On January 15 the Senate Judiciary Committee will begin hearings on President Donald Trump’s nomination of William P. Barr to serve as attorney general. When the scheduled two-day hearings begin, Senate Democrats will likely pounce on statements Barr made about Special Counsel Robert Mueller.
In a memo Barr wrote to Deputy Attorney General Rod Rosenstein last year, he questioned the propriety of an obstruction of justice investigation into Trump’s firing of former FBI director James Comey, calling it “fatally misconceived.” Barr also stated that “Mueller should not be permitted to ‘demand’ in-person question[ing] of the president.”
Sen. Chuck Schumer points to this “unsolicited memo” to argue Trump should withdraw Barr’s nomination. Democrats have nothing to fear, however, in Barr, just as they had nothing to worry about when Trump appointed Matthew Whitaker to serve as acting attorney general in November. For all the vapor-fanning hysterics surrounding Whitaker’s appointment, the Mueller investigation has continued unabated.
That was by design: When Rosenstein appointed Mueller in May 2017, the breadth of the authority Rosenstein secretly bestowed on the special counsel assured a lengthy and sprawling probe that would be impossible to cabin.
Moreover, most Senate Republicans share their Democratic colleagues’ sentiment that the Mueller investigation must continue undisturbed. Just last week, the Hill reported plans by senators, including Republican Lindsey Graham, to reintroduce legislation designed to protect the special counsel.
On Wednesday, Graham also discussed his conversations with Barr with the new judiciary committee chair, noting that there was “absolutely no indication [Barr] was going to tell Bob Mueller what to do or how to do it.”
Graham reportedly said: “I asked Mr. Barr directly, ‘Do you think Mr. Mueller is on a witch hunt?’ He said no. ‘Do you think he would be fair to the president and the country as a whole?’ He said yes. ‘And do you see any reason for Mr. Mueller’s investigation to be stopped?’ He said no. ‘Do you see any reason for a termination based on cause?’ He said no. ‘Are you committed to making sure Mr. Mueller can finish his job?’ Yes.’”
Graham added that Barr promised, if confirmed as attorney general, he would “err on the side of transparency” once Mueller released his special counsel report.
Notwithstanding this reality, the judiciary committee members will likely use their time questioning Barr to grandstand about the sanctity of the special counsel. Yet these same senators—on both sides of the aisle—will likely ignore the more significant threat to equal justice under the law evidenced by the Department of Justice’s startling inaction about crimes that may lay at the door of Trump critics and Democrats.
For instance, the special counsel obtained indictments against several individuals connected with the Trump campaign for process crimes, yet the DOJ appears indifferent to similar—or more serious—offenses likely committed by those unconnected to Trump.
Both Michael Flynn, Trump’s former national security advisor, and George Papadopoulos, a volunteer foreign policy advisor to the Trump campaign, were charged with making false statements to the FBI. In contrast, we have yet to see former DOJ deputy attorney general Andrew McCabe indicted on similar charges, even though the DOJ’s inspector general’s report strongly suggests such charges would be warranted.
Likewise, nothing has come of former Judiciary Committee Chair Chuck Grassley’s criminal referral to the DOJ of dossier author Christopher Steele. That referral highlighted evidence indicating Steele lied to the FBI concerning his leaks of the dossier to various media outlets.
The public facts also suggest Steele engaged in unregistered lobbying, a crime for which Mueller indicted Trump’s former campaign chair, Paul Manafort, yet the DOJ has taken no action against the former British spy. Nor does it appear the DOJ will do anything about Comey’s apparent leaking of classified information—also a federal crime.
Then there’s former Trump lawyer Michael Cohen, another target of the Mueller team. Among other things, Cohen pleaded guilty to campaign-finance violations related to payments he made to film prostitute Stormy Daniels—charges critics rightly call non-crimes. Squeezing Cohen on supposed campaign-finance violations is even more appalling when compared to the government’s inaction in the face of evidence that the Clinton campaign conspired with the Democratic National Committee to launder $84 million in violation of campaign-finance laws.
The DOJ also seems indifferent to the crimes committed during the judiciary committee’s hearings on Brett Kavanaugh’s nomination to the Supreme Court. I’m not talking about Christine Blasey Ford’s false testimony. I mean the criminal referrals of lawyer Michael Avenatti and his client, Kavanaugh accuser Julie Swetnick, whom the public pretty much uniformly agrees lied in statements to the judiciary committee. In his referral, Grassley laid out all of the evidence necessary for the DOJ to obtain a quick indictment of the duo, but nothing.
Likewise, the DOJ has yet to charge a man who accused Kavanaugh and his high-school pal, Mark Judge, of raping a woman in Rhode Island in the 1980s. The man who made the accusation later recanted, but to date no charges have been filed.
Why not? And why the disparate treatment between those connected to Trump and those at odds with the president? Maybe it is only a matter of time, and maybe John Huber—the U.S. attorney tapped by former attorney general Jeff Sessions to investigate the FBI and DOJ’s handling of the probe into Hillary Clinton and the Trump campaign—is keeping his powder dry.
But right now, it appears the answer is politics, pure and simple. The judiciary committee should ensure that is not the case, or that it will no longer be the case under Barr’s leadership. So when Barr appears before the judiciary committee tomorrow, the senators should press the attorney-general hopeful on these points.
Barr should likewise be asked to provide the same pledge of transparency for the matters senators referred to the DOJ, just as he signaled would govern his handling of the special counsel investigation. And if Barr’s responses indicate he does not take these inquiries seriously, then he doesn’t deserve to serve as attorney general.