[Congressional Record Volume 165, Number 28 (Wednesday, February 13, 2019)]
[Senate]
[Pages S1300-S1304]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                       Nomination of William Barr

  Mr. President, I will now turn my attention to the vote that will 
happen shortly today or tomorrow on William Barr to be Attorney General 
for the United States.
  Mr. Barr is a highly accomplished attorney and an experienced public 
servant with an outstanding record. The

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Justice Department needs good, effective leadership, and we should act 
quickly to fill this top spot.
  I believe that Mr. Barr will be a good leader for the Justice 
Department as he has demonstrated in the past. In my opinion, at his 
Judiciary Committee nomination hearing, Mr. Barr was very candid with 
Senators. I believe he did his best at answering questions on his views 
on a wide variety of topics, as well as addressing concerns, including 
my own.
  For example, at the beginning of this confirmation process, I had 
concerns regarding Mr. Barr's prior negative statements on a subject 
that I have been working on for 4 years with Senator Durbin and Senator 
Lee--criminal justice reform.
  In particular, I was concerned about a 1992 Justice Department report 
released when he was Attorney General entitled ``The Case for More 
Incarceration.'' That title ought to tell you that he is tough on law 
enforcement. I was also concerned about a letter he signed in 2015 
opposing the bill that we then entitled the Sentencing Reform and 
Correction Act of 2015. Obviously, if I think we need criminal justice 
reform for the first time in a generation, and the Attorney General 
puts out a letter against the part of it that Senator Durbin and I were 
working so hard on--by the way, the President signed that just before 
Christmas--then, I think it is legitimate that I ask him these 
questions.
  As Attorney General, Mr. Barr will be responsible for implementing 
the recently passed FIRST STEP Act of 2018, which 89 Members of this 
body supported. These Members also worked tirelessly for its passage. 
The FIRST STEP Act is the title of the bill that I call criminal 
justice reform. This is why one of my first questions during his 
confirmation hearing was to directly and clearly ask Mr. Barr if he 
would commit to fully implementing the FIRST STEP Act, considering the 
fact that he had written a letter 3 years ago against the concept.
  His answer was very clear and convincing to me, and that was one 
word--``yes.'' He went on to say: ``I have no problem with the approach 
of reforming the prison structure and I will faithfully implement the 
law.'' Later in the hearing, other Senators pointed to Mr. Barr's past 
stances on criminal justice and sentencing reform. Those Members asked 
for Mr. Barr's current views on the subject. They also asked for 
assurances that Mr. Barr would dutifully implement the FIRST STEP Act, 
just like I asked that question.
  Mr. Barr expressed his current misgivings about high sentences for 
drug offenders established in the 1990s. Each time, he answered very 
clearly that he would dutifully implement the FIRST STEP Act and work 
to ensure that the intent of Congress was realized. Mr. Barr's answers 
regarding the FIRST STEP Act relieved my concerns of his past 
statements.
  While I will continue to use the oversight powers of Congress to 
ensure that the FIRST STEP Act is applied and implemented as required 
by law, I believe Mr. Barr's testimony, and I look forward to working 
with him on both the implementation of the current law and future steps 
in criminal justice reform.
  I want to go on to another issue of importance to me, which was Mr. 
Barr's position on the False Claims Act. If you remember my 
participation in the False Claims Act, going back to 1986, that act has 
brought in $59 billion of fraudulently taken money from the Federal 
taxpayers. Leaders and top prosecutors of both sides of the aisle have 
now praised the law as the most effective tool the government has to 
detect, to prosecute, and actually to recover public money lost to 
fraud. Most of the $59 billion has come as a result of patriotic 
whistleblowers who found the fraud and brought the cases at their own 
risk.
  To let you know why I am concerned about Mr. Barr's opinion, in the 
past he was extremely critical of the False Claims Act, even after it 
was signed by President Reagan. He called it unconstitutional. At one 
time, he said it was an ``abomination.'' So at his nomination hearing, 
I pointedly asked Mr. Barr whether he believed the False Claims Act is 
unconstitutional. He said: ``No, Senator. It's been upheld by the 
Supreme Court.''
  Mr. Barr also stated that he would fully and faithfully implement 
this very important law. He acknowledged the benefits of the False 
Claims Act and said: ``I will diligently enforce the False Claims 
Act.''
