January 12, 2019
The Loyal Opposition is one of 18 groups that have sent a letter to Senate leaders urging them to demand commitments from Attorney General nominee William Barr as part of the hearings on his nomination. The commitments are designed to protect special counsel Mueller’s investigation. Barr must commit to allowing the special counsel to follow the facts and complete the investigation, protect the integrity of the Justice Department by preventing President Trump or the White House from interfering in any prosecutorial or investigative decisions, and release the special counsel’s findings to Congress and the American people without the White House withholding any evidence.
The groups write: “Absent public commitments from Mr. Barr to protect the special counsel investigation, we strongly urge each senator to vote against confirming him… [T]he commitments from Mr. Barr might be the difference if President Trump orders him to fire Special Counsel Mueller. Mr. Barr’s confirmation hearing before the Senate Judiciary Committee provides every senator with the opportunity to uphold the integrity of the rule of law and protect Special Counsel Mueller’s investigation.”
Read the complete letter below. January 11, 2019
Majority Leader Mitch McConnell Minority Leader Charles Schumer Judiciary Committee Chairman Lindsey Graham Judiciary Committee Ranking Member Dianne Feinstein U.S. Senate Washington, D.C. 20510
Dear Leader McConnell, Leader Schumer, Chairman Graham, and Ranking Member Feinstein:
We are writing because we believe the Senate’s upcoming consideration of William Barr is the most significant confirmation hearing for an attorney general since President Nixon’s nomination of Elliot Richardson to be Attorney General in 1973. President Trump has repeatedly demonstrated that he wants an attorney general who will undermine the Justice Department’s investigation into his campaign and his administration. The lessons learned during the Nixon Administration provide a roadmap for how the Senate should use Mr. Barr’s nomination hearing to protect Special Counsel Robert Mueller’s investigation and make sure his findings are released to Congress and the American people without interference from the White House.
When Elliot Richardson testified before the Senate Judiciary Committee in 1973, he faced senators who were concerned about President Nixon’s threats to the rule of law. Their solution was to require Richardson to make specific commitments that he would rebuff any effort by President Nixon to undermine the Watergate investigation. Under pressure to stymie the investigation once in office, Richardson’s public assurances constrained him and kept him from privately limiting the prosecutors. Richardson later wrote that he felt compelled to resign rather than fire the special prosecutor in the Saturday Night Massacre because of his commitments to the Senate, writing in his resignation letter, “At many points throughout the nomination hearings, I reaffirmed my intention to assure the independence of the special prosecutor. I trust that you [President Nixon] understand that I could not in the light of these firm and repeated commitments carry out your direction that this be done.”
Mr. Barr’s nomination comes before you at a similar moment in our history. Nearly every action President Trump has taken regarding the attorney general has been a result of his fixation on sabotaging the Special Counsel —his tweets ordering former Attorney General Jeff Sessions to shut down the investigation, firing Sessions after he refused to carry out those orders, illegally going outside the Justice Department’s order of succession by installing Acting Attorney General Matthew Whitaker to oversee the special counsel, and nominating Mr. Barr knowing that he had written a memo offering a legal rationale for the president to undermine the special counsel’s investigation.
Mr. Barr has made troubling statements about how to rein in the special counsel and drafted a memo that evidences bias and prejudgment on the critical question of whether President Trump obstructed justice. In addition to offering a specious legal rationale to undermine the special counsel’s investigation in his unsolicited memo, he also signaled that he would protect President Trump from having to sit for an interview with the special counsel’s office, writing, “Mueller should not be able to demand that the President submit to an interrogation about alleged obstruction.” In a sign of how unconventional and provocative the memo is, Mr. Barr reportedly told President Trump it could be an issue in his confirmation hearing. Mr. Barr separately defended the President’s firing of FBI Director James Comey, ignoring that the reason for Comey’s firing was his refusal to end the investigation into the president’s national security advisor. He then called the investigation into whether President Trump obstructed justice “asinine.”
