WASHINGTON – The Senate Judiciary Committee holds a confirmation hearing Tuesday on President Donald Trump’s nomination of William Barr to become attorney general.
Barr is a well-respected lawyer who previously served as attorney general for President George H.W. Bush from November 1991 to January 1993.
Because the attorney general oversees special counsel Robert Mueller’s investigation into Russian interference in the 2016 election, Democrats said they will ask Barr about his independence from Trump and his support for the probe.
Barr, an advocate of broad executive power for the president, wrote a 19-page memo in June that criticized a potential obstruction-of-justice investigation against Trump. But he explained to the committee in his opening statement released Monday that Mueller should be allowed to complete his work and that the resulting report should be made public.
The hearing is being held in room 216 of the Hart Senate Office Building, which is the largest space for a Senate hearing. But the line of spectators was a fraction of those for confirmation hearings for Barr’s predecessor, Jeff Sessions, or for former FBI Director James Comey.
USA TODAY will provide live updates here:
In response to questions from Sen. John Cornyn, R-Texas, Barr strongly defended gun rights, though he called for efforts to restrict access to the mentally ill who have been linked to a string of recent mass shootings.
Such restrictions, Barr said, could “stop these massacres.”
Sen. Dianne Feinstein, D-Calif., asked about torture by quoting Barr from a July 18, 2005, panel discussion about techniques for questioning terrorists.
“Under the law of war, absent a treaty, there is nothing wrong with coercive interrogation, applying pain, discomfort and other things to make people talk, so long as it doesn’t cross the line and involve the gratuitous barbarity involved in torture,” Feinstein quoted Barr as saying at that time.
“Do you believe that torture is ever lawful?” Feinstein asked Tuesday.
“No,” Barr replied.
When she asked whether waterboarding is torture, Barr said he would have to look at definitions.
“Right now it is prohibited,” Barr said. “The law has definitively dealt with that. I can’t even remember what the old law was that defined torture. I’d have to look at that.”
Feinstein asked at what point interrogation crosses the line to torture.
“I was saying that torture is gratuitous barbarity,” Barr said. “I don’t think we should ever use torture.”
The first round of questioning ends. Sen. Chuck Grassley, R-Iowa, opens the second round of five minutes of questions for each lawmaker.
Sen. Thom Tillis, R-N.C., asked again about whether Barr would fire Mueller. Barr said even if removing Mueller for cause, he would seriously consider the decision before acting.
Barr noted that no special counsels have been removed since the Nixon administration.
“There hasn’t been a special counsel removed since Archibald Cox and that didn’t work out so well,” Barr said.
In response to Sen. Kamala Harris, D-Calif., Barr said Congress should set national marijuana policy.
“This is breeding disrespect for the law,” Barr said.
In an animated exchange, Barr vowed to study the long-term effects of mass incarceration and its disproportionate impact on African Americans and other minorities.
Referring to the crime plagued early 1990s when he last served as attorney general, Barr described the era as “a different time” than the sustained decline in crime that the nation has largely enjoyed since.
Sen. Cory Booker, D-N.J., called the incarceration policy as “a cancer on the soul of our criminal justice system,” while noting Barr’s past support for higher levels of imprisonment.
“I make a distinction between chronic violent offenders and drug offenders,” Barr said. “Heavy drug penalties have harmed the black community.”
Sen. Cory Booker, D-N.J., asked about Barr’s position on marijuana. Booker said 30 states had legalized marijuana for medical conditions or for personal use.
But last year, then-Attorney General Jeff Sessions rescinded a 2013 memorandum written by Obama-era Deputy Attorney General James Cole, which said the federal prohibition against marijuana shouldn’t be enforced in states where marijuana was legalized. Booker asked whether Barr whether that was the right approach.
“My approach to this would be to not upset settled expectations and reliant interests that have arisen as a result of the Cole memorandum,” Barr said. “Investments have been made. There has been reliance on it. I don’t think it’s appropriate to upset those interests.”