  I also asked Mr. Barr about his stance on something called the 
``Granston Memo.'' That memo provides a long list of reasons that the 
Justice Department can use to dismiss False Claims Act cases. Some of 
these reasons are pretty vague, such as ``preserving government 
resources.'' Just think as to how that can be used by some faceless 
bureaucrat to avoid some issue, like maybe he doesn't want to go after 
fraudulent money or doesn't like some whistleblower. Obviously, those 
words could mean anything the government wants it to mean.
  Of course, the government ought to be able to dismiss, obviously, 
meritless cases, but we don't want to give broad discretion to the 
administration without good justification. Even when the Justice 
Department declines to participate in a False Claims Act case, the 
whistleblower can and, in many cases, still does recover taxpayers' 
money.
  Although Mr. Barr had not yet read the memo, he pledged to sit down 
with me if problems arose. These are positive steps and positive 
statements. However, actions speak louder than words. So I want Mr. 
Barr to know that I am going to monitor aggressively how he enforces 
and protects the False Claims Act to ensure that he follows through on 
his promises.
  On another matter, during his confirmation hearing, I pressed Mr. 
Barr about transparency with regard to the special counsel's report. I 
made very clear that I want the report to be made public because 
taxpayers deserve to know what their money is being spent on--in this 
case, maybe $25 million to $35 million. I am not sure we have an exact 
figure, but it is a lot of money. The only way the American taxpayers 
and Congress can hold the government accountable is through 
transparency.
  You have heard me say many times that transparency brings 
accountability. Of course, there are some traditional reasons for 
withholding certain information even in a special counsel's report, 
such as national security or people's privacy, but there should be as 
much transparency as possible regarding the release of the report.
  During his hearing, Mr. Barr said that he would place a high priority 
on transparency, particularly with Mueller's report, and there is no 
reason to think that Mr. Mueller will not be allowed to finish his 
work. Mr. Barr told me and other members of this committee that he 
would ``provide as much transparency as [he] can consistent with the 
law and the Department's longstanding practices and policies.'' There 
is a lot of room there for him to work within, I suppose, and to still 
be honest in these answers. At this point, I can tell you I have no 
reason to doubt Mr. Barr's sincerity or his commitment to transparency 
and the law.
  If he is confirmed, I will be sure to hold Mr. Barr to his word on 
transparency. Yet I also realize that there are some differences of 
opinion around here on what is currently required under the Justice 
Department's special counsel regulations. That is why Senator 
Blumenthal and I recently introduced S. 236, the Special Counsel 
Transparency Act. This bill would require by statute that a special 
counsel provide a report to Congress and the American people at the 
conclusion of an investigation, not just Mueller's special counsel 
report but special counsels' reports into the future. This is 
commonsense transparency and accountability under any administration, 
not just under the Trump administration. I look forward to working with 
my colleagues and Mr. Barr, if he is confirmed, on this important 
legislation.
  I also pressed the nominee on a number of other issues that were 
related to transparency and accountability, including the Freedom of 
Information Act--or, as we call it around here, FOIA--and the Foreign 
Agents Registration Act. Around here, we refer to that as FARA. When I 
served as chairman of the Judiciary Committee, I helped to steer the 
FOIA Improvement Act of 2016 into law, which creates a very important 
point--a ``presumption of openness'' standard. The Justice Department 
oversees the Federal Government's compliance with FOIA. So that is why 
we discussed it with Barr. It is critical that the nominee, if 
confirmed to lead the Justice Department, takes FOIA and transparency 
seriously.

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  When you talk about a presumption of openness, it ought to be this 
simple: Any of the public's business ought to be public, and you 
presume it to be public. Let the government give a justification as to 
why it ought to be kept secret or not be open to the public under the 
Freedom of Information Act.
  I asked Mr. Barr if he agreed that FOIA were an important tool for 
holding the government accountable. Naturally, he said yes. I also 
asked the nominee if he would commit to ensuring the faithful and 
timely implementation of the 2016 FOIA amendments. He said: ``Yes, we 
will work hard on that.'' I also think that the entire FOIA process 
would be improved if Americans didn't have to fight tooth and nail for 
disclosure in the first place. Let me repeat that--fight tooth and nail 
for disclosure. That is why we have a presumption of openness when it 
comes to the Freedom of Information Act.