With this in mind, we fear President Trump chose Mr. Barr with the intention of interfering with and undermining the special counsel’s investigation. Mr. Barr could use his authority to limit the budget, staff, or prosecutorial and investigative decisions of the special counsel in a way that, according to Whitaker, “his investigation grinds to almost a halt.” Mr. Barr could also bury the special counsel’s final report under the current Justice Department regulations.
No one, including the President, is above the law. Allowing any President to handpick the Attorney General for the purpose of disrupting an investigation into him is a direct attack on the rule of law. The Senate has a responsibility to ensure that the Attorney General is loyal to the Constitution, not to the interests of any President. If confirmed, Mr. Barr should step aside from overseeing the special counsel and allow Deputy Attorney General Rod Rosenstein to continue managing the investigation. If Deputy Attorney General Rosenstein leaves the Justice Department as has been reported, a senior career Justice Department official should be responsible for overseeing the special counsel.
During his testimony before the Senate Judiciary Committee, Mr. Barr should also commit to:
Release the special counsel’s findings to Congress and the American people. Mr. Barr must prevent President Trump or the White House from interfering or withholding any evidence by claiming executive privilege or other bases. The American people deserve the same set of facts that President Trump and the White House will have.
Protect the independence of the special counsel investigation and allow it to reach its conclusion. Mr. Barr must refrain from interfering in the special counsel’s budget and staff decisions, or investigative or prosecutorial actions. He must allow the special counsel the ability to continue following the facts until the special counsel determines the investigation is completed.
Refrain from having any improper conversations with President Trump, the White House, or anyone under investigation. Mr. Barr must also guarantee that information about the special counsel’s investigation is not improperly disclosed to the president, his attorneys, or anyone at the White House.
Abide by the Justice Department’s career ethics officials’ guidance on whether to recuse from overseeing the special counsel and publicly release the recommendation. Matt Whitaker, the current acting Attorney General, recently overruled the career ethics officials’ guidance that he should recuse himself from overseeing the special counsel given his public statements about undermining the investigation that created the appearance of a lack of impartiality. It is the considered view of the undersigned that Mr. Barr, too, should recuse from overseeing the special counsel in light of his statements evidencing bias and prejudgment. At minimum, Mr. Barr should restore integrity to the Justice Department by committing to follow the career ethics officials’ guidance.
Prevent politically-motivated investigative and prosecutorial decisions as required by the Constitution. Given Mr. Barr’s public statements advocating for investigations into the president’s political opponents and that the president can order the Justice Department to investigate anyone, Mr. Barr must commit to ensuring that the White House does not intervene in specific enforcement matters, especially those involving the President’s personal or political interests, and affirm that Justice Department independence is mandated by the constitutional requirement that the President “take care that the laws be faithfully executed.”
Enforce long-standing policies that preserve the integrity of the Justice Department. Mr. Barr must protect federal law enforcement decisions from improper White House interference by reporting any violations to the DOJ Office of the Inspector General and the Senate and House Judiciary Committee.
Enforce the principle that the President is not above the law. Mr. Barr must affirm that he agrees that the President is not above the law and that Article II of the Constitution does not exempt the President from laws prohibiting obstruction of justice and prosecutorial subpoena powers, or permit him to carry out his official duties with a corrupt purpose.
Absent public commitments from Mr. Barr to protect the special counsel investigation, we strongly urge each senator to vote against confirming him. Attorney General Richardson proved those public commitments are more than just words — and the commitments from Mr. Barr might be the difference if President Trump orders him to fire Special Counsel Mueller. Mr. Barr’s confirmation hearing before the Senate Judiciary Committee provides every senator with the opportunity to uphold the integrity of the rule of law and protect Special Counsel Mueller’s investigation.
SIGNED: Action Group Network American Oversight Center for American Progress Coalition to Preserve, Protect and Defend CREDO CREW Defending Democracy Democracy 21 Equal Justice Society Indivisible Law Works People for the American Way Protect Democracy Protect the Investigation Public Citizen Revolving Door Project Stand Up America The Loyal Opposition