But Barr said the difference between federal and state law must be resolved.
“It’s almost like a backdoor nullification of federal law,” Barr said.
“We either should have a federal law that prohibits marijuana everywhere, which I would support myself because I think it’s a mistake to back off on marijuana,” Barr said. “However, if we want a federal approach, if we want states to have their own laws, then let’s get there and get there the right way.”
Graham called for a 10 minute break. The first round of questions is nearly over.
Sen. Mazie Hirono, D-Hawaii, awoke some in the hearing room gallery when she asked Barr whether he had ever been accused of sexual assault or had been a party to a sexual harassment settlement.
“No,” Barr said.
Sen. Richard Blumenthal, D-Conn., asked a series of questions about whether Barr would edit Mueller’s final report about his investigation or starve the probe of funding.
Barr said Mueller’s report would be confidential, but that Barr would then he would make a public report to Congress.
“I would not permit editing of my report, whatever report I or whoever is attorney general makes,” Barr said. “I will commit to providing as much information as I can consistent with the regulations.”
Blumenthal also asked whether Barr would support subpoenas and indictments that Mueller seeks.
“I will carry out my responsibilities under the regulations,” Barr said, which call for him to overrule Mueller only if the special counsel does something unwarranted. “I am not going to surrender the responsibilities that I have.”
Blumenthal asked whether Barr would reduce resources for Mueller’s probe. Barr said public reports suggest that staffing is already declining.
“I wouldn’t expect that would be a problem,” Barr said of providing resources.
Blumenthal also asked whether Barr would allow Trump to fire U.S. attorneys pursuing cases perhaps associated with the Mueller investigation. Trump’s former personal lawyer, Michael Cohen, pleaded guilty to election charges and conspiracy in the Southern District of New York and is cooperating with Mueller.
Barr said the president can remove any U.S. attorney because they are political appointees. But Barr said he wouldn’t allow a removal to block a case.
“I would not stand by and allow a U.S. attorney to be fired for the purpose of stopping an investigation,” Barr said. “But the president is free to fire officials that he has appointed.”
Because so much attention has been focused on Russia meddling with the 2016 election, Sen. Ben Sasse, R-Neb., asked Barr what he thought about Russian President Vladimir Putin.
“Is Putin a friend or a foe?” Sasse asked. “What are his long-term objectives toward the U.S.?”
Barr said he wasn’t a foreign policy expert.
“I think the Russians are a potent rival of our country,” Barr said. “His foreign policy objectives are usually directly contrary to our goals. I think he wants to weaken the American alliances in Europe. He also wants to become more of a player in the Middle East. A lot of his foreign policy objectives are at odds with ours.”
Barr added that despite the attention paid to Russia, China is a more potent threat.
“I think the primary rival of the United States is China,” Barr said. “Russia is half the size it was when we were when faced them at the peak of the Cold War. Their economy’s long-term prognosis is nowhere near China’s.”
“I’m concerned that the fixation on Russia not obscure the danger from China,” Barr said.
Sen. Christopher Coons, D-Del., referred to the Watergate investigation of former President Richard Nixon more than 40 years ago and asked whether Barr would seek to rescind or change the regulations governing special counsels such as Mueller.
“I think those regulations should stay in place for the duration of this investigation. We can do a post-mortem then,” Barr said. “But I have no reason to think they are not working.”
Nixon directed his attorney general to fire a special counsel investigating him, and the attorney general resigned instead. Coons also asked whether Barr would follow that example if Trump ordered him to fire Mueller without cause.
“I would not carry out that instruction,” Barr said.
Sen. Ted Cruz, R-Texas, asked Barr about his views on religious liberty in a pluralistic society.
Barr said the framers of the Constitution believed that the system only works when people are in a condition to control themselves, and that the control stemmed from religious values.
“Our government is an experiment in how much freedom we can allow the people without tearing ourselves apart,” Barr said. “I believe in the separation of church and state. But I am sometimes concerned that we not use governmental power to suppress the freedoms of traditional religious communities in our country.”
