[Senate Hearing 116-65]
[From the U.S. Government Publishing Office]
S. Hrg. 116-65
CONFIRMATION HEARING
ON THE NOMINATION OF
HON. WILLIAM PELHAM BARR
TO BE ATTORNEY GENERAL
OF THE UNITED STATES
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED SIXTEENTH CONGRESS
FIRST SESSION
----------
JANUARY 15 and 16, 2019
----------
Serial No. J-116-1
----------
Printed for the use of the Committee on the Judiciary
CONFIRMATION HEARING ON THE NOMINATION OF HON. WILLIAM PELHAM BARR
TO BE ATTORNEY GENERAL OF THE UNITED STATES
S. Hrg. 116-65
CONFIRMATION HEARING
ON THE NOMINATION OF
HON. WILLIAM PELHAM BARR
TO BE ATTORNEY GENERAL
OF THE UNITED STATES
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED SIXTEENTH CONGRESS
FIRST SESSION
__________
JANUARY 15 and 16, 2019
__________
Serial No. J-116-1
__________
Printed for the use of the Committee on the Judiciary
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
U.S. GOVERNMENT PUBLISHING OFFICE
36-846 PDF WASHINGTON : 2019
COMMITTEE ON THE JUDICIARY
LINDSEY O. GRAHAM, South Carolina, Chairman
CHARLES E. GRASSLEY, Iowa DIANNE FEINSTEIN, California,
JOHN CORNYN, Texas Ranking Member
MICHAEL S. LEE, Utah PATRICK J. LEAHY, Vermont
TED CRUZ, Texas RICHARD J. DURBIN, Illinois
BEN SASSE, Nebraska SHELDON WHITEHOUSE, Rhode Island
JOSHUA D. HAWLEY, Missouri AMY KLOBUCHAR, Minnesota
THOM TILLIS, North Carolina CHRISTOPHER A. COONS, Delaware
JONI ERNST, Iowa RICHARD BLUMENTHAL, Connecticut
MIKE CRAPO, Idaho MAZIE K. HIRONO, Hawaii
JOHN KENNEDY, Louisiana CORY A. BOOKER, New Jersey
MARSHA BLACKBURN, Tennessee KAMALA D. HARRIS, California
Lee Holmes, Chief Counsel and Staff Director
Jennifer Duck, Democratic Chief Counsel and Staff Director
C O N T E N T S
----------
JANUARY 15, 2019, 9:32 A.M., and JANUARY 16, 2019, 9:32 A.M.
STATEMENTS OF COMMITTEE MEMBERS
Page
Feinstein, Hon. Dianne, a U.S. Senator from the State of
California:
January 15, 2019, opening statement.......................... 3
January 15, 2019, prepared statement......................... 392
January 16, 2019, opening statement.......................... 132
Graham, Hon. Lindsey O., a U.S. Senator from the State of South
Carolina:
January 15, 2019, opening statement.......................... 1
January 16, 2019, opening statement.......................... 131
INTRODUCER
Hatch, Hon. Orrin G., a Former U.S. Senator from the State of
Utah introducing Hon. William Pelham Barr, Nominee to be
Attorney General of the United States.......................... 5
STATEMENT OF THE NOMINEE
Witness List..................................................... 189
Barr, Hon. William Pelham, Nominee to be Attorney General of the
United States.................................................. 7
prepared statement........................................... 319
questionnaire and biographical information................... 191
appendix 12(a)............................................... 226
appendix 12(b)............................................... 230
appendix 12(c)............................................... 232
appendix 12(d)............................................... 240
appendix 12(e)............................................... 256
appendix 14(e)............................................... 313
STATEMENTS OF THE WITNESSES
Canterbury, Chuck, National President, Fraternal Order of Police,
Washington, DC................................................. 146
prepared statement........................................... 323
Cary, Mary Kate, Former Speechwriter for President George H.W.
Bush, and Anne C. Strickler Practitioner Senior Fellow, The
Miller Center, University of Virginia, Washington, DC.......... 139
prepared statement........................................... 329
Johnson, Derrick, President and Chief Executive Officer, National
Association for the Advancement of Colored People, Baltimore,
Maryland....................................................... 134
prepared statement........................................... 332
Kinkopf, Neil J., Professor of Law, Georgia State University
College of Law, Atlanta, Georgia............................... 141
prepared statement........................................... 342
Morial, Hon. Marc H., President and Chief Executive Officer,
National Urban League, New York, New York...................... 137
prepared statement........................................... 351
Mukasey, Hon. Michael B., Former United States Attorney General;
Former U.S. District Judge for the Southern District of New
York; and Of Counsel, Debevoise & Plimpton LLP, New York, New
York........................................................... 133
prepared statement........................................... 355
Risher, Rev. Sharon Washington, Ordained Pastor, Charlotte, North
Carolina....................................................... 144
prepared statement........................................... 359
Thompson, Hon. Larry D., Former United States Deputy Attorney
General, and Partner, Finch McCranie LLP, Atlanta, Georgia..... 136
prepared statement........................................... 362
Turley, Jonathan, J.B. and Maurice C. Shapiro Professor of Public
Interest Law, The George Washington University Law School,
Washington, DC................................................. 142
prepared statement........................................... 366
QUESTIONS
Questions submitted to Hon. William Pelham Barr by:
Senator Blumenthal........................................... 394
Senator Booker............................................... 402
Senator Coons................................................ 416
Senator Cornyn............................................... 422
Senator Crapo................................................ 423
Senator Durbin............................................... 424
Senator Feinstein............................................ 446
Follow-up questions submitted by Senator Feinstein........... 463
Senator Grassley............................................. 467
Senator Harris............................................... 472
Senator Hirono............................................... 473
Senator Kennedy.............................................. 489
Senator Klobuchar............................................ 491
Senator Leahy................................................ 495
Follow-up questions submitted by Senator Leahy............... 506
Senator Tillis............................................... 508
Senator Whitehouse........................................... 518
Follow-up questions submitted by Senator Whitehouse.......... 534
Questions submitted to Chuck Canterbury by Senator Hirono........ 571
Questions submitted to Chuck Canterbury by Senator Klobuchar..... 572
Questions submitted to Derrick Johnson by Senator Hirono......... 573
Questions submitted to Derrick Johnson by Senator Leahy.......... 574
Questions submitted to Prof. Neil J. Kinkopf by Senator Hirono... 575
Questions submitted to Prof. Neil J. Kinkopf by Senator Leahy.... 576
Questions submitted to Hon. Marc H. Morial by Senator Hirono..... 578
Questions submitted to Hon. Marc H. Morial by Senator Leahy...... 579
Questions submitted to Rev. Sharon Washington Risher by Senator
Klobuchar...................................................... 580
Questions submitted to Rev. Sharon Washington Risher by Senator
Leahy.......................................................... 581
ANSWERS
Responses of Hon. William Pelham Barr to questions submitted by:
Senator Blumenthal........................................... 750
Senator Booker............................................... 789
Senator Coons................................................ 736
Senator Cornyn............................................... 594
Senator Crapo................................................ 603
Senator Durbin............................................... 654
Senator Feinstein............................................ 607
Follow-up questions submitted by Senator Feinstein........... 830
