will turn this report over even before I see it--is probably not 
the right answer.

[[Page S1267]]

  Here is what Mr. Barr said that really stuck with me. I am not making 
bargains with editorial writers, with pundits, or with elected 
political leaders that I don't feel are right for the Department. I 
don't want the job that much. I don't need the job in terms of building 
a career. I have had a great career. I am doing this because I think I 
can provide some leadership at a time we need some.
  We will have a vote here probably tomorrow. He is soon going to be 
Attorney General. I can tell all my Democratic colleagues that I cannot 
think of a better person to do this job at this time in our Nation's 
history. I know he will be devoted to following the law as the law is 
written. I know he will be fair to the President, but he will pick the 
rule of law over anything or anybody, including the Senate or the 
President.
  He will be a shot in the arm for a Department that needs a morale 
lift. He is going to look at the abuses inside of the Department. How 
could a FISA warrant be issued on an American citizen based on a 
dossier? It is a bunch of political garbage.
  As for what happened in 2016, he is going to look at that, too, I 
hope. But when it comes to Mr. Mueller, Mr. Mueller will be allowed to 
do his job, and there will come a day when his report is completed. I 
am confident that Mr. Barr will share it with the public to the fullest 
extent possible. I have every confidence he will.
  To the people who are working at the Department of Justice, in a day 
or two, you are going to have a new leader. I think you should be 
excited about the reforms that will be coming. I think you should be 
excited about working for this good man. He has dedicated his life to 
your causes--a Department of Justice that is impartial, that goes after 
the bad guys, and that makes sure that the policies in place build up 
the country.
  I think Mr. Barr represents that way of doing business in Washington 
that has sort of been lost. He is a ``handshake and phone call'' kind 
of guy. He has been up here for a very, very long time. He has earned a 
lot of accolades in the legal profession.
  Some of the people who came forward to testify on his behalf 
definitely have a different legal philosophy and political philosophy 
than Mr. Barr, but they all said, without hesitation, that he is one of 
the finest people they have ever known and he will be a great Attorney 
General.
  I want to thank President Trump for nominating Mr. Barr. I don't 
think he could have done a better job in picking someone than Mr. Barr. 
I want to let the people at the Department of Justice know that help is 
on the way. I want the American people to understand that this man has 
a record that should comfort you--that with Bill Barr, you know what 
you are getting. He has served at the highest levels of government for 
decades--former Attorney General, Deputy Attorney General, and chief 
legal counsel to the CIA. He has done it all.
  He is ready to take over, and he is mature in his judgment. He is 
calm in his demeanor. He is passionate about the law. He loves the 
Department of Justice.
  To the American people, you can go to bed here soon knowing that the 
Department of Justice is in good hands.
  To my colleagues that voted against him, give him a chance. I think 
he is going to deliver for the country.
  To the committee, thank you for allowing the nomination to go through 
so quickly.
  To Dianne Feinstein, who is a great partner, I appreciate the 
processing of the nomination. We may have differences of opinion about 
what the right answer is, but we could not have asked for a better 
process. Mr. Barr was challenged, but respectfully so.
  Having said that, we are about to confirm a new Attorney General at a 
time when we need one. This is just not somebody for the job. This is a 
very special person for the job.
  With that, I yield the floor.
  The PRESIDING OFFICER. The Senator from Rhode Island.
  Mr. WHITEHOUSE. Madam President, I guess I am here to follow my 
friend Senator Graham and bring the opposing view regarding Mr. Barr.
  I offer my appreciation to the chairman, as he leaves, for the way 
that he conducted the hearing. I know that he offered his appreciation 
to the ranking member, but the hearing, I thought, was well handled. 
Everybody had a chance to ask their questions and say their things, and 
I think the comments that the chairman made afterward about trying to 
bring the committee together were well received on my side.
  There are a number of problems, however, that I have with this 
nominee. Many of them relate to continuing problems in the Department. 
One, in particular, I warned Mr. Barr about in a letter that I sent to 
him beforehand in order to make sure that he wasn't surprised by the 
question and so that I could get a proper, thoughtful answer. The 
problem is that the Department, for purposes of recusal analysis and 
for purposes of conflict analysis, takes a look at what people's 
different financial entanglements are and who they worked for 
before. It is a fairly standard process, but there is a big gaping hole 
in it. The big gaping hole in the process is that when it was set up 
originally at the beginning of the Obama administration, the Supreme 
Court hadn't yet decided Citizens United, so the flood of unlimited 
special interest money that poured into our politics, which quickly 
became unlimited, special interest dark money, was not then a problem.

