[Congressional Record Volume 166, Number 216 (Saturday, December 19, 2020)]
[Senate]
[Pages S7835-S7837]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                         Department of Justice

  Now, Madam President, the hour of 1 o'clock has arrived. I will claim 
my time, and I am going to speak about the Department of Justice and 
the Office of the Attorney General.
  William Barr's second tenure as Attorney General is coming to an end. 
At this time, it is important for the Senate to reflect upon his legacy 
and upon the challenges now facing the Department of Justice.
  As we all know, the Office of Attorney General fills a unique role 
within our system of government. It was created by the Judiciary Act of 
1789, and in its creation, it was obvious the Attorney General is not a 
traditional member of the President's Cabinet.
  Supreme Court Justice James Iredell observed in 1792 that the 
position ``is not called the Attorney General of the President, but 
Attorney General of the United States.'' This is because an Attorney 
General's client is not the President; the Attorney General's client is 
the American people--all of us, all of us.
  An Attorney General's duty is not to defend the President but to 
uphold the rule of law and do so with integrity and independence.
  Now, we know that President Trump has a very different view. He views 
the Office of Attorney General as an extension of his political power 
to be wielded like a weapon to further his agenda. He believes it 
exists to benefit him personally, to target his opponents, and to 
protect him and his friends. His view stands in stark contrast to 
everything the Attorney General is supposed to represent.
  It came as no surprise, then, that during his nomination hearing, Mr. 
Barr was questioned about which type of Attorney General he would be--
the President's lawyer or an impartial pursuer of justice.
  Mr. Barr was adamant in that hearing that while he may sympathize 
with the President's policy choices, his role as a policy advisor would 
be distinct from that of the Nation's chief law enforcement officer. If 
confirmed, he assured all of us, his job would not be to protect the 
President.
  Thirty years ago, I voted for Mr. Barr to serve as Attorney General 
to then-President George H. W. Bush. I had my disagreements with him at 
that time--in fact, several. But I voted for him.
  When I heard in late 2018 that President Trump intended to nominate 
him for a second tenure as Attorney General, frankly, I was hopeful. 
After the short, yet disastrous, tenure of a totally unqualified Acting 
Attorney General who eagerly bent to the will of President Trump, I was 
hopeful that Mr. Barr would restore some independence to the office.
  But after careful consideration and listening to his testimony at his 
nomination hearing, I voted no on his confirmation.
  Mr. Barr has long-held, expansive views of Executive power. And prior 
to his nomination--this is prior to his nomination--he shared those 
views with the President in a bizarre, 19-page memorandum, making the 
case that a President can obstruct a criminal investigation with near 
impunity. It was clear to me that Mr. Barr's views would be weaponized 
by President Trump--a man who derides any limits on his authority. The 
President, I said at that time, needs a much tighter leash.
  By any measure, the last 2 years have been worse than I feared. Time 
and again, Attorney General Barr has acted in the best interests of 
Donald Trump, not in the best interests of the country. He has 
intervened and he has overruled career prosecutors only in cases to 
benefit the President and his friends. He has departed from Department 
norms. He has misrepresented the Department's work. He has eroded 
public trust in the Department as a result. I will speak to just a 
handful of examples.
  In late 2019, a jury, with overwhelming evidence, convicted former 
Trump campaign adviser Roger Stone for obstructing a bipartisan 
congressional investigation and lying under oath and witness tampering. 
The evidence was overwhelming. The jury convicted him. So, consistent 
with sentencing guidelines that apply to everybody, prosecutors 
recommended a 7- to 9-year sentence.

  President Trump immediately took to Twitter to criticize the 
prosecution, and just hours later--after he had tweeted his 
objections--Attorney General Barr intervened. He overruled the 
prosecutors. He disregarded the sentencing guidelines that are supposed 
to apply to anybody.
  What happened next reminded me of something Judge Michael Mukasey 
said when he testified in support of Mr. Barr at his confirmation 
hearing. Judge Mukasey said if Mr. Barr ever failed to serve with 
independence, he would ``find a mound of resignations on his desk.'' 
Well, in this instance, all four career prosecutors withdrew from the 
case. In fact, two resigned from the Justice Department altogether. And 
at sentencing, Judge Amy Berman Jackson took the rare step of defending 
both the career prosecutors and their sentencing recommendation. She 
stated that it was ``true to the record'' and ``in accordance with law 
and [Department of Justice] policy.''
  Attorney General Barr's intervention left me with just one question: 
Could anyone, other than the President's close friend--a man who, 
according to Judge Jackson, broke the law and ``was prosecuted for 
covering up for the President''--receive such leniency from the 
Attorney General? I think the answer is pretty obvious. If you are a