Senator Grassley............................................. 582
Senator Harris............................................... 811
Senator Hirono............................................... 763
Senator Kennedy.............................................. 604
Senator Klobuchar............................................ 727
Senator Leahy................................................ 636
Follow-up questions submitted by Senator Leahy............... 838
Senator Tillis............................................... 596
Senator Whitehouse........................................... 693
Follow-up questions submitted by Senator Whitehouse.......... 841
Responses of Hon. William Pelham Barr to questions submitted--
Continued
attachment I................................................. 813
attachment II................................................ 818
attachment III............................................... 821
Responses of Chuck Canterbury to questions submitted by Senator
Hirono......................................................... 842
Responses of Chuck Canterbury to questions submitted by Senator
Klobuchar...................................................... 842
Responses of Derrick Johnson to questions submitted by Senator
Hirono......................................................... 846
Responses of Derrick Johnson to questions submitted by Senator
Leahy.......................................................... 847
Responses of Prof. Neil J. Kinkopf to questions submitted by
Senator Hirono................................................. 855
Responses of Prof. Neil J. Kinkopf to questions submitted by
Senator Leahy.................................................. 849
Responses of Hon. Marc H. Morial to questions submitted by
Senator Hirono................................................. 860
Responses of Hon. Marc H. Morial to questions submitted by
Senator Leahy.................................................. 856
Responses of Rev. Sharon Washington Risher to questions submitted
by Senator Klobuchar........................................... 862
Responses of Rev. Sharon Washington Risher to questions submitted
by Senator Leahy............................................... 862
LETTERS RECEIVED WITH REGARD TO HON. WILLIAM PELHAM BARR, NOMINEE TO BE
ATTORNEY GENERAL OF THE UNITED STATES
ACORN 8, New Orleans, Louisiana, et al., nonpartisan
organizations and individuals for whistleblower protection..... 1001
Advocates for Youth, Washington, DC, et al., reproductive health,
rights, and justice organizations, January 14, 2019............ 875
Alliance for Justice, Washington, DC, January 9, 2019............ 879
Anti-Defamation League (ADL), New York, New York, January 14,
2019........................................................... 882
Association of State Criminal Investigative Agencies (ASCIA),
Mark Keel, President, ASCIAChief, South Carolina Law
Enforcement Division, January 10, 2019......................... 899
Center for American Progress (CAP), Washington, DC, January 10,
2019........................................................... 900
Center for Reproductive Rights, New York, New York, January 14,
2019........................................................... 903
Chemerinsky, Erwin, Dean and Jesse H. Choper Distinguished
Professor of Law, University of California Berkeley Law,
Berkeley, California, et al., constitutional law scholars who
specialize in separation of powers............................. 908
Constitutional Accountability Center, Washington, DC, January 10,
2019........................................................... 906
Drug Policy Alliance, Washington, DC, January 17, 2019........... 912
Earthjustice, San Francisco, California, January 10, 2019........ 915
Electronic Privacy Information Center (EPIC), Washington, DC,
January 14, 2019............................................... 918
Federal Law Enforcement Officers Association (FLEOA), Washington,
DC, January 3, 2019............................................ 924
Grijalva, Raul M., a Representative in Congress from the State of
Arizona, and Co-chair, Congressional Progressive Caucus,
January 14, 2019............................................... 925
Human Rights Campaign (HRC), Washington, DC, January 11, 2019.... 926
Human Rights Watch (HRW), New York, New York, January 14, 2019... 929
International Association of Chiefs of Police (IACP), Alexandria,
Virginia, January 14, 2019..................................... 932
International Union of Police Associations (IUPA), Sarasota,
Florida, January 2, 2019....................................... 933
Kids in Need of Defense (KIND), Washington, DC, January 16, 2019. 934
Lambda Legal, New York, New York, et al., January 14, 2019....... 944
Leadership Conference on Civil and Human Rights, The, Washington,
DC, December 20, 2018.......................................... 952
Major Cities Chiefs Association (MCCA), Art Acevedo, President,
and Chief of Police, Houston Police Department, Houston, Texas,
January 11, 2019............................................... 957
Major County Sheriffs of America (MCSA), Alexandria, Virginia,
January 10, 2019............................................... 958
Mukasey, Hon. Michael B., Former United States Attorney General;
Former U.S. District Judge for the Southern District of New
York; and Of Counsel, Debevoise & Plimpton LLP, New York, New
York, et al., former Federal law enforcement and national
security officers, January 9, 2019............................. 864
Mukasey, Hon. Michael B., Former United States Attorney General;
Former U.S. District Judge for the Southern District of New
York; and Of Counsel, Debevoise & Plimpton LLP, New York, New
York, February 4, 2019, letter, transcript pages, and statement
regarding the report of an investigation into the removal of
nine U.S. Attorneys in 2006 in reponse to questions asked by
Senator Whitehouse............................................. 959
NARAL Pro-Choice America, Washington, DC, January 9, 2019........ 971
National Alliance of Gang Investigators Associations (NAGIA),
Queen Creek, Arizona, January 7, 2019.......................... 973
National Center for Transgender Equality (NCTE), Washington, DC,
January 16, 2019............................................... 974
National Center on Sexual Exploitation (NCOSE), Washington, DC,
January 9, 2019................................................ 977
National Council of Jewish Women (NCJW), Washington, DC, January
10, 2019....................................................... 983
National Education Association, Washington, DC, January 11, 2019. 985
National Fraternal Order of Police, Washington, DC, January 4,
2019........................................................... 987
National Juvenile Justice and Delinquency Prevention Coalition
(NJJDPC), Washington, DC, et al., January 14, 2019............. 989
National LGBTQ Task Force Action Fund, Washington, DC, January
14, 2019....................................................... 992
National Narcotic Officers' Associations' Coalition (NNOAC),
Washington, DC, January 11, 2019............................... 994
National Urban League, New York, New York, January 10, 2019...... 995
National Women's Law Center, Washington, DC, January 22, 2019.... 997
People For the American Way, Washington, DC, January 9, 2019..... 1004
Planned Parenthood Federation of America, New York, New York,
January 14, 2019............................................... 1009
Sexuality Information and Education Council of the United States
(SIECUS), Washington, DC, January 15, 2019..................... 1011
Taxpayers Against Fraud (TAF), Washington, DC, January 10, 2019.. 1013
MISCELLANEOUS SUBMISSIONS FOR THE RECORD
Baker, Peter, The New York Times, January 15, 2019, Twitter
posting........................................................ 1029
NARAL Pro-Choice America, Washington, DC, January 9, 2019,
summary of events regarding the nomination of Hon. William P.