  Also, you didn't see a lot of Democrats who had a lot of engagement 
with dark money coming to high office, but with the Trump 
administration that all changed, and we now have an Acting Attorney 
General, Mr. Whitaker, who was paid $1.2 million through a group called 
FACT. Basically, FACT is a front group. It does no business. It has no 
product. It provides no service. It basically just pays Mr. Whitaker to 
go on talk shows and criticize Democrats. There are very few employees. 
The only employee I am aware of, other than, perhaps, clerical people, 
was actually Whitaker himself, so one would like to know why he was 
paid that money and who paid him in order to do proper recusal and 
conflict checks.
  But here is what is interesting: The money that came in to pay him 
through FACT, before it got to FACT, had been laundered through another 
group called Donors Trust. Donors Trust is another group that does no 
business, has no service, creates no product, manufactures nothing. Its 
purpose for existence is to strip the identities off of big donors--
ordinarily it seems big Republican special interest donors--so that the 
money they then give goes anonymously to groups that pretend they are 
not fossil fuel funded, for instance, because the identity of the 
fossil fuel donor has been stripped clean, or they are not the tool of 
the Koch brothers because the Koch brothers' identity has been stripped 
clean. It is a device for misleading and confusing people. When you 
consider how much of that $1 million went through to Mr. Whitaker in 
salary, the idea that he doesn't know who was paying him when so much 
of FACT's money came through that one donation is really improbable.
  He was questioned on this in the House the other day. I don't think 
he was truthful. I think he does know, and I hope--hope--that the House 
will pursue with subpoenas finding out who the donor was so that we 
actually know, because I think he does. Obviously, the donor does.
  So what we have now is a situation where the Acting Attorney General 
of the United States potentially has a $1 million conflict of interest 
that I believe the Acting Attorney General knows about, that the donor 
with whom he has a conflict of interest obviously knows about, that has 
been hidden from the rest of us through laundering through Donors 
Trust, and that is not an environment that is conducive to proper 
recusal and proper conflict-of-interest assessment.
  It is very poor practice, and if it weren't for the fact that dark 
money is so important to big Republican donor interests, I think people 
would readily clear this up. If the shoe were on the other foot, my 
colleagues on the other side would have steam coming out of their ears 
to get to the bottom of this. But because what is likely to be revealed 
is a big Republican donor, suddenly there is this massive disinterest.
  Mr. Barr proposed himself as the person who is going to come to this 
office to defend the Department of Justice, to put the institutional 
interests of the

[[Page S1268]]