More on Liam, Barr’s grandson:
“I’ll take it as a positive that your grandson has gotten out a pen and a pad of paper to take notes during my questions,” said Sen. Amy Klobuchar, D-Minn. “I’m also impressed by your daughters and that they all chose to go into public service.”
But she asked Barr about his position on the partial government shutdown, which is now the longest in history at nearly four weeks. Trump has insisted in the spending fight with Congress that $5.7 billion be provided for a wall along the southern border.
Barr said he would urge lawmakers and government leaders to reach “a deal” that would include border security and funds for “barriers, walls and slats or anything that makes sense.”
Asked about problems in Iowa caused by illegal immigration and drugs coming into the U.S. along the Mexican border by Sen. Joni Ernst, R-Iowa, Barr provided his support for President Trump’s call for a wall to be built.
“We need a barrier system on the border in order to get control of the border,” he said.
He later said he hoped a deal could be worked out to reopen the government, including the Justice Department, but that agreement needs to improve border security and that requires the use of a wall.
Ernst said she planned to reintroduce legislation named for a Council Bluffs girl, Sarah Root, who was killed by a man who was illegally in the U.S. and was driving drunk. The bill would require Immigration and Customs Enforcement to take custody of illegal immigrants who are accused of crimes resulting in death or serious injury.
She asked Barr how he would restore the rule of law for immigration policy.
“That sounds like a very common-sensical bill and one that I’d be inclined to support,” Barr said.
Immigration problems have grown worse since he was last attorney general in the early 1990s, Barr said. People are abusing the asylum system, he said. We don’t have the facilities to keep them, he said.
“This was a problem 27 years ago and it’s gotten worse,” Barr said.
Democratic Sen. Sheldon Whitehouse asked about the type of people Barr would consider to be his No. 2 as deputy attorney general.
Barr said he would look for someone who is a good manager and a “first-rate lawyer.”
Whitehouse also asked about who, in Barr’s leadership of the Justice Department, would be allowed to communicate with the White House, making reference to controversies surrounding acting Attorney General Matthew Whitaker.
“There is a fair amount of questionable behavior going on” at the justice department, Whitehouse said
The hearing resumed with Sen. Sheldon Whitehouse, D-R.I., asking pointedly whether Barr forced the departure of Deputy Attorney General Rod Rosenstein, who is expected to depart if Barr is confirmed.
“Absolutely not,” Barr said.
Rosenstein appointed Mueller in May 2017 and has overseen the day-to-day investigation since then. Trump gave Barr the authority to choose a deputy and that he has been meeting with Rosenstein, who had anticipated being in his post for two years, Barr said.
“He has no concrete plans,” Barr said. “We’re going to play it by ear.”
The hearing recessed until 12:15 p.m.
Sen. Mike Lee, R-Utah, asked about civil-asset forfeiture, when the government seizures money or property associated with a suspected crime. Lee noted that Supreme Court Justice Clarence Thomas has questioned the constitutionality of the practice.
Barr identified concerns about forfeiture in 1991 as a “speed-trap mentality,” when agencies have incentives to pursue forfeitures to line their own coffers. Lee asked whether Barr was still concerned about a speed-trap mentality.
“I think constant vigilance is necessary because there are incentives there that should be a concern,” Barr said. “I understand that there are people who are concerned about it who have some horror stories.”
Former Attorney General Jeff Sessions put out guidelines for pursuing forfeiture, which Barr said he would review.
“It is a valuable tool for law enforcement,” Barr said. “I want to make sure we strike the right balance.”
Sen. Dick Durbin, D-Ill., asked Barr whether he had changed his earlier views favoring harsh sentences in drug cases.
Barr said he had and pointed out that the local leaders who originally had pushed for tough sentences to fight the crack epidemic were the same ones who now said those sentences had gone too far.
“I think that we should listen to the same people we listened to before,” he said.
He said in the current fight against opioids, there needs to be a focus on the overseas sources of these and other drugs.