  Getting the public's information out to the public automatically 
should be a top priority. So I asked Mr. Barr if he would help to 
advocate for the more proactive disclosure of government records. 
Again, he said he would. I appreciate Mr. Barr's assurances. Of course, 
as I have said so many times during these remarks on different issues, 
I expect to hold him true to his word.
  Then, I went to the Foreign Agents Registration Act, or FARA. I asked 
him about the importance of it. My oversight work has highlighted the 
Justice Department's historically lax enforcement of that act. I think 
we had a hearing on it and found out that since 1937 there have been 
fewer than a dozen prosecutions under it. Now, all of a sudden, with 
Russia, Ukraine, and Turkey and a lot of other places, it has come to 
my attention that there are a lot of people who even recently haven't 
registered under it. On the other hand, I will bet people are hastening 
to register very fast.
  Yet the law has some shortcomings. In an age in which we are 
witnessing more foreign government efforts to influence the American 
public and policymakers, we should see more transparency and more 
enforcement against bad actors, not less enforcement. So I asked Mr. 
Barr if he agreed that FARA was an important national security and 
accountability tool, and he said yes.
  I asked Mr. Barr if he would be sure to make FARA enforcement a top 
priority under his leadership. Again, he said he would.
  I also asked Mr. Barr if he would commit to working with me on my 
bill to improve FARA. This bill before Congress is called the 
Disclosing Foreign Influence Act, and it seeks to better ensure 
transparency and accountability. Again, he said yes. Again, Mr. Barr 
can expect that I will hold him to his word.
  I also asked Mr. Barr about his position on antitrust enforcement--
specifically, whether he would ensure that healthcare and prescription 
drug antitrust issues would be a top priority for the Justice 
Department.
  The nominee responded: ``Competition is an important factor in 
containing the costs of healthcare'' and that he would ``work with the 
Antitrust Division to ensure appropriate and effective criminal and 
civil enforcement to protect Americans' interests in low-cost, high-
quality healthcare.'' He stated that if confirmed, antitrust 
enforcement in the healthcare and pharmaceutical sectors ``will remain 
a priority'' for the Justice Department.
  I also expressed to the candidate my concerns about agriculture 
competition. He indicated that enforcing the antitrust laws in the 
agriculture sector will remain a priority.
  The topics I just discussed are just some of the areas that I asked 
Mr. Barr about at the confirmation hearing and in written questions for 
the record, and my Judiciary Committee colleagues questioned Mr. Barr 
at length on a variety of topics. I take Mr. Barr at his word. I don't 
believe he would bow to any kind of pressure, even from the President, 
if he thought there were a problem with the legality, 
constitutionality, or ethics of an issue. He is an excellent nominee--
extremely competent and experienced.
  Mr. Barr previously led the Justice Department and has proven his 
strong leadership abilities. Recall that back in 1991 the Senate 
Judiciary Committee unanimously reported Mr. Barr's nomination to be 
Attorney General under President George H.W. Bush. Can you believe it? 
The Senate confirmed him by a voice vote.
  What has changed after 25 years?
  I don't know, except that there is something some people think is 
wrong if a person by the name of Trump nominates somebody to some 
office. The only difference I can see is that even in the last 25 
years, he has proven himself to be in the private sector what he did so 
well as a public servant. He is a very capable attorney and a straight 
shooter. He is willing to engage in productive discussions with 
Congress. That is a key quality that we want in anybody who runs the 
Justice Department, and I have had enough trouble with the Justice 
Department.
  I hope he will respond to my requests for oversight information more 
than the Democrats and Republicans had who preceded him. He is 
committed to working with me on my oversight requests, and I think my 
colleagues know that that is a responsibility that I take seriously.
  He will uphold the law and the Constitution. Mr. Barr deserves our 
support, and one can tell from my remarks that I am, obviously, proud 
to vote for him.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Perdue). The Senator from Missouri.
  Mr. BLUNT. Mr. President, as the former chairman of the Judiciary 
Committee, the Senator from Iowa, has just pointed out, the Senate will 
soon vote on the nomination of William Barr to serve as Attorney 
General.
  As has also been pointed out, this is, undoubtedly, one of the most 
qualified nominees to come before the Senate in his having already held 
the same position under President George H.W. Bush. He has also served 
as an intelligence analyst at the CIA, as an Assistant Attorney General 
in the Department of Justice's Office of Legal Counsel, and as Deputy 
Attorney General before he served as Attorney General.