Department of Justice first, to protect it from the vagaries of the 
Trump administration. Yet when he was asked about this, he completely 
fell down. He offered no sensible or reasonable assurances, so that 
concerned me a little bit.
  I then went on to ask him, since the Department of Justice has a 
National Security Division, which oversees counterintelligence work, 
and since the Department of Justice contains the FBI, which does the 
counterintelligence investigations to protect our country, I asked him 
this: In a counterintelligence investigation, in operating to protect 
our country in this counterintelligence function, what should the 
Department of Justice know about business or other entanglements of 
senior officials with foreign interests and powers?
  The very heart of counterintelligence is to look at American 
officials and see what their vulnerabilities might be to influence or 
control or manipulation by foreign interests and powers. That is the 
goal of doing counterintelligence in the first place.
  So what evidence do you need to be able to do that? Obviously, it 
would be helpful to know what business or other interests with foreign 
powers senior officials have so that you can make that assessment, so 
you can follow whatever leads that might produce, that may give you 
understanding of things that otherwise seem inexplicable. It is obvious 
evidence to support the FBI's counterintelligence function.
  Rather than give a straight answer and say ``Yes, this is obvious 
evidence, and obviously we will do our counterintelligence function 
better when we know when senior officials have foreign business 
entanglements,'' again he completely fell down in his answer and 
started quarrelling about what Senators have to declare and wouldn't 
give a straight answer. Well, there is an obvious reason he wouldn't 
give a straight answer. The obvious reason he would not give a straight 
answer is that the President who appointed him has significant--
although we don't understand them well yet--significant business 
entanglements that we don't know about. We need to find out what his 
business entanglements are, and it is really hard to assess some of his 
behavior without knowing who is on the other side of his foreign 
business relationships and how much money is involved and how much is 
at risk for him. That is pretty elementary stuff.
  If you are the person who is telling yourself, as the Attorney 
General, who is going to come in and be the institutionalist and defend 
the prerogatives of the Department, defend the procedures and protocols 
of the Department against a President who respects none of that and who 
has those very entanglements, to then come in and say ``You know what, 
I am not going to be interested in any of that; I am, instead, going to 
ask counterquestions back to you about other different officials''--the 
inability to get a straight answer to that question signals a great 
deal to me about when, in a pinch, he has to choose between defending 
the Department and protecting the political interests of the President, 
which way he is going to go. I gave him that choice in that question. I 
gave him that choice in that question, and he very clearly came down on 
the side of protecting the political interests of the President.
  If you can't get through a hearing question without flipping away 
from the interests of the Department and protecting the President, good 
luck when the pressure is really on. He lost enormous credibility with 
me in his inability to answer those questions.
  It is really hard to determine recusal for conflict of interest if 
you don't know who paid $1 million to a senior Department official, and 
it is really hard to determine counterintelligence issues if you don't 
know what foreign entanglements senior officials have. Those are 
statements I would hope would be so obvious as to be indisputable. Yet 
this candidate foundered on both of them.
  The other issue is the question of Executive power. Again, you would 
think that the Senate would be interested in standing up for the 
prerogatives of the legislative body since we are the legislative body 
and we have a very long and proud tradition.
  From that perspective, as a Senator and legislator, I look ahead, and 
I see constitutional battles. There are a lot of constitutional battles 
that I see coming. The first is going to be, if the President, when he 
gets or after he gets the budget measure that we have agreed to here--
hopefully, we have agreed to here; I think it is done--if he decides 
that he is going to declare a national emergency and start moving money 
around between accounts in order to build his, as I affectionately 
refer to it, ``big dumb wall,'' that is a constitutional problem, and 
article I of the Constitution says it is the legislature that has the 
power to appropriate and spend funds.
  So if a President is going to use his own unilateral declaration of a 
national emergency to say to Congress ``Sorry, your power of the purse 
is not actually all that real; it is the power of advice to me, and as 
soon as I declare a national emergency, I can spend your money where I 
want,'' that violates the separation of powers. That is a 
constitutional battle, and one can see it coming.
  Executive privilege is a constant constitutional battle between 
Congress and the executive branch. Congress wants information; Congress 
seeks information; Congress needs information to perform its 
constitutional oversight function. But certain narrow communications 
within the executive branch are protected from Congress's right to do 
that in order to protect certain conversations and freedoms directly 
around the President of the United States as he has conversations. That 
is the general understanding of how executive privilege works.
  Well, this administration has a very different understanding of how 
executive privilege works. They think that you get to come into a 
Senate hearing and not answer a question because some day maybe 
somebody else might exert executive privilege as to what you have said. 
But there is no deadline ever; there is no check ever; there is no day 
of reckoning ever. They just assert it, and because we have not 
enforced our powers here, they have gotten away with it. So executive 
privilege has grown into a swamp of executive obstruction of 
congressional oversight. We have to bring executive privilege back to 
its true base and its true roots, and as we try to do that, guess what. 
That is going to be another battle between the legislative and 
executive branches--another constitutional battle.
  The question of whether or not the President can be indicted by a 
grand jury is another constitutional battle we have coming, very 
likely. We will have to see what the special counsel and the other 
Department of Justice investigations into this President and the people 
around him reveal, but they could very well reveal sufficient evidence 
to justify an indictment of anyone else who is not the President.
  Within the Department of Justice there is a group called the Office 
of Legal Counsel, which is kind of the legal advisor to the Department 
of Justice. The Office of Legal Counsel has decided that a Department 
of Justice cannot indict a sitting President. Here is the problem with 
that. The Office of Legal Counsel isn't elected by anybody. They are 
career people. They tend to be hypersmart, but their purpose in life in 
opining on the separation-of-powers questions is to describe the 
maximum possible credible scope of Executive power. They represent the 
executive branch, and when they are making these separation-of-powers 
decisions, they always veer to the maximum greatest Executive power 
that they can justify. That does not mean that a court would agree with 
them. That does not mean that a court would agree with them.
  Ever since Marbury v. Madison, it has been the constitutional power 
of the courts, particularly the Supreme Court, to say what the law is. 
The question of whether a President can be indicted is a question of 
what the law is regarding the indictment of a President. So that 
question ought to be decided in a court, but as the Office of Legal 
Counsel is never going to let a case go forward, then how is the 
Department ever going to get that opinion that it has tested in court 
to get a real answer under the constitutional system? Well, they 
probably will not. It is going to be difficult. We are going to have to 
try to find a way, if they do assert that, to get that proposition 
tested in a court instead of relying on

[[Page S1269]]

the opinion of a group of lawyers within an executive branch Agency as 
to the relative powers of the courts and the executive branch.
  The question of interference with these investigations by the 
President and the independence of those investigations also raises a 
variety of constitutional questions.
  I have to say the top line of Mr. Barr on all of these issues was 
fantastic. I was kind of mentally cheering when he said some of the 
things he said about how he was going to keep his hands off, how he 
respected Mueller, how this was no witch hunt, how he was going to make 
sure it had full scope, how he was going to try to get the maximum 
transparency about the final report that he could--all of which was 
fine--and then we went into the weeds a little bit.
  As the old saying goes, the devil is in the details. The question was 
serious enough that I raised it in the committee after the hearing 
because I was unsatisfied with his responses. Chairman Graham was kind 
enough to acknowledge that those were pretty darn good questions, and I 
should get an answer to them. He said he would try to get an answer for 
me, and maybe we would get on the phone together to get Barr those 
answers. That did not come to pass.
  Instead, I wrote Mr. Barr a letter, asking him to clarify his 
answers. I got back a letter that provided no clarification at all. So 
I have given him quite a few chances to try to answer these questions. 
I haven't gotten a straight answer back, which makes me a little bit 
worried.
  Here is the problem--there are actually two problems. At the end of 
the day, whenever the Mueller report is concluded, that report can be 
provided to Congress, but there is considerable flexibility and 
considerable discretion within the Department of Justice and the 
Attorney General's office as to how much to give.
  I will interrupt because I see the distinguished majority leader 
here.
  I yield the floor to the distinguished majority leader.
  Mr. McCONNELL. I thank the Senator from Rhode Island.

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