[[Page S7836]]

friend of the President, the Attorney General is going to try to cover 
for you.
  Then there is former National Security Advisor Michael Flynn. The 
Attorney General's intervention in the Flynn case went a step further. 
Despite the fact that Flynn had twice pled guilty--pled guilty--to 
lying to the FBI, Mr. Barr's Justice Department moved to dismiss the 
case altogether, prompting the lead prosecutors to withdraw.
  The sentencing judge, Emmet Sullivan, ordered a review of the motion 
to drop the charges. He appointed a former Federal judge, John Gleeson, 
to serve as an amicus curiae. Well, Judge Gleeson didn't mince words. 
He advised the court that Mr. Barr's grounds for seeking dismissal were 
``conclusively disproven'' and amounted to an ``unconvincing effort to 
disguise as legitimate a decision to dismiss that is based solely on 
the fact that Flynn is a political ally of President Trump.'' Not long 
afterward, President Trump fully pardoned Mr. Flynn from his conviction 
of the crime of lying.
  Now, many of Attorney General Barr's departures from Department norms 
originated with his now-infamous handling of the special counsel's 
report on Russian interference. The Mueller report amounted to a 448-
page presentment of misconduct that reached the highest levels of the 
Trump campaign and administration. But the Attorney General's summary 
of the report--in fact, the only information he allowed the public to 
seek for weeks--left Americans with the opposite impression: The report 
effectively exonerated the President, even though it did not.
  Special Counsel Mueller wrote to the Attorney General at the time, 
concerned that the Attorney General failed to capture his conclusion 
and created confusion that undermined public confidence in the 
investigation.
  Indeed, that appears to have been the Attorney General's intent, and 
many others agreed. Federal Judge Reggie Walton wrote that the 
inconsistencies between his statements and the report ``cause the Court 
to seriously question whether Attorney General Barr made a calculated 
attempt to influence public discourse about the Mueller Report in favor 
of President Trump despite certain findings in the redacted version of 
the Mueller Report to the contrary.'' This remarkable statement from a 
sitting Federal judge about a sitting Attorney General is about as 
damning as it gets.
  Soon after, the Attorney General began falsely claiming that the 
investigation was started ``without any basis'' and was politically 
motivated. That is despite the fact that an exhaustive inspector 
general's report refuted both of his claims.
  The Attorney General was not content with simply mischaracterizing 
the Russia investigation. He launched counterinvestigations into the 
Justice Department's own investigators. He personally traveled to Italy 
in a desperate attempt to dig up exculpatory evidence. Ignoring 
Department policies, he regularly commented on the ongoing 
investigation led by U.S. Attorney John Durham. And documents from the 
Durham investigation were even shared with the White House, according 
to the President's Chief of Staff. Then Durham's top aide abruptly 
resigned, reportedly due to pressure to release their findings before 
the election. In other words, they just broke all procedures because 
they wanted to help Donald Trump.
  On top of that, the Attorney General did all this while he was 
ignoring a subpoena from the House of Representatives to obtain an 
unredacted copy of the Mueller report.
  In fact, Attorney General Barr has evaded transparency. He has 
impeded once-standard congressional oversight, no matter the topic. He 
refused to testify before the House. He was held in contempt for 
refusing to respond to House subpoenas related to the administration's 
pretextual justification for adding a citizenship question to the 
census. He supported efforts to cover up President Trump's Ukraine 
scandal, for which the President was impeached. He supported the 
unprecedented purging of multiple independent inspectors general, and 
he rebuffed congressional oversight at every turn.

