He wants to rein in special counsel Robert Mueller. He wants to investigate the president’s political opponents. He attacks congressional oversight of the White House.
Those are the positions that made Matthew Whitaker a lightning rod as President Trump’s handpicked acting attorney general.
But don’t let the elite education, establishment embrace, and history in former President George H.W. Bush’s Justice Department blind you: Every single one of those positions also belong to the president’s new handpicked choice to be permanent attorney general, William Barr. In fact, given Trump’s disdain for all things establishment, I presume it’s the only reason Trump selected Barr: He finally found a Mueller opponent in establishment clothing, a man handpicked to politicize the Justice Department at a time when the rule of law is already threatened.
If you think Whitaker’s comments against the Mueller investigation were problematic, then you should be terrified of Barr. Barr publicly prejudged the Mueller investigation and downplayed evidence that Trump obstructed justice. He advocated for investigating the president’s political opponents and said the president can order the Justice Department to investigate anyone. With the House set to reassume strong oversight of the executive branch in January, it’s particularly concerning that Barr argued the president can limit the ability of Congress to exercise its constitutional duties.
Senators have a critical advise and consent role in the upcoming confirmation process. When Barr testifies before the Judiciary Committee, senators must get commitments from him to allow Mueller to complete the investigation unimpeded and commit to making Mueller’s report public.
Former President Richard Nixon’s “Saturday Night Massacre” proved a public commitment can have far greater weight than mere words. When Nixon ordered his Attorney General Elliott Richardson to fire the Watergate special prosecutor, Richardson refused to carry out the order specifically because he had made commitments to the Senate during his confirmation process to maintain the independence of the special prosecutor. “At many points throughout the nomination hearings, I reaffirmed my intention to assure the independence of the special prosecutor,” Richardson wrote to Nixon. “I trust that you understand that I could not in the light of these firm and repeated commitments carry out your direction that this be done. In the circumstances, therefore, I feel that I have no choice but to resign.”
Senators have repeatedly voiced support for protecting Mueller’s ability to complete his investigation. Sen. Lindsey Graham, R-S.C., Trump’s strongest ally in Washington and the incoming chairman of the Judiciary Committee, pledged “to the American people, as a Republican, to make sure that Mr. Mueller can continue to do his job without any interference.” Sen. Cory Gardner, R-Colo., said, “It’s important that we have this for transparency and I think it’s important for the president to have this information out there fully, transparently, and accurately.” Sen. Susan Collins, R-Maine, said, “It is imperative that Special Counsel Robert Mueller be allowed to complete his investigation into Russian influence.”
If these senators stand by their desire to protect the Mueller investigation, they need to make sure Barr makes the same commitments that compelled Richardson to refuse Nixon’s orders to fire the special prosecutor. Barr is nominated at a moment when Mueller is under threat from Trump like never before — even as Mueller is proving his ability to prosecute crimes and uncover the truth. Mueller has won eight guilty pleas so far, including five from Trump’s inner circle: his campaign chairman, personal lawyer, national security adviser, deputy campaign manager, and campaign foreign policy adviser.
If Trump decides he wants to fire Mueller, Barr will be the chief law enforcement official who will have to carry out that order.
Barring public commitments from Barr to allow Mueller to complete the investigation and make the final report public, the Senate should vote against confirming him. These commitments might soon be the difference between Trump firing Mueller or allowing the investigation to finish and the final report to see the light of day. The president may have handpicked his man to stop Mueller, but the Senate can handcuff that sabotage effort before it’s allowed to occupy the corner office in the Robert Kennedy building.
Kevin McAlister is the director of Law Works.
