[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.


                                 S. 47

  Mr. THUNE. Mr. President, we are doing a number of important things 
in the Senate this week.
  Last night, we passed the Natural Resources Management Act. This is a 
bipartisan package of more than 100 individual bills that will help 
protect our natural resources, spur economic development, increase 
access to public lands, and much more.
  I was very pleased that my Custer County Airport Conveyance Act, 
which I introduced with the other Members of the South Dakota 
delegation, was included in this bill. This legislation will give 
Custer County Airport full ownership of the land on which it operates 
and allow the airport to make improvements to its facilities.
  Custer County Airport supports business and recreational aviation and 
fire suppression efforts in the Black Hills region, and I am pleased 
that this bill will increase the airport's ability to serve this area 
of South Dakota.
  I am grateful to Chairman Murkowski for her leadership on this 
important lands package, as well as to Ranking Member Manchin and all 
of those who worked on these bills at the committee level.