  Now, this may not bother some of my friends on the other side of the 
aisle now, but the political winds have already shifted, and it harms 
all of us when congressional prerogatives are so blatantly disregarded.
  While Attorney General Barr has defended President Trump at seemingly 
every turn, he went a step further in September by attempting to 
literally defend the President's personal interests. The Attorney 
General moved to intervene and dismiss a civil defamation case that 
alleged that President Trump lied about a decades-old sexual assault. A 
Federal court flatly rejected the attempt.
  Attorney General Barr's interventions on behalf of the President 
extended beyond legal issues to PR issues as well. At the height of a 
national reckoning on issues of racial injustice, the White House 
stated it was the Attorney General who ordered the clearing of peaceful 
protesters in Lafayette Square. Barr denied he gave the order, but he 
did not deny that he encouraged it. Peaceful protesters were cleared 
with rubber bullets and tear gas so that the President could stage a 
photo op in front of St. John's Church. It was a grotesque display of 
unnecessary force.
  Most recently, the Attorney General's obedience to the President 
resulted in him falsely claiming that mail-in ballots, which have been 
used since the Civil War and relied upon by millions of Americans 
during this pandemic, ``opened the floodgates'' to widespread fraud.
  Voting experts described his claims as farcical. In echoing the 
President's conspiracy theories, the Attorney General revealed how 
little he knew about basic election laws and the safeguards in place. 
His apparent intent was not to inform the public but to sow doubt among 
the public in the integrity of their vote.
  Attorney General Barr then rewrote the Department's policy on 
election-related investigations, prompting the head of the Department's 
election crimes branch to resign his post in protest.
  For each of these actions, Attorney General Barr was publicly 
badgered by President Trump to act--publicly badgered by President 
Trump to act. Now, it may be that Attorney General Barr believes he 
withstood the pressure. There may be some lines he declined to cross, 
such as fabricating evidence of widespread voter fraud, but we can 
never excuse all the lines he did cross.
  Critically, when a President pressures an Attorney General to serve 
their personal interests, it is all the more incumbent on the Nation's 
top law enforcement officer to avoid any appearance of impropriety and 
refuse the request--not to meet him halfway.
  Now, it brings me no joy to say this. I have known Attorney General 
Barr for a long time, but he has failed in his duty to impartially and 
equally uphold the rule of law. The Attorney General represents the 
United States and all of its 330 million Americans. Too often, the 
Attorney General felt he was going to only represent the interests of 
just one person.
  By serving as a yes-man when the law and the country and the 
Department needed him to say no, Attorney General Barr has damaged the 
hallowed office that he has temporarily occupied.
  Now the hard work to repair the damage has to begin. In November, the 
country voted, the American people voted, to take the country in a 
different direction.
  I served alongside President-Elect Biden for decades in the Senate 
and on the Judiciary Committee. He understands the unique role of the 
Justice Department. I am convinced that President-Elect Biden would 
never rely on the Justice Department to do his personal bidding the way 
President Trump has. No matter whom the President-elect chooses as the 
next Attorney General, I have no doubt that he or she will operate with 
the utmost integrity, guided by the law and the facts.
  So as we begin to close the book on this dark chapter in our Nation's 
history, with a pandemic that has left more than 310,000 Americans 
dead, with the outgoing President's relentless attacks on the 
foundations of our democracy, I am hopeful that brighter days are 
ahead. I am confident we will again have government leaders focused on 
following the evidence and adhering to the rule of law, pursuing equal 
justice, and acting in the best interests of the Nation--all of us, not 
just of one person.

[[Page S7837]]

  The thousands of hard-working, dedicated men and women of the Justice 
Department deserve at least this much, as do all Americans. Indeed, the 
founding principles and traditions of the 230-year-old Office of the 
Attorney General demand nothing less.
  If there is nobody else seeking the floor right at the moment, let me 
just mention a personal observation. As a young law student at 
Georgetown, I was invited, along with three or four other law students 
from different leading law schools, to meet with the then-Attorney 
General. We were probably diverse in our opinions, but we were asked to 
be there because of our academic standing in our classes.
  I remember sitting there with the Attorney General like it was 
yesterday. He talked about the meaning of the Department of Justice and 
how we have to represent the whole country, how it has to stand for the 
law.
  One of us--and it may have been the young law student from Vermont--
asked the question: What if you had somebody who had broken the law but 
they were close to the President? What would you do?
  He said: If they had broken the law, we would prosecute them. He 
said: I might not be welcome at family gatherings for a while 
thereafter. He said that because that Attorney General was Robert 
Kennedy. His brother was the President. And actually that happened--a 
man very close and important to his brother's election as President. 
The matter was brought to Attorney General Kennedy, recommending his 
prosecution, and of course he was prosecuted. That is what an Attorney 
General should be.
  I declined his offer to join the Department of Justice because my 
wife, myself, and I wanted to go back home to Vermont, and I thought 
probably I would never be involved with law enforcement after that.
  A few years later, I was with the State's attorney of a county that 
had about a quarter of our population, and I was quickly faced with 
prosecuting leading Democrats and leading Republicans in our State.
  I remembered what Attorney General Kennedy said. A prosecutor has to 
represent everybody. A prosecutor has to uphold the law. And I 
prosecuted those people. I have never regretted that.
  I have always been supportive of Attorneys General who uphold the 
law--uphold the law because they are there to represent all Americans.
  As long as I am in the Senate, I will always speak out when an 
Attorney General does not do the job they are supposed to do and when 
the Attorney General does not apply the law equally and fairly to all 
people--applying the law, not politics.
  I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. BROWN. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.