Barr........................................................... 1040
National Association for the Advancement of Colored People
(NAACP) Legal Defense and Educational Fund, Inc. (LDF), New
York, New York, report on the civil rights record of Hon.
William P. Barr................................................ 1030
National Coalition of Anti-Violence Programs (NCAVP), New York,
New York, statement............................................ 1050
CONFIRMATION HEARING
ON THE NOMINATION OF
HON. WILLIAM PELHAM BARR
TO BE ATTORNEY GENERAL
OF THE UNITED STATES
----------
TUESDAY, JANUARY 15, 2019
United States Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 9:32 a.m., in
Room SH-216, Hart Senate Office Building, Hon. Lindsey O.
Graham, Chairman of the Committee, presiding.
Present: Senators Graham [presiding], Grassley, Cornyn,
Lee, Cruz, Sasse, Hawley, Tillis, Ernst, Crapo, Kennedy,
Blackburn, Feinstein, Leahy, Durbin, Whitehouse, Klobuchar,
Coons, Blumenthal, Hirono, Booker, and Harris.
OPENING STATEMENT OF HON. LINDSEY O. GRAHAM,
A U.S. SENATOR FROM THE STATE OF SOUTH CAROLINA
Chairman Graham. Thank you, all. You are not going to get a
good shot of me. So, thank you, all.
So, Happy New Year, New Congress, and we will see how this
goes.
I recognize Senator Grassley.
Senator Grassley. Okay. I do this with a point of personal
privilege, Mr. Chairman, and I appreciate that courtesy of you
and the Members.
This is the first meeting of the Senate Judiciary Committee
in this 116th Congress. It is also the first time that we
convene while my friend Lindsey Graham holds the gavel and will
proceed to be Chairman.
So I would like to congratulate the new Chairman, thank him
for his leadership, and say that I look forward to working with
you and the other Members of this Committee as we seek to
address some of our Nation's most pressing problems. I have
every confidence that you will steer our 200-year-old Committee
in the right direction.
Chairman Graham. Well, thank you. I really appreciate that.
In my view, nobody looks over 100, so we are actually--we are
aging well as a Committee.
The bottom line is, how do you get this job? Your
colleagues have to vote for you. Thank you. You have to get re-
elected and outlive the person to your right. So I have been
able to do that.
And I look forward to working with Senator Feinstein, who
is--I have a lot of affection and fondness for. She, to me,
represents a seriousness that the body needs and a demeanor
that I think we should all aspire to.
To the new colleagues--Senators Hawley, Blackburn, and
Ernst--thank you for being part of this Committee. To Senators
Blackburn and Ernst, thank you for making history, I think, on
our side.
As to the hopes and dreams for this Committee, to get as
much done as possible and to fight when we have to over things
that matter to the public and show two different views of an
issue that is important, but do it as respectfully as possible.
Sentencing reform. Criminal justice reform was a very big
deal, and this Committee delivered for the country. Senator
Durbin, I want to thank you very, very much for working with
Senator Lee and Senator Grassley and Senator Booker. That is a
big deal that is going to change lives, I think, in a positive
way.
So this Committee has within it the ability to do big
things long overdue. I know Senator Blackburn wants to do
something on social media. Senator Klobuchar has got some ideas
about how to make sure if you put an ad up on social media, you
have to stand by it.
We are all worried about social media platforms being
hijacked by terrorists and bad actors throughout the
international world. We are worried about privacy. Do you
really know what you are signing up for when you get on one of
these platforms? I would like this Committee working with
Commerce to see if we can find some way to tame the ``wild
West.''
Intellectual property. Senator Tillis and Senator Coons
have some ideas that I look forward to hearing about. Senator
Sasse wants to make sure that we act ethically. You have got a
package of ethic reforms, and I look forward to working with
you there.
On this side, I know there are a lot of ideas that I am
sure that if we sat down and talked we could embrace, and I
look forward to solving as many problems as we can and having a
contest over ideas that really matter to the American people.
Senator Hatch, thank you for coming. In terms of my
Chairmanship, if I can do what you and Senator Grassley were
able to do during your time, I will have done the Committee a
good service.
Senator Grassley, thank you very much. Last year was tough,
but I think you and Senator Feinstein did the best you could in
the environment in which we live. The times in which we live
are very difficult times. I do not see them getting better
overnight, but I do see them getting better if we all want them
to.
So, about me, I want us to do better, and I will be as
measured as possible. The Immigration Lindsey will show up, but
the other guy is there, too, and I do not like him any more
than you do.
So the bottom line is, we are starting off with something
that would be good for the country. We have a vacancy for the
Attorney General spot. We have a chance to fill that vacancy.
Mr. Barr, you cannot hold a job. When you look at what he
has done in his life, it is incredible. So I want to thank the
President for nominating somebody who is worthy of the job, who
will understand on day one what the job is about and can right
the ship over there.