He did acknowledge that he maintained a tougher stance longer than others.
“I understand things have changed since 1992,” he said. “I held on a little longer to keeping strong sentences than others.”
Barr’s grandson, Liam, got more career advice, given how many of his relatives had worked in the Justice Department.
“He ought to consider, at least for some balance, being a public defender,” Durbin said.
In wake of the criticism leveled at former Attorney General Jeff Sessions, the FBI and other components of the Justice Department, Durbin asked Barr why he would even consider the job.
“Because I love this department,” the nominee said, describing the agency’s components as the “heartbeat of this country.”
“I’m in a position in life to provide the leadership necessary to protect the independence of this department,” Barr said.
Doesn’t it at least give you pause? Durbin asked, referring to the White House’s treatment of the department.
“It doesn’t give me pause right now,” Barr said. “I have a very good life. I love it. I also want to help in this circumstance. I won’t do anything that I think is wrong. I won’t be bullied into doing anything I think is wrong.”
Sen. John Cornyn, R-Texas, asked how strange it was for FBI Director James Comey to announce his continuing investigation into Democratic nominee Hillary Clinton just before the election without announcing charges.
Barr said he thought it might have stemmed from a potential conflict that then-Attorney General Loretta Lynch had because of a so-called tarmac meeting she had with former President Bill Clinton. But Barr said the usual chain of command called for the deputy attorney general to decide whether to pursue an investigation rather than deferring to the FBI.
“It was weird at the time,” Barr said of Comey’s announcement. “That’s why I thought it was very strange.”
Comey is extremely gifted and performed great public service for the country, but announcing his decision was wrong, Barr said.
“If you are not going to indict, you don’t stand up there and unload negative information,” Barr said.
Democratic Sen. Pat Leahy of Vermont jousted with Barr over a number of matters, including his memo critical of the Mueller investigation.
Barr rejected that characterization of his memo. Barr challenged Leahy on his claim that he had been critical of the probe into whether Russia had interfered in the 2016 U.S. elections.
“How have I criticized the Russia probe?” Barr said. He said he believed that Russia had interfered in the election. “We have to get to the bottom of it.”
During the brief meeting with Trump, Barr said he described the special counsel as “a man of integrity and a straight shooter.”
Later, when pressed again on his commitment to allowing Mueller to finish his work, Barr said it was “unimaginable” that Mueller would engage in any conduct that would cause his removal.
Graham interrupted the rotation between Republican and Democratic senators to ask Barr to explain more about how he met Trump in June 2017.
Barr said David Friedman, the U.S. ambassador to Israel, reached out to him.
Trump “was interested in finding lawyers that could augment the defense team,” Barr said. “Failing that, he wanted to identify Washington lawyers who had broad experience, whose perspective might be useful to the president.”
After Friedman asked him questions, Barr said he wasn’t interested.
“I told him that I didn’t think I could take this on, that I had just taken on a big corporate client who was very important to me,” Barr said. “My wife and I were sort of looking forward to a bit of respite and I didn’t want to stick my head into that meat grinder.”
Friedman asked Barr to meet with Trump anyway the next morning. There, Trump asked about Mueller.
“The Barrs and Muellers were good friends and would be good friends when this was all over,” Barr said he told Trump.
“He asked me for my phone number and I gave it to him and I never heard from him – until recently,” Barr said to laughter in the room. “I didn’t hear from him until later, which was about something different, which was the attorney general position.”
Sen. Chuck Grassley, R-Iowa, asked a series of questions about the False Claims Act and became more emotional as he voiced concerns about whether the administration would answer oversight questions from Congress. He apologized at the end of his turn.
“If I raised my voice to you, I’m not mad at you,” Grassley said.
Graham opened the hearing warning that any protesters would be ushered out by Capitol police. Protests had interrupted previous confirmation hearings for former Attorney General Jeff Sessions and Supreme Court Justice Brett Kavanaugh. But more than an hour into the hearing, there have been no public protests of Barr.