  His confirmation hearing lasted more than 12 hours, during which time 
he and other witnesses answered hundreds of questions on a wide variety 
of issues he might confront as Attorney General. He was straightforward 
and forthcoming. He earned high praise even from the ranking Democrat 
on that committee--our colleague, Senator Feinstein from California--
who said:

       He's obviously very smart. He was Attorney General before. 
     . . . No one can say he isn't qualified. I was thinking last 
     night, obviously Mr. Barr is qualified. He is bright. He is 
     capable.

  She could have said more, but one of the things she said after that 
is, ``I won't be voting for him.''
  This is an important job for the American people. There are a lot of 
jobs out there to be filled. It is hard to argue that any of them are 
more important than this one, but it is also hard to argue that there 
is not something wrong with a process where that is the comment that 
could be made, followed not too long after that by: I won't be voting 
for him.
  Senator Grassley pointed out that the last time Bill Barr was 
confirmed to be Attorney General, it was by voice vote. It seems as if 
that must have been a long time ago. It hasn't been that long ago; it 
is just the way the Senate used to work. That is why the Rules 
Committee that I chair voted out a Senate resolution earlier today 
dealing with this issue. This should not be the problem that it is. It 
shouldn't be an issue, but, frankly, the nomination process is broken.
  In every election in this country, one thing has been certain: At 
least one party will not be happy with the result. I certainly 
understand why our Democratic colleagues weren't happy with the results 
of the 2016 election. There have been elections I have not been happy 
about and some that I have been happier about than others even when I 
was happy. This is a process that makes it easy not to be pleased with 
what voters decide to do, but that doesn't give you the right to stand 
in the way of what voters try to do, and that is exactly what our 
friends on the other side of the aisle have done.
  Over the past 2 years, we have had unprecedented obstruction when it 
comes to just trying to put a government in place, unprecedented 
obstruction to confirming a President's nominees.

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  During the first Congress President Trump was in office, the previous 
2 years, he submitted 1,136 nominees for jobs across the Federal 
Government. During that same period of time, President Obama submitted 
1,132 nominees.
  By the way, President Trump is sometimes criticized for not getting 
the nominees up here quickly enough. He actually got four more nominees 
up during that period of time than President Obama did, but the Senate 
confirmed 920 of President Obama's nominees during that first 2 years, 
and the Senate only confirmed 714 of President Trump's nominees--barely 
half for President Trump and about 70 percent, 75 percent for President 
Obama. There is a nearly 200-person difference, but more important, 
maybe, than the difference is the obvious effort for us not to be able 
to get other work done.
  At the end of the last Congress, we returned the largest number of 
nominees from any President since Ronald Reagan. There are really only 
two reasons for that. One is to, frankly, stall the confirmation 
process and make it difficult for the President to do the job of being 
President. If you don't get the people to help you do the job you are 
elected to do, you can't do the job as effectively as you would 
otherwise.
  We just had a government shutdown, which I think all of us were 
disappointed by. That is bad policy. We don't want to repeat it again. 
We didn't want to repeat it that time. But we have a partial shutdown 
of many of these Agencies and parts of the government every single day 
because we don't have the people necessary to put the rules in place.
  There was a lot of discussion during the government shutdown about 
farmers who weren't able to get the loan guarantees they needed because 
the office was closed. Well, to some extent, it is the same way when 
the door is open but the people aren't there, when the door is open but 
the rules for the new farm bill haven't been issued, and when the door 
is open but the trade regulations that need to be made for the tax bill 
aren't out there.
  The other reason, by the way, the second reason, is just to use up 
floor time. There are only so many things we can do here on the Senate 
floor. The majority leader is fond of saying that the most precious 
commodity in the Senate is floor time. If we are required to drag out 
this process, as the minority has insisted we do for the last 2 years, 
things don't happen otherwise.
  During the first 2 years of the Trump administration, there were 128 
cloture votes right here--128 cloture votes. That is where a Democrat--
usually the minority leader--insists that we are going to have to get a 
majority of votes to even have the debate on a candidate. Once you file 
that, that takes a day before you can even begin to have the debate, 
and then the debate is 30 hours. So half a week is gone before the week 
starts just trying to confirm one person for one thing. That could be 
as important as a Supreme Court Justice, or it could be the lowest 
level of confirmation in any of the Agencies of government.