I think we all have concerns. I know Senator Whitehouse is
passionate about cybersecurity and ``Fort Cyber'' and all of
these other ideas that Sheldon has been pushing. It is just a
matter of time before we are hit and hit hard if somebody does
not step up to the plate with some solutions.
But a little bit about the nominee. He has been Attorney
General before, from 1991 to 1993 by voice vote. Those were the
days. Deputy Attorney General from 1990 to 1991, unanimous
consent without a recorded vote. Assistant Attorney General,
Office of Legal Counsel, voice vote. That is pretty amazing. I
think you are going to have an actual vote this time.
Academically gifted: George Washington Law School, Columbia
University undergraduate. Outside of DOJ, he was the General
Counsel, Legislative Counsel for the CIA. That is how he met
Bush 41. He has been a law clerk. He has worked in private
practice. I am not going to bore the Committee with all the
things he has done. He has been the senior vice president and
general counsel of GTE.
He has lived a consequential life--general counsel of
Verizon. You have lived a life that I think has been honorable
and noteworthy and accomplished, and I want to thank you for
being willing to take this task on. We have got a lot of
problems at the Department of Justice. I think morale is low,
and we need to change that.
So I will look forward to this hearing. You will be
challenged. You should be challenged. The memo, there will be a
lot of talk about it, as there should be. But I just want to
let you know, Mr. Barr, that we appreciate you stepping up at a
time when the country needs somebody of your background and
your temperament to be in charge of the rule of law.
And with that, I will turn it over to my colleague, Senator
Feinstein.
OPENING STATEMENT OF HON. DIANNE FEINSTEIN,
A U.S. SENATOR FROM THE STATE OF CALIFORNIA
Senator Feinstein. Thanks very much, Mr. Chairman.
And I want you to know I really look forward to working
with you.
Chairman Graham. Me, too.
Senator Feinstein. And I think we can work productively
together.
And Senator Grassley, I want to thank you for the time we
worked together. It really was a pleasure, and I had an
opportunity to get to know you as the fine person that you are.
So thank you very much.
I want to say just one word or two or three about women.
Twenty-five years ago, there were no women on this Committee. I
will never forget watching the Anita Hill hearing on a
television in the London airport with a lot of people gathered
around. So I went over to take a look, and I saw, and I saw
this all-male Judiciary Committee.
And it took all these years, but here we are. And I want to
particularly welcome Senator Ernst and Senator Blackburn. I
think it is extraordinarily important that this Committee be
representative of our society at large and that we are growing
that way, and so thank you very much for being here.
I would also like to welcome Bill Barr and his family. I
know you are proud to be here, and you served as Attorney
General before from 1991 to 1993, and I think we all have great
respect for your commitment to public service.
When we met, your previous tenure marked a very different--
we talked about a very different time for our country, and
today, we find ourselves in a unique time with a different
administration and different challenges. And now, perhaps more
than ever before, the country needs someone who will uphold the
rule of law, defend the independence of the Justice Department,
and truly understand their job is to serve as the people's
lawyer, not the President's lawyer.
Top of mind for all of us is the ongoing Mueller
investigation. Importantly, the Attorney General must be
willing to resist political pressure and be committed to
protecting this investigation. I am pleased that in our private
meeting, as well as in your written statement submitted to the
Committee, you stated that it is vitally important--and this is
a quote--that ``the Special Counsel be allowed to complete his
investigation'' and that ``the public and Congress be informed
of the results of the Special Counsel's work.''
However, there are at least two aspects of Mr. Mueller's
investigation: first, Russian interference in the United States
election and whether any U.S. persons were involved in that
interference and, second, possible obstruction of justice. It
is the second component that you have written on. And just 5
months before you were nominated, I spent the weekend on your
19-page legal memo to Deputy Attorney General Rod Rosenstein
criticizing Mueller's investigation, specifically the
investigation into potential obstruction of justice.
In the memo, you conclude, I think, that Special Counsel
Mueller is ``grossly irresponsible for pursuing an obstruction
case against the President and pursuing the obstruction inquiry
is fatally misconceived.'' So, I hope we can straighten that
out in this hearing.
But your memo also shows a large, sweeping view of
presidential authority and determined effort, I thought, to
undermine Bob Mueller, even though you state you have been
friends and are in the dark about many of the facts of the
investigation. So it does raise questions about your
willingness to reach conclusions before knowing the facts and
whether you prejudge the Mueller investigation. And I hope you
will make that clear today.
It also raises a number of serious questions about your
views on Executive authority and whether the President is, in
fact, above the law. For example, you wrote, ``The
President''--and I quote--``alone is the executive branch. As
such, he is the sole repository of all Executive powers
conferred by the Constitution. Thus, the full measure of law
enforcement authority is placed in the President's hands, and
no limit is placed on the kinds of cases subject to his control
and supervision.''
This is in your memo on page 10, and I will ask you about
it. This analysis included cases involving potential
misconduct, where you concluded, and I quote, ``The President
may exercise his supervisory authority over cases dealing with
his own interests, and the President transgresses no legal
limitation when he does so.'' That is on page 12.
In fact, you went so far as to conclude that, ``The
Framers' plan contemplates that the President's law enforcement
powers extend to all matters, including those in which he has a
personal stake.'' You also wrote, ``The Constitution itself
places no limit on the President's authority to act on matters
which concern him or his own conduct.'' Page 10.
Later, you conceded that certain supervisory actions, such
as the firing of Director Comey, may be unlawful obstruction.
However, this, too, is qualified. You argue that in such a
case, obstruction of justice occurs only if, first, a
prosecutor proves that the President or his aides colluded with
Russia. Specifically, you conclude, and I quote, ``The issue of
obstruction only becomes ripe after the alleged collusion by
the President or his campaign is established first.''
So that is some of the things I hope to ask you about. And
in conclusion, let me just say that some of your past
statements on the role of Attorney General and presidential
power are concerning. For instance, you have said in the past
that the Attorney General is the President's lawyer.
In November 2017, you made comments suggesting it would be
permissible for the President to direct the Justice Department
to open an investigation into his political opponents, and this
is notable in light of President Trump's repeated calls for the
investigation of Hillary Clinton and others who disagree with
him. I believe it is important that the next Attorney General
be able to strongly resist pressure, whether from the
administration or Congress, to conduct investigations for
political purposes.
