[Congressional Record Volume 165, Number 28 (Wednesday, February 13, 2019)]
[Senate]
[Pages S1288-S1289]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
Nomination of William Barr
Mr. President, finally, the Senate will soon resume debate on the
nomination of William Barr to be the Attorney General. I oppose this
for many reasons, and later today I will join my Democratic colleagues
during debate time to lay out my opposition to this nominee.
I yield the floor.
The PRESIDING OFFICER. The Senator from California.
Mrs. FEINSTEIN. Mr. President, I thank the leader for his comments. I
want to just say that the Democrats on the Judiciary Committee agree
with him, and on their behalf, I would like to make the following
comments.
Last week, the Judiciary Committee voted on the nomination of William
Barr to be Attorney General of the United States. All Democrats voted
against the nomination. There are reasons.
There is no question that Mr. Barr is qualified. He previously served
as Attorney General from 1991 to 1993, and he has had a long legal
career, but the question before us is whether Mr. Barr is the right
choice to lead the Justice Department, at this time, with this
President, when there are currently several active investigations that
implicate this President, his campaign, his advisers, and/or his inner
circle.
The answer for me and the Judiciary Committee Democrats is no. Let me
explain why. Five months before being named for the Attorney General
position, Mr. Barr wrote an extensive 19-page, single-spaced memo in
which he provided great detail and legal arguments for his view of the
President's absolute authority. Mr. Barr then shared and discussed that
memo with the White House Counsel and the President's defense lawyers.
In this memo, Mr. Barr outlined his views on Special Counsel
Mueller's investigation into possible obstruction of justice, the
unitary executive, and whether a President can, in fact, be indicted.
One example, Mr. Barr argued that Special Counsel Mueller should not
be allowed to question the President about obstruction of justice--
point 1.
He concluded that the law does not apply to the President if it
conflicts with a broad view of Executive authority, and that view is
often referred to as the unitary executive.
Under this belief, conflict of interest laws cannot and do not apply
to the President of the United States because, as Mr. Barr writes in
his memo, ``to apply them would impermissibly `disempower' the
President from supervising a class of cases that the Constitution
grants him the authority to supervise. Under the Constitution, the
President's authority over law enforcement matters is necessarily all-
encompassing.''
Read the memo. This is on page 11.
Further, Mr. Barr asserted that ``the Constitution, itself, places no
limit on the President's authority to act on matters which concern him
or his own conduct.''
Mr. Barr went on to explain that, in his view, President Trump would
have virtually unlimited authority over the Executive branch. As he
said in his memo, the President ``alone is the Executive branch. As
such, he is the sole repository of all Executive powers conferred by
the Constitution. Thus, the full measure of law enforcement authority
is placed in the President's hands, and no limit is placed on the kinds
of cases subject to his control and supervision.''
That is page 11 of the memo.
Importantly, based on these conclusions, Mr. Barr asserts that
certain Presidential actions--including firing FBI Director James Comey
or telling the FBI to go easy on Michael Flynn--is never obstruction of
justice.
In fact, Mr. Barr even said that ``the President's discretion in
these areas has long been considered `absolute,' and his decisions
exercising this discretion are presumed to be regular and are generally
deemed nonreviewable.''
That is page 10 in the memo.
This is a stunning legal argument. Taken to its natural conclusion,
Mr. Barr's analysis squarely places this President above the law. To
argue that the President has no check on his authority flies in the
face of our constitutional principles of checks and balances and should
be concerning to Democrats and Republicans.
Mr. Barr's views about the power of the President are especially
troubling in light of his refusal to commit to making the special
counsel's findings and the report publicly available, and his refusal
to agree to protect the other investigations into President Trump.
When I asked Mr. Barr about this at the hearing, he said, in his own
words, that he would ``make as much information available as I can
consistent with the rules and regulations that are part of the special
counsel regulations.''
