[Congressional Record Volume 165, Number 27 (Tuesday, February 12, 2019)]
[Senate]
[Page S1283]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                       NOMINATION OF WILLIAM BARR

  Mr. WHITEHOUSE. Thank you, Leader.
  Madam President, as I was wrapping up, I was pointing out that at 
some point there is likely to be a report that comes out of the special 
counsel's investigation, and there will be some material in that report 
that is properly stripped out of it before it is provided to the 
public.
  The two things I concede are proper to strip out of it are classified 
national security information that could reveal sources and methods of 
our intelligence operations, and the second is private and personal 
information, particularly related to witnesses, that is not necessary 
to the public's understanding of the report--people's phone numbers, or 
email addresses, or other private information. Those are very clearly 
appropriate to redact from the report.
  There are two other ways in which the Department of Justice could go 
into the Mueller report and just gouge great tranches of material out. 
One would be if an assertion by the President was made of executive 
privilege and if, without any contest or without any formative review 
or court review, the Attorney General simply agreed with the assertion 
of executive privilege by the President.
  We have seen these extreme, almost wild, unlimited assertions of 
executive privilege by members of the Trump administration. There has 
never been any discipline or proper process about it. There has never 
been any enforcement. So it is a wide-open field for mischief if the 
President decides that big chunks of the Mueller report shouldn't be 
disclosed to the public because he asserts executive privilege. Then 
Attorney General Barr says: Good enough for me. I am not going to let 
any of that go to the public or to Congress.
  That, to me, is a problem. That door is wide open, and it is the 
reason I have my opposition to this particular nominee.
  There is a longstanding tradition at the Department of Justice that 
when you are undertaking a criminal investigation and you develop, in 
the course of that investigation, derogatory information about people--
particularly about uncharged people--you don't get to just spill that 
out into the public record.
  The bad deed that was done by Jim Comey was to violate that 
Department rule and disclose derogatory investigative information about 
an uncharged person--specifically, Mrs. Clinton. That violated 
longstanding procedures and principles in the Department and kicked up 
a lot of criticism, including by me right at the time and since and 
also by Attorney General Barr. He stands, I think, in the best 
traditions of the Department to condemn the release of derogatory 
investigative information about an uncharged person.
  The rule as a prosecutor is, if you are going to say it, save your 
pleadings. Charge the guy. Put it in the indictment. Put it in the 
criminal information. Then defense can fairly react. Then you are 
accountable to the court for what you are saying, and then there is 
some discipline to it, but you don't get to describe unrelated or 
uncharged conduct that just happens to be derogatory.
  That actually continues on through the whole criminal case. You are 
not supposed to do it at any point. If you have something to say about 
the evidence in the case, you plead it in a pleading before the court; 
otherwise, you keep your mouth shut, and you stand on your pleadings.
  The problem comes when that rule gets applied in this case, and here 
is the circumstance: The Mueller report comes down, and it is full of 
derogatory information about the President and the people around him. 
But because the Office of Legal Counsel, as I described earlier, has 
decided that you can't charge a sitting President with a crime, now 
that President is an uncharged person--not because there wasn't an 
indictment to be brought against him, not because he didn't engage in 
criminal conduct, not because the government wouldn't ordinarily 
prosecute that case to the full extent of the law, but simply because 
of this little policy at the Office of Legal Counsel that you can't 
indict a sitting President--one that has never been tested in court and 
one that I think will fare badly in court if you look at the precedence 
of Nixon and Clinton and others.
  So now, with the President an uncharged person, do you then call in 
this doctrine and say: Hey, all derogatory investigative information 
about this uncharged person is now no longer amenable to disclosure to 
Congress or the public.
  It is a complicated situation, but it is easy to get there, and once 
you are there, the answer ought to be ``Well, obviously no,'' but I 
couldn't get that answer. I couldn't get a straight answer. Over and 
over again, despite the terrific top-line assertions Mr. Barr made, 
when you drilled down into the weeds, you couldn't get a straight 
answer, and when you tried, very often it was an easy answer to give, 
and you couldn't get that easy, straight answer. In those cases, it was 
a choice between the policies and the protocols and the propriety of 
the Department of Justice versus the political interests of the 
President's.
  If I can't get a good answer to a simple hearing question that 
properly puts the weight where it belongs to support the protocols and 
the procedures and the propriety of the Department of Justice, then 
when it is not so public and when the pressure is really on and when 
hard decisions have to be made, it is impossible for me to believe that 
he won't lean toward yielding to the President rather than defending 
and honoring the Department. That, for me, is enough reason to oppose 
this nomination.
  I yield the floor.

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