He must have the integrity, the strength, and the fortitude
to tell the President no, regardless of the consequences. In
short, he must be willing to defend the independence of the
Justice Department.
So my questions will be do you have that strength and
commitment to be independent of the White House pressures you
will undoubtedly face? Will you protect the integrity of the
Justice Department above all else?
Thank you very much, Mr. Chairman.
[The prepared statement of Senator Feinstein appears as a
submission for the record.]
Chairman Graham. Thank you, Senator Feinstein.
Senator Hatch, welcome back. We truly miss you. You were a
great Chairman and an incredible Member of this body, and you
are very welcome to share your thoughts about Mr. Barr with
this Committee.
STATEMENT OF HON. ORRIN G. HATCH
FORMER U.S. SENATOR FROM THE STATE OF UTAH
Senator Hatch. Well, thank you so much, Mr. Chairman,
Ranking Member Feinstein as well, and Members of the Committee.
It is my distinct pleasure to be here today to introduce
William Barr, the President's nominee to be Attorney General of
the United States. I have known and worked with Bill closely
over the years and am glad to call him a friend.
Bill has had a distinguished career in public service and
in the private sector. He started his career at the Central
Intelligence Agency. While there, he went to law school part
time at George Washington University. Following graduation, he
was selected for a prestigious clerkship with a Federal Judge
on the D.C. Circuit before heading to private practice. Later,
he served in the Reagan White House in the Office of Policy
Development.
Following another stint in private practice, Bill began his
distinguished career at the Department of Justice under
President George H.W. Bush. Bill served as the Assistant
Attorney General for the Office of Legal Counsel, then as
Deputy Attorney General, and finally, as Attorney General of
the United States.
As Attorney General, Bill oversaw a number of sensitive
criminal investigations, including the investigation into the
Pan Am Flight 103 bombing. He prioritized fighting violent
crime and became known as a law and order Attorney General.
Throughout his time at the Justice Department, Bill earned
a reputation as a fierce advocate for the rule of law, as a
principled and independent decisionmaker, and as a lawyer's
lawyer. He has shown his commitment to the Constitution time
and time again while serving our country. That is why he has
been confirmed by the Senate unanimously three times.
After completing his service at the DOJ, Bill returned to
the private sector, working at law firms and as Counsel for
some of America's largest companies. I could do--I could go on
at length describing Bill's distinguished career. There is no
question, none whatsoever, that Bill is well qualified to serve
as Attorney General. He has held this position before and won
high praise during his tenure for his fairness, his tenacity,
and his work ethic.
So instead of droning on about Bill's resume, I want to
tell you about what Bill identifies as the most important
achievement of his private service as Attorney General, at
least, I believe this is what he believes. I believe his answer
tells you much about how he will approach the job and who he
is.
When asked what his most important accomplishment was as
Attorney General, Bill does not point to one of his many policy
successes. He does not talk about his role in setting antitrust
merger guidelines. He does not say it was his role leading the
DOJ's response to the savings and loan crisis. No, for him, it
was something more. It was something more tangible. It was
Talladega.
Three days after Bill was named Acting Attorney General by
President Bush, 121 prisoners noted and seized control of the
Talladega Federal Correctional Institution in Alabama. This was
a very serious matter, and they took 10 hostages. Planning at
the DOJ began immediately for how best to resolve the situation
and secure the safe release of the hostages.
In such a situation, some would have sought political
cover, not Bill. He was in charge. He knew the response was his
decision to make, his responsibility. He maintained his focus
on the safety of the men and women held hostage by the
prisoners.
The standoff lasted 10 days. Then on Bill's order, FBI
agents stormed the prison. Three minutes later, it was over.
The hostages were safe. The mission was well planned and
executed. The Federal agents did not even have to fire a single
shot. Bill's decisionmaking and judgment helped save lives.
When President Bush nominated Bill to be Attorney General
in 1991, I noted why he had been selected. He was not a member
of President Bush's political or personal inner circle. He was
not a part of the President's brain trust. He was not a
politician or former politician who brought political clout to
the position from prior elections or prior elected office. Bill
Barr was a lawyer's lawyer. Talent, merit, and performance--
those were the reasons President Bush selected him to be the
Attorney General at that time.
That statement holds true today. Bill Barr, in my opinion,
is an outstanding choice for Attorney General. His vast
experience, renowned judgment, and reputation as an ardent
defender of the rule of law make him a nominee that the
American people, the President, and the Senate should all be
proud of.
So I feel very honored to be here today to speak in his
favor, and I hope that his nomination will be approved
expeditiously.
Thank you, Mr. Chairman.
Chairman Graham. Thanks, Senator Hatch.
I would like to note at the outset that the Rules of the
Senate prohibit outbursts, clapping, or demonstrations of any
kind. This includes blocking the view of people around you.
Please be mindful of these rules as we conduct this hearing. I
will ask the Capitol Police to remove anyone who violates the
rules of this Committee.
Thank you, Senator Hatch.
Mr. Barr, would you come forward, please?
Chairman Graham. Raise your right hand, please. Do you
affirm that the testimony you are about to give to this
Committee will be the truth, the whole truth, and nothing but
the truth, so help you God?
General Barr. I do.
Chairman Graham. The floor is yours.
STATEMENT OF HON. WILLIAM PELHAM BARR, NOMINEE
TO BE ATTORNEY GENERAL OF THE UNITED STATES
General Barr. Before I begin, Mr. Chairman, could I
introduce my family?
Chairman Graham. Absolutely.
General Barr. My wife of 46 years, Christine, a retired
librarian. My daughter Margaret, who we call Meg, she was an
Assistant United States Attorney in the District of Columbia,
but now has moved up to Capitol Hill and works for Senator
Braun.
My middle daughter, Patricia, who is also an attorney, and
she has been Counsel to the House Agriculture Committee for how
long now, Patty, 10--11 years. And my daughter Mary, who is a
longtime Federal prosecutor and is currently the coordinator
for opioid enforcement in the Office of the Deputy Attorney
General.