When others pressed him, he changed his answer to suggest that he may
instead release a summary of the special counsel's findings. This is
not acceptable. There is nothing in existing law or regulations that
prevents the Attorney General from sharing the special counsel's report
and underlying factual findings with the American public. Many of us
believe this report is seminal to the Presidency, and the public must
be able to read it.
In addition, as part of our oversight responsibilities, Congress
routinely requests and receives confidential information related to
closed investigations. In fact, recently Congress asked for and
received investigative information, including transcripts of FBI
interviews of witnesses involved in the examination of Secretary
Clinton's emails. This matter should be treated no differently.
After Mr. Barr's hearing, I sent him two letters. First, I asked him
to provide Congress and the American public with the full accounting of
the Mueller investigation, including any report prepared by the special
counsel himself.
Secondly, I asked him in writing to commit to protecting all
investigations into matters surrounding President Trump and the 2016
election.
Mr. President, I ask unanimous consent that these two letters be
printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
U.S. Senate,
Washington, DC, January 17, 2019.
Mr. Barr: I very much appreciated your responses to
questions before the Committee and hearing directly from you
on many important issues. As I noted during the hearing,
ensuring access to Mueller's findings and recommendations--
unchanged--is of utmost importance. To this end, I and others
asked you about releasing the report as drafted from the
Special Counsel. When I first asked you, you clearly stated
you would provide the report. Specifically, I asked,
``Will you commit to making any report Mueller produces at
the conclusion of his investigation available to Congress and
to the public? And you responded, ``As I said in my
statement, I am going to make as much information available
as I can consistent with the rules and regulations that are
part of the special counsel regulations.''
I then asked, ``Will you commit to making any report on the
obstruction of justice public?'' You responded, ``That is the
same answer. Yes.''
Later as others pressed you on these answers you expanded
by saying:
``As the rules stand now, people should be aware that the
rules I think say that the Special Counsel will prepare a
summary report on any prosecutive or declination decisions,
and that that shall be confidential and shall be treated as
any other declination or prosecutive material within the
Department.''
In fact the regulations state, ``At the conclusion of the
Special Counsel's work, he or she shall provide the Attorney
General with a confidential report explaining the prosecution
or declination decisions reached by the Special Counsel.''
As you may be aware, there is nothing in the regulations
saying the report should be ``treated as any other''
Department material, nor is there anything defining
confidential. Finally, there is no language in the
regulations indicating that Congress cannot have access--
especially when the materials in question relate to a
completed investigation.
It is also worth noting that in the most recent past
practice, the Department has provided Congress with
investigative reports and other materials, including notes
and summaries of witness interviews. Specifically, with
regard to the investigation into Secretary Clinton the
Department provided investigative reports, as well as notes
and summaries of witness interviews. As you testified ``the
country needs a credible resolution of these issues'' which
argues in favor of complete transparency and public
disclosure of as much information as possible, consistent
with national security and active law enforcement needs.
I would appreciate your response on this as quickly as
possible, and prior to the Committee's consideration of your
nomination in our Executive Business meetings.
Sincerely,
Dianne Feinstein,
U.S. Senator.
[[Page S1289]]
____
U.S. Senate,
Washington, DC, February 7, 2019.
William P. Barr,
Kirkland & Ellis LLP,
Washington, DC.
Dear Mr. Barr: I am writing to follow up on my January 17
letter about Special Counsel Mueller's investigation, and
regarding other investigations that implicate the President's
interests. As you know, you were asked numerous questions
about both the Mueller investigation as well as
investigations in the Southern District of New York, Eastern
District of Virginia, and District of Columbia.
As raised at your hearing, it is imperative that all of
these investigations be free from any interference and
allowed to continue. In your June 2018 memo, you took the
position that ``no limit is placed on the kinds of cases
subject to [the President's] control and supervision,''
including ``matters in which he has an interest.'' While you
testified that you would not stop these investigations, you
qualified your answer by saying ``if I thought it was a
lawful investigation.'' When asked if the President could
fire prosecutors on these cases, you responded that ``the
President is free to fire his, you know, officials that he
has appointed.''