  By the way, those are the people who haven't been put in place 
because obviously lifetime judges matter, and both parties would 
prioritize that.
  There have been 128 cloture votes. In the first 2 years of the past 
three Presidents, there were cloture votes a total of 24 times--24 
times. That is an average of 8 compared to 128. There is a lot of 
difference between 8 and 128.
  Because the tradition of the Senate--as a matter of fact, I think if 
President Bush were on here, President George H. W. Bush--that number 
was zero. No time. And that was much more traditional, up until that 
time, than now.
  When President Reagan was President, once a nominee got out of 
committee, it was an average of 5 days before that nominee had a vote 
here on the Senate floor. It was normally the same kind of voice vote 
that Senator Grassley mentioned that Bill Barr had the last time. The 
average was 5 days. With President Trump, it was 55 days before a 
nominee could get a vote once they got out of committee.
  Remember, if you have agreed to serve in one of these jobs, you have 
given all of your financial information, you have given all of your 
personal information, and you have been investigated through and 
through. You have appeared before a committee, and they have asked you 
every question they could think of to ask you. They have voted you out 
of that committee. And then 24 people, at the end of last year, were 
sent back to the White House, at the end of that conference--I think it 
was over 24 people, over two dozen people--who had been waiting 1 year 
to become maybe the Deputy Assistant Secretary of Interior.
  This will not work. This is not how our system is supposed to work, 
and we need to move forward. And it is not like when this happens--when 
these 128 cloture votes happen--there is a huge debate. There are 30 
hours, plus the intervening day, but that doesn't mean there is any big 
debate. In fact, usually there is almost no debate at all on these 
nominees. When the nominees were voted on, 48 percent of the nominees 
got over 60 votes and 37 percent of the nominees got over 70 votes. So 
clearly this is not about holding back somebody who could be confirmed; 
it is about using up time that should be used for other things.
  There are two jobs in the Senate. One of them is the personnel 
business. One of them is confirming people the President nominates. But 
the other is the legislating business. The other is the funding the 
government business. The other is the talking about foreign policy 
business. The other is talking about the economy and trade and taxes. 
Every hour we spend on this is an hour we can't spend on that.
  The resolution we passed out today was one I introduced with my 
colleague from Oklahoma, Senator Lankford, who has been working on this 
issue for 2 years now, and others of us have as well. We introduced 
this bill to cut the amount of time back to what had been a temporary 
standing order when Republicans were in the minority, and we agreed to 
this temporary standing order. The Democrats were in the majority. 
There was a Democrat in the White House. We agreed to essentially this 
same framework: 2 hours for most nominees, 30 hours for circuit judges 
and Supreme Court Justices and Cabinet officers. Seventy-eight Senators 
voted for that temporary order.
  Usually when you do you a temporary order, it is to see if it works. 
Well, it worked, but we didn't do it again. So we are now saying, let's 
make that temporary order a permanent part of the way the Senate 
approaches this part of its job. We are moving in that direction. We 
had a debate this morning in committee. The time we are spending on the 
floor--if there is a nominee who needs 30 hours, they are almost 
certainly going to be in that category that gets 30 hours. If there is 
a nominee who would be in the 2-hour category, they are going to have 
been through committee, they are going to have been thoroughly vetted, 
and the committee will have decided they should be reported out. We 
need to get back to where 5 days after that, the Senate lets this 
person go on to fill a job that is, in all likelihood, not going to 
last beyond one administration and maybe not even that.
  It won't be long before nobody is willing to sign up if a year later, 
after you have put your life on hold, you find out that the Senate 
somehow can't get to the job you have agreed to serve on because we 
have to take time that the Senate never took before.
  I hope my colleagues on both sides of the aisle look at that standing 
order that could change our rules in a way that allows people who are 
willing to serve to be thoroughly vetted, thoroughly questioned, and 
then voted on. This can't happen unless they get voted on. Clearly, the 
current process of voting on people is a process that has been abused.
  While the Senate is a place that recognizes the rights of the 
minority, those rights have only been upheld when the minority viewed 
them for what they are--rights of the minority rather than tools of the 
minority to obstruct the elected Government of the United States of 
America and the work of the Senate.
  I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The senior assistant legislative clerk proceeded to call the roll.
  Ms. MURKOWSKI. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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