Mary's husband, Mike, who is also an attorney at the
Department of Justice in the National Security Division, and
their son--Mary and Mike's son--Liam, who will someday be in
the Department of Justice.
[Laughter.]
General Barr. Patricia's husband, Pelham, who is a founding
partner of a consulting firm. And Meg's husband, Tyler, who is
also an Assistant United States Attorney in the Eastern
District of Virginia.
Did I leave anyone out?
Chairman Graham. Think about medical school, Liam.
[Laughter.]
Chairman Graham. Somebody needs to make money in the
family.
General Barr. When Meg was starting at Notre Dame, I told
her I wanted a doctor in the family, and I made her take
organic chem. Needless to say, she is now a lawyer. So----
Good morning, Mr. Chairman, Ranking Member Feinstein, and
Members of the Committee. It is a privilege to come before you
today, and I am honored that President Trump has nominated me
for the position of Attorney General.
I regret that I come before this Committee at a time when
much of our Government is shut down, and my thoughts are with
the dedicated men and women of the Department of Justice and
other Federal workers, many of whom continue to perform their
critical jobs.
As you know, if the Senate confirms me, this would be my
second time I would have the honor of holding this office.
During the 4 years I served under President George H.W. Bush,
he nominated me for three successive positions in the
Department--the Assistant Attorney General for the Office of
Legal Counsel, the Deputy Attorney General, and finally, the
Attorney General--and this Committee unanimously approved me
for each of those offices.
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. 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. Nothing could be more
destructive of our system of Government, of the rule of law, or
the Department of Justice as an institution, than any
toleration of political interference with the enforcement of
the law.
I believe this as strongly today as I did 27 years ago,
indeed, more strongly. We live in a 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 the evenhanded
application of the law. The Department of Justice must be that
place.
I did not pursue this position, and when my name was first
raised, I was reluctant to be considered and, indeed, proposed
a number of alternative candidates. I am 68 years old,
partially retired, and nearing the end of a long legal career.
My wife and I were looking forward to a peaceful and cherished
time with our daughters and grandchildren. And I have had this
job before.
But ultimately, I agreed to serve because I believe
strongly in public service, I revere the law, I love the
Department of Justice and the dedicated professionals who serve
there, and I believe that I can do a good job leading the
Department in these times.
If confirmed, I will serve with the same independence I did
in 1991. At that time, when President Bush chose me, he sought
no promises and asked only that his Attorney General act with
professionalism and integrity. Likewise, President Trump has
sought no assurances, promises, or commitments from me of any
kind, either express or implied, and I have not given him any,
other than that I would run the Department with professionalism
and integrity.
As Attorney General, my allegiance will be to the rule of
law, the Constitution, and the American people. This is how it
should be, this is how it must be, and if you confirm me, this
is how it will be. Now let me address a few matters I know are
on the minds of some of the Members of this Committee.
First, I believe it is vitally important that the Special
Counsel be allowed to complete his investigation. I have known
Bob Mueller for 30 years. We worked closely together throughout
my previous tenure at the Department of Justice. We have been
friends since, and I have the utmost respect for Bob and his
distinguished record of public service. And when he was named
Special Counsel, I said his selection was good news and that,
knowing him, I had confidence he would handle the matter
properly. And I still have that confidence today.
Given his public actions to date, I expect that the Special
Counsel is well along in his investigation. At the same time,
the President has been steadfast that he was not involved in
any collusion with Russian attempts to interfere in the
election. I believe it is in the best interest of everyone--the
President, Congress, and the American people--that this matter
be resolved by allowing the Special Counsel to complete his
work.
The country needs a credible resolution to these issues,
and 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 finish his work.
Second, I also believe it is very important that the public
and Congress be informed of the results of the Special
Counsel's work. My goal will be to provide as much transparency
as I can, consistent with the law. I can assure you that where
judgments are to be made, I will make those judgments based
solely on the law, and I will not let personal, political, or
other improper interests influence my decision.
Third, I would like to briefly address the memorandum that
I wrote last June. I wrote the memo as a former Attorney
General who has often weighed in on legal issues of public
importance, and I distributed it broadly so that other lawyers
would have the benefit of my views. My memo was narrow,
explaining my thinking on a specific obstruction of justice
theory under a single statute that I thought, based on media
reports, the Special Counsel might be considering.
The memo did not address or in any other way question the
Special Counsel's core investigation into Russian efforts to
interfere in the election, nor did it address other potential
obstruction of justice theories or argue, that some have
wrongly suggested, that a President can never obstruct justice.
I wrote it myself on my initiative without any assistance and
based solely on public information.
I would like to comment very briefly on my priorities, if
confirmed as Attorney General.
First, we must continue the progress we have made on
violent crime, while at the same time recognize the changes
that have occurred since I last served as Attorney General. The
recently passed First Step Act, which I intend to diligently
implement if confirmed, recognizes the progress we have made
over the past 3 decades in fighting violent crime. As Attorney
General, I will ensure that we will continue our efforts to
combat violent crime.
In the past, I was focused on predatory violence, but today
I am also concerned about another kind of violence. We can only
survive and thrive as a Nation if we are mutually tolerant of
each other's differences, whether they be differences based on
race, ethnicity, religion, sexual orientation, or political
thinking. And yet we see some people violently attacking others
simply because of their differences. We must have zero
tolerance for such crimes, and I will make this a priority as
Attorney General, if confirmed.
Next, the Department will continue to prioritize enforcing
and improving our immigration laws. As a Nation, we have the
most liberal and expansive immigration laws in the world. Legal
immigration has historically been a huge benefit to this
country. However, as we open our front door and try to admit
people in an orderly way, we cannot allow others to flout our
legal system by crashing in through the back doors. In order to
ensure that our immigration system works properly, we must
secure our Nation's borders, and we must ensure that our laws
allow us to process, hold, and remove those who unlawfully
enter.
Finally, in a democracy like ours, the right to vote is
paramount. In a period of great political division, one of the
foundations of our Nation is our enduring commitment to the
peaceful transition of power through elections. If confirmed, I
will ensure that the full might of our resources are brought to
bear against foreign persons who unlawfully interfere in our
elections. Fostering confidence in the outcomes of elections
also means ensuring that the right to vote is fully protected
as well as ensuring the integrity of elections.