This gives you, and the President, considerable discretion
and power over these investigations. I therefore ask for your
commitment that these investigations will be allowed to
proceed without interference, and for an explanation of how
you will safeguard their independence and integrity, if
confirmed.
Thank you for your attention to these important matters.
Sincerely,
Dianne Feinstein,
U.S. Senator.
Mrs. FEINSTEIN. I did not receive the courtesy of a response to
either letter.
Here is a man seeking approval of his appointment. The ranking member
of the Judiciary Committee sends him a letter asking two very valid
questions, and there is no response. That told me something very loud
and clear.
Over the past year, we have seen several other investigations arising
out of the Southern District of New York, the Eastern District of
Virginia, and the District of Columbia, where prosecutors are looking
into crimes involving foreign donations into the Trump inauguration
committee, money laundering, campaign finance violations, as well as
possible efforts by Russian agents to assist the Trump campaign during
the election. When asked about these investigations at his hearing, Mr.
Barr refused to pledge they would be protected from interference. He
refused to pledge that these valid investigations would be protected
from interference.
For example, Senator Coons asked, ``If the President ordered you to
stop the [Southern District of New York] investigation in which someone
identified as individual one is implicated, would you do that?''
Mr. Barr responded that ``every decision within the department has to
be made based on the attorney general's independent conclusion and
assessment that it's in accordance with the law, so I would not stop a
bona fide lawful investigation.''
However, this qualification of ``a bona fide, lawful investigation''
is all important. In his 19-page memo, Mr. Barr clearly wrote this:
``The full measure of law enforcement authority is placed in the
President's hands, and no limit is placed on the kinds of cases subject
to his control and supervision,'' including ``matters in which he has
an interest.'' I really see why he was nominated. This is the offering
of complete protection from the law by the Attorney General--future
Attorney General, if he should become one.
Mr. Barr went on to argue that if the President determined ``an
investigation was bogus, the President ultimately had legitimate
grounds for exercising his supervisory powers to stop the matter.''
This would mean that the President could stop the Mueller
investigation, which the President has repeatedly described as a
``witch hunt'' and ``hoax.''
It also means that if Donald Trump decided the Southern District of
New York's investigation was, in Mr. Barr's words, ``bogus,'' the
President would have the right to stop the investigation. Think about
that. Think about the ramifications of that.
When Senator Blumenthal asked Mr. Barr during his hearing, ``If the
President fired a United States attorney, would you support continuing
that investigation, even under the civil servants, the career
prosecutors, who would remain?''
Mr. Barr replied, ``Yeah . . . I believe, regardless of who or what
outside the department is trying to influence what is going on, every
decision within the department relating to enforcement, the attorney
general has to determine independently that--that it is a lawful
action.''
Think about that. The Attorney General becomes the arbiter,
independently, of what a lawful action comprises. But, again, according
to this memo, firing a U.S. attorney, even if it implicates the
President's own personal interests, is a lawful action by the
President.
During this hearing, Mr. Barr stated that ``the President can fire a
U.S. attorney. They are a presidential appointment.''
The meaning of this is clear: Prosecutors in these cases can be fired
arbitrarily by the President of the United States under his plenary
authority.
As I said at the outset, the question is whether Mr. Barr is the
right person for the job at this time. The memo that I am quoting from
I spent a full day reading and thinking about, and it was the most
extreme case for Presidential power that I have ever read. In and of
itself, it gives me cause to believe this is why--I could be wrong, but
this is why he received that nomination.
Given the broad implications of Presidential power and unlimited
control Mr. Barr believes this President has over law enforcement
matters, I cannot support this nominee to serve as Attorney General. At
this critical time in our Nation's history, we must have an Attorney
General who is objective and who is clearly committed to protecting the
interests of the people, the country, and the Constitution.--not the
President.
I yield the floor.
The PRESIDING OFFICER. The Senator from North Dakota.