Democrats Face No-Win Scenario On Attorney General Nomination

Kevin Daley | Supreme Court Reporter
  • Democrats eager to protect the Mueller probe should be pleased at the prospect of Acting Attorney General Matthew Whitaker’s pending departure.
  • But his would-be successor, William Barr, is a gifted conservative lawyer who proved a scourge to the Iran-Contra special prosecutor in the early 1990s.
  • Democrats must now decide whether to delay Barr’s confirmation or place it on a glide path, and both options are unappealing. 

President Donald Trump’s selection of William Barr for attorney general has caught Democrats in the horns of a dilemma.

Without a Senate majority, Democrats have little chance of stopping Barr’s confirmation, but with ordinary obstruction mechanisms, a month-long delay is conceivable — the question is whether Democrats ought to do so, and there’s no easy answer from their perspective.

To hear many Democrats tell it, Acting Attorney General Matthew Whitaker is an existential threat to special counsel Robert Mueller, a Trump loyalist who would happily do the bloody work of ending the Russia probe. Since Democrats are committed to protecting the investigation’s integrity, ushering Whitaker out would seem an urgent priority.

Yet Barr’s nomination presents a complicated proposition for Democrats: On one hand, Whitaker’s departure would be beneficial to Mueller, since Barr, a former colleague of Mueller, is reputedly a person who respects the Department of Justice’s traditions and protocols. On the other hand, Barr is a talented, capable lawyer with a professed hostility to roving prosecutors.

What’s more, he is a dogmatic conservative.

“In a nutshell, Barr has, like Sessions, supported aggressive anti-immigrant policies, opposed criminal justice reform, lauded intrusive surveillance of Americans, said Roe v. Wade should be overturned, and supported denying civil rights protections to transgender individuals,” David Cole of the American Civil Liberties Union (ACLU) wrote after Barr’s nomination on Dec. 7.

“[U]nlike Sessions, he actually knows how the department works, having been deputy attorney general and attorney general from 1990-93,” Cole continued.

During his first stint at the Justice Department, Barr proved a stalwart defender of presidential power. For example, the ACLU flagged a memo Barr produced in 1989 identifying routine congressional intrusions on executive authority. He specifically attacked limits on the president’s power to remove executive branch officers, and suggested that restrictions on the termination power identified by the Supreme Court in a foundational 1988 decision were limited to the facts of that case.

“Because the power to remove is the power to control, restrictions on the removal power strike at the heart of the president’s power to direct the executive branch and perform his constitutional duties,” Barr wrote.

Barr has not said whether he believes Trump has the authority to remove Mueller without cause. Though Barr and Mueller once worked closely together — Mueller was the assistant attorney general for the criminal division when Barr was running the Justice Department — Barr has publicly chided the special counsel’s conduct. In particular, he suggested that the partisan composition of Mueller’s staff, which is overwhelmingly Democratic, is a problem.

“I would have liked to see him have more balance on this group,” Barr told The Washington Post in July 2017.

Robert Mueller is sworn in to testify before the Senate Judiciary Committee during a hearing on Capitol Hill. September 17, 2008. REUTERS/Molly Riley

Robert Mueller is sworn in to testify before the Senate Judiciary Committee during a hearing on Capitol Hill on Sept. 17, 2008. REUTERS/Molly Riley

Nor is Barr hesitant about recommending politically fraught pardons. In the waning days of George H.W. Bush’s presidency, Barr engineered the pardons of six individuals implicated in the Iran-Contra affair, which had been subject to a six-year investigation by special prosecutor Lawrence Walsh.

Among those Bush 41 pardoned at Barr’s urging were former Secretary of Defense Caspar Weinberger and former national security adviser Robert McFarlane. Much like the Russia inquiry, Iran-Contra bore directly on the presidency since Bush was vice president during the commission of the scandal and his connection to the attendant crimes — while never definitively established — seemed plausible.

Though the clemencies appeared self-serving, Barr was willing to lend the Justice Department’s weight to Bush’s decision. Whether he would do so again for the likes of former Trump campaign manager Paul Manafort and former national security adviser Michael Flynn is an open question, but his past service proves he is not lacking in tenacity.

Even a decade after leaving office, Barr was strident in his criticism of Walsh’s investigation. (RELATED: Nadler Floats Impeachment, Says New Mueller Revelations Could Justify Removing Trump)

“He was certainly a headhunter and had completely lost perspective, and was out there flailing about on Iran-Contra with a lot of headhunters working for him,” Barr said at the University of Virginia in 2001. “The whole tenor of the administration was affected by that.”

“I don’t know what to say in polite company,” he said of Walsh elsewhere in his remarks.

All told, Whitaker is a relative newcomer to Justice Department leadership, and his ambitions for the special counsel’s office are unknown. Barr is a seasoned operator who dealt aggressively with investigators he feels are crossing lines they should not. Since neither man is optimal for Democrats, Trump has forced Democrats into a no-win scenario.

Acting Attorney General Matthew Whitaker stands during a presentation of the colors at the Annual Veterans Appreciation Day Ceremony at the Justice Department in Washington. REUTERS/Yuri Gripas

Acting Attorney General Matthew Whitaker stands during a presentation of the colors at the Annual Veterans Appreciation Day Ceremony at the Justice Department in Washington. REUTERS/Yuri Gripas

Barr’s appointment could redound to the benefit of Democrats in at least one respect: His confirmation will inevitably be covered and processed with a view towards the Russia inquiry. The Mueller probe needs no assistance in maintaining press attention, but the Barr hearings provide a firm news hook coverage of the investigation often lacks. That this should happen as the president’s genuine legal exposure comes into sharp relief is by itself a win for Democrats, albeit a modest one.

Additionally, Barr’s policy preferences will inflame anger at the level of the liberal grassroots, though the extent to which partisans should be mobilized in the service of a futile effort is a debatable question.

Confirmation hearings before the Senate Judiciary Committee are expected in January.

 

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