Let me conclude by making the point that over the long run,
the course of justice in this country has more to do with the
character of the Department of Justice as an enduring
institution than with the tenure of any particular Attorney
General. Above all else, if confirmed, I will work diligently
to protect the professionalism and integrity of the Department
as an institution, and I will strive to leave it and the Nation
a stronger and better place.
Thank you very much for your time today, and I look forward
to answering your questions.
[The prepared statement of General Barr appears as a
submission for the record.]
Chairman Graham. Thank you, Mr. Barr. We will try to break
around 11:30, I think, to get a quick bite and break up the day
for you.
But one thing I want to tell you is, that I support the
idea that politicians, no matter of what Party, should not
interfere with criminal investigations. That makes imminent
sense to me. Once you go down that road, then the rule of law
collapses.
But there is another side to this equation--if I may say, a
two-way street. What about those in charge of enforcing the
law? What about those with the power to bring charges against
American citizens, including people up here? I remember Senator
Stevens' case in Alaska. So, we should always be on guard about
the politician interfering in an investigation, but we should
also have oversight of how the Department works, and those with
this tremendous power use that power.
Are you familiar with the January 11th New York Times
article about, ``FBI Opened Inquiry Into Whether Trump Was
Secretly Working on Behalf of Russia''?
General Barr. Yes, Mr. Chairman.
Chairman Graham. Would you promise me and this Committee to
look into this and tell us whether or not, in the appropriate
way, a counterintelligence investigation was opened up by
somebody at the FBI, Department of Justice against President
Trump?
General Barr. Yes, Mr. Chairman, I think there are a number
of investigations, as I understand it, going on in the
Department.
Chairman Graham. Have you ever heard of such a thing in all
the time you have been associated with the Department of
Justice?
General Barr. I have never heard of that.
Chairman Graham. Are there rules about how you can do
counterintelligence investigations?
General Barr. I believe there are, Mr. Chairman.
Chairman Graham. So if you want to open up one against the
President, are there any checks and balances?
General Barr. Not outside the FBI.
Chairman Graham. Okay. Well, we need to look at that. In
terms of people who are actually enforcing the law, don't we
want to make sure they don't have an agenda?
General Barr. That is right, Mr. Chairman.
Chairman Graham. Do you know a Lisa Page or Peter Strzok?
General Barr. I have heard their names.
Chairman Graham. But do you know them personally?
General Barr. No, I do not.
Chairman Graham. This is a message, August 8th, 2016, a
text message: ``Trump's not ever going to become President,
right? Right? '' Strzok responded, ``No, no, he's not. We'll
stop him.'' Strzok was in charge of the Clinton email
investigation. Ms. Page worked at the Department of Justice.
August 15th, 2016: ``I want to believe the path you threw out
for consideration in Andy's office, that there's no way he gets
elected, but I'm afraid we can't take that risk. It's like an
insurance policy in the unlikely event you die before 40.''
March 4th, 2016, Page to Strzok: ``God, Trump is a loathsome
human being.'' October the 20th, 2016: ``Trump is an `F'-ing
idiot, is unable to provide a coherent answer.''
To all those who enforce the law, you can have any opinion
of us that you like, but you are supposed to do your job
without an agenda. Do you promise me as Attorney General, if
you get this job, to look in to see what happened in 2016?
General Barr. Yes, Mr. Chairman.
Chairman Graham. How do these statements sit with you?
General Barr. I was shocked when I saw them.
Chairman Graham. Okay. Please get to the bottom of it. I
promise you we will protect the investigation, but we are
relying upon you to clean this place up.
FISA warrants. Are you familiar with a FISA warrant?
General Barr. Yes, Mr. Chairman.
Chairman Graham. Okay. During the process of obtaining a
warrant, is there a certification made by the Department of
Justice to the court that the information being provided is
reliable?
General Barr. Yes, sir.
Chairman Graham. Are you familiar with Bruce Ohr?
General Barr. No, I am not.
Chairman Graham. Bruce Ohr was Associate Deputy Attorney
General for Organized Crime and Drug Enforcement. His wife
worked at Fusion GPS. Are you familiar with Fusion GPS?
General Barr. Yes, I have read about that.
Chairman Graham. Fusion GPS, Mr. Barr, was hired by the
Democratic National Committee and the Clinton Campaign to do
opposition research against Candidate Trump and maybe other
candidates, but we now know that they hired Fusion GPS, Michael
Steele, who is a former British agent, to do opposition
research and produce the famous dossier. Are you aware that Mr.
Ohr's wife worked for that organization?
General Barr. I have read that.
Chairman Graham. Does that bother you if he had anything to
do with the case?
General Barr. Yes.
Chairman Graham. Are you aware that on numerous occasions,
he met with Mr. Steele while his wife worked with Fusion GPS?
General Barr. I have read that.
Chairman Graham. Okay. The warrant certification against
Carter Page on four different occasions certifies that the
dossier, which was the main source of the warrant, was
reliable. Would you look in to see whether or not that was an
accurate statement and hold people accountable if it was not?
General Barr. Yes, Mr. Chairman.
Chairman Graham. Mueller. You say you have known Mueller a
long time. Would you say you have a close relationship with Mr.
Mueller?
General Barr. I would say we are good friends.
Chairman Graham. Would you say that you understand him to
be a fair-minded person?
General Barr. Absolutely.
Chairman Graham. Do you trust him to be the fair to the
President and the country as a whole?
General Barr. Yes.
Chairman Graham. When his report comes to you, will you
share it with us as much as possible?
General Barr. Consistent with regulations and the law, yes.
Chairman Graham. Do you believe Mr. Mueller would be
involved in a witch hunt against anybody?
General Barr. I do not--I do not believe Mr. Mueller would
be involved in a witch hunt.
Chairman Graham. What are the circumstances that would
allow a Special Counsel to be appointed, generally speaking?
General Barr. Well, I appointed three, Mr. Chairman,
Special Counsel. And generally, when something comes up--an
issue comes up that needs to be investigated and there are good
reasons to have it investigated by a Special Counsel outside
the normal chain at the Department, someone usually of public
stature that can provide additional assurance of nonpartisan--
--
Chairman Graham. Do you believe that Attorney General
Sessions had a conflict because he worked on the Trump
Campaign?