Barr acknowledged that he first spoke with Trump in June 2017 – not about the attorney general’s job, but in connection with the president’s search for a lawyer to represent him. He also said that they had discussed the Mueller investigation with the White House, but not in any “substance.”
Barr said if a member of the president’s family or business as was under investigation and he tried to intervene, that would be a breach of his constitutional obligations.
“If he attempts to intervene in a matter that he has a stake in to protect himself, that should first be looked at as a breach of his constitutional duties.”
He also noted there’s a dispute about what the emoluments clause means.
“I have not personally researched the emoluments clause,” he said.
He said he couldn’t “even tell you what it says” and noted that it is currently the subject of litigation.
Although Barr devoted 19 pages to his memo examining Mueller’s authority in the ongoing Russia investigation, he characterized his conclusions as purely speculative and without the benefit of inside knowledge of the investigation.
“I was writing in the dark,” the nominee said.
Barr defended the memorandum in which he criticized Mueller’s inquiry. He also acknowledged that he first discussed his views before writing the document with Rosenstein at a lunch meeting. Barr recounted Rosenstein’s reaction as “sphinx-like,” adding that Rosenstein said nothing. He later followed up with Rosenstein’s staff and later directed the memo to the deputy attorney general.
When he contacted Rosenstein’s staff, he asked whether he should keep it to one page or could be expansive.
This prompted Graham to interject: “Do you think (President Trump) is a one-pager kind of guy?”
“I suspect he is,” Barr responded.
“Just remember that,” Graham said, drawing chuckles from the audience.
Feinstein later exacted a series of promises from Barr, all directed at protecting Mueller’s inquiry.
Asked if he would provide necessary resources for Mueller to complete the investigation, Barr replied, “Yes.”
Feinstein also asked if he would guard against Mueller’s termination.
Barr said, “Absolutely.”
Barr began his appearance by asking to introduce his family, including his three daughters – all also lawyers who have spent part of their careers at the Justice Department:
- Mary Daly, a longtime federal prosecutor, now works as the department’s director of opioid enforcement and prevention efforts.
- Margaret “Meg” Barr, a former assistant U.S. attorney, now works as counsel for Republican Senator Mike Braun of Indiana.
- Patricia Anne Barr is the top attorney for the House Agriculture Committee.
Barr noted that Mary Daly’s husband is also a DOJ lawyer and introduced their son, Liam, as someone who “will somebody will be in the Department of Justice.”
He said he tried to get his daughter Patricia to go into a different field than law, pushing her to take organic chemistry.
“Needless to say, she’s now a lawyer.”
Graham joked that young Liam might find a different profession than lawyer.
“Think about medical school, Liam,” Graham said.
Graham asked about Barr’s relationship with Mueller. Trump has criticized the special counsel’s investigation as a “witch hunt.”
“I would say we’re good friends,” Barr said of Mueller. “I don’t believe Mr. Mueller would be involved in a witch hunt.”
Barr said he appointed three special counsels. He said former Attorney General Jeff Sessions probably did the right thing in recusing himself from the Russia investigation.
“I think he probably did the right thing in recusing himself,” Barr said.
Graham asked about political messages shared between Peter Strzok and Lisa Page, the FBI employees who disparaged Trump.
“I was shocked when I saw them,” Barr said.
“We’re relying on you to clean this place up,” Graham said.
Graham asked about a New York Times story that said a counterintelligence investigation was opened against Trump in spring 2017 for possible connections with Russia. Graham said he wanted to know if such an investigation was undertaken. Graham asked if Barr had ever heard of this kind of presidential investigation.
“I have never heard of that,” Barr said of such an investigation during his previous tenures with the department.
Questioning begins. Graham said the committee would break about 11:30 a.m.
Barr immediately sought to allay concerns that Mueller’s work could be cut short because of his nomination, strictly following the text of his opening statement first released Monday.