General Barr. I am not sure of all the facts, but I think
he probably did the right thing recusing himself.
Chairman Graham. I agree. I think he did the right thing to
recuse himself. Do you know Rod Rosenstein?
General Barr. Yes, I do.
Chairman Graham. What is your opinion of him?
General Barr. I have a very high opinion of Rod Rosenstein
and his service in the Department.
Chairman Graham. Okay. Why did you write the memo?
General Barr. I wrote the memo because starting, I think,
in June 2017, there were many news reports, and I had no facts,
and none of us really outside the Department have facts. But I
read a lot of news reports suggesting that there were a number
of potential obstruction theories that were being contemplated
or, at least, explored.
One theory in particular that appeared to be under
consideration under a specific statute concerned me because I
thought it would involve stretching the statute beyond what was
intended, and would do it in a way that would have serious
adverse consequences for all agencies that are involved in the
administration of justice, especially the Department of
Justice. And I thought it would have a chilling effect going
forward over time. And my memo is very clear that is the
concern that was driving me, the impact, not the particular
case, but its impact of a rule over time.
And I wanted to make sure that before anyone went down this
path, if that was, in fact, being considered, that the full
implications of the theory were carefully thought out. So I
wanted my views to get in front of the people who would be
involved and the various lawyers who would be involved in those
discussions.
So, I first raised these concerns verbally with Rod
Rosenstein when I had lunch with him early in 2008, and when he
did not respond and was Sphinx-like in his reaction, expounded
on my concerns. And then I later attempted to provide a written
analysis as follow-up. Now, I initially thought of an op-ed,
and because of the material, it was not working out. And I
talked to his staff, and I said, you know, I want to follow up
and send something to Rod in writing, but is he a one-pager
kind of guy or, you know, how much will he read? And the guy
said, he is like you, he does not mind wading into a dense
legal memo.
Chairman Graham. Don't you think President Trump is a one-
pager kind of guy?
General Barr. Excuse me?
Chairman Graham. President Trump is a one-pager kind of
guy.
General Barr. I suspect he is.
Chairman Graham. Okay. Just remember that. Go ahead.
General Barr. Yes.
[Laughter.]
General Barr. And so I provided the memo to Rod, and I
provided it--distributed it freely among the other lawyers that
I thought would be interested in it, and I think it was
entirely proper. It is very common for me and for other former
senior officials to weigh in on matters that they think may be
ill advised and may have ramifications down the road.
For example, just a few months before that, I had weighed
in repeatedly to complain about the idea of prosecuting Senator
Menendez. I think I made three calls. I think it was two to
Sessions, to AG Sessions, and one to Rosenstein. Now, I did not
know Senator Menendez. I do not represent Senator Menendez. No
one was paying me to do it, and, in fact, I do not support
Senator Menendez politically, but I carefully watched this
case. My friend, Abbe Lowell, was his Defense Counsel, and it
was very much like a line of cases that I had been concerned
about when I was AG. And so I was watching it, and I thought
the prosecution was based on a fallacious theory that would
have bad long-term consequences. And so I freely weighed in at
the Department, and I did so because I care about the rule of
law.
And I want to say one final thing on the rule of law
because it picks up on something you said, Mr. Chairman. What
is the rule of law? We all use that term. In the area of
enforcement, I think the rule of law is that when you apply a
rule to A, it has to be the rule and approach you apply to B,
C, D, and E, and so forth. And that seems to me to suggest two
corollaries for an Attorney General. The first, that is why we
do not like political interference. Political interference
means that the rule being applied to A is not the rule you are
applying. It is special treatment because someone is in there
exerting political influence.
The corollary to that, and this is what you are driving at,
Mr. Chairman, is that when you apply a rule--when a prosecutor
is applying a rule to A, you got to be careful that it is not
torqued specially for that case in a way that could not be
applied down the road, or if it is applied, will create
problems down the road. And I think the Attorney General's job
is both. It is both to protect against interference, but it is
also to provide oversight to make sure that in each individual
case, the same rule that would be applied broadly is being
applied to the individual.
Chairman Graham. Senator Feinstein.
Senator Feinstein. Thank you, Mr. Chairman. Six quick
``yes'' or ``no'' questions. Will you commit to no interference
with the scope of the Special Counsel's investigation?
General Barr. I will--the scope of the Special Counsel's
investigation----
Senator Feinstein. By not----
General Barr [continuing]. Is set by his charter and by the
regulations, and I will ensure that those are maintained.
Senator Feinstein. Will you commit to providing Mr. Mueller
with the resources, funds, and time needed to complete his
investigation?
General Barr. Yes.
Senator Feinstein. Will you commit to ensuring that Special
Counsel Mueller is not terminated without good cause consistent
with Department regulations?
General Barr. Absolutely.
Senator Feinstein. If the Special Counsel makes any
request, for instance, about the scope of investigation or
resources for his investigation, will you commit to notifying
Congress if you deny that request?
General Barr. I think the regulations require notification
of Congress if there is a disagreement.
Senator Feinstein. Thank you. And I have two questions from
the Chairman of the House Judiciary Committee. Will you commit
to making any report Mueller produces at the conclusion of his
investigation available to Congress and to the public?
General Barr. As I said in my statement, I am going to make
as much information available as I can, consistent with the
rules and regulations that are part of the Special Counsel
regulations.
Senator Feinstein. Will you commit to making any report on
the obstruction of justice public?
General Barr. That is the same answer. Yes.
Senator Feinstein. Thank you. In your June 2018 memo about
obstruction of justice to the Mueller investigation, you
repeatedly referred to Mr. Mueller's ``sweeping and all-
encompassing interpretation of Section 1512,'' which is the--a
statute on obstruction. How do you know what Mr. Mueller's
interpretation of 1512 is?
General Barr. Well, as I said, I was--I was speculating. I
freely said at the beginning I was writing in the dark, and we
are all in the dark. Every lawyer, every talking head, everyone
who thinks about or talks about it does not have the facts.
Senator Feinstein. So I spent my Saturday reading that
memorandum.
General Barr. Yes.
Senator Feinstein. So are you saying this is all your
speculation? It is a big memo.
General Barr. Well, it was informed to the extent that I