“I believe it is in the best interest of everyone – the President, Congress, and, most importantly, the American people – that this matter be resolved by allowing the special counsel to complete his work. The country needs a credible resolution of these issues. If confirmed, I will not permit partisan politics, personal interests, or any other improper consideration to interfere with this or any other investigation. I will follow the special counsel regulations scrupulously and in good faith, and on my watch, Bob will be allowed to complete his work.”
Barr pledged that the Justice Department would remain independent from any political influence and that Trump had not sought to extract any promises from him.
“We live in time when the country is deeply divided. In the current environment, the American people have to know that there are places in the government where the rule of law – not politics – holds sway, and where they will be treated fairly based solely on the facts and an even-handed application of the law. The Department of Justice must be such a place.”
Barr began his opening statement by noting that, if confirmed, it would be his second time to serving as attorney general.
“Twenty-seven years ago, at my confirmation hearing, I explained that the office of Attorney General is not like any other cabinet post; it is unique and has a critical role to play under our constitutional system,” he said.
“I said then: The Attorney General has a very special obligation, unique obligations. He holds in trust the fair and impartial administration of justice. It is the Attorney General’s responsibility to enforce the law evenhandedly and with integrity. The Attorney General must ensure that the administration of justice – the enforcement of the law – is above and away from politics.”
Former Utah senator Orrin Hatch introduced Barr, ticking through a long list of accomplishments in public office and the private sector.
He said Barr oversaw a number of important issues during his previous stint as attorney general, including the investigation into the bombing of Pan Am Flight 103.
But Hatch said that he believed Barr’s greatest accomplishment during that period was his handling of the takeover of a federal prison in Talladega, Ala.
“Some people would have sought political cover,” Hatch said. “Not Bill.” He described him as cool and calm during the 10-day standoff which ended when he ordered the FBI to storm the prison. The takeover was resolved without a shot being fired and no one was injured. “Bill’s decision-making… saved lives,” Hatch said.
Feinstein immediately staked out Democrats’ concern for Barr’s nomination, seizing on the nominee’ 19-page memorandum directed to the Justice Department earlier this year in which Barr believed that Mueller’s investigation into possible obstruction by Trump was “fatally misconceived.”
Feinstein said the memo represented the nominee’s “sweeping view” of executive authority and threatened to “undermine” Mueller’s inquiry.
Referring to the constant pressure exerted by Trump on DOJ during the past two years, Feinstein posed what she described as the central question facing the panel Tuesday: “Do you have that strength to be independent of the White House?”
Feinstein said she was also worried about Trump directing the Justice Department to investigate his political opponents, such as Democratic presidential nominee Hillary Clinton. Feinstein said the next attorney general must be independent.
“He must have the integrity, the strength and the fortitude to tell the president no, regardless of the consequences,” Feinstein said. “My question will be: Do you have that strength?”
Sen. Dianne Feinstein of California, the ranking Democrat on the committee, said a top priority for her is to allow special counsel Robert Mueller, who is investigating Russian interference in the 2016 election, to complete his probe. She said it is important for Barr to defend the independence of the Justice Department.
“Their job is to serve as the people’s lawyer, not the president’s lawyer,” Feinstein said of department workers.
Graham alluded to his fierce partisan confrontation last year during the confirmation hearing for Supreme Court Justice Brett Kavanaugh. Graham was a vocal critic of Democrats during that period, after previously working in a more collegial way on bipartisan issues such as an immigration overhaul.
“I want us to do better and I’ll be as measured as possible,” Graham said. “The immigration Lindsey will show up. But the other guy is there, too, and I don’t like him any more than you do.”
Graham, who is chairing his first Judiciary hearing. said sentencing reform was an example of significant issues that the committee has addressed. An ethics overhaul, is another issue lawmakers could pursue, he said.
“This committee has the ability within it to do big things long overdue,” he said. “I look forward to solving as many problems as we can.”
Sen. Lindsey Graham, R-S.C., gaveled in the meeting.
“Happy new year,” he said. “Let’s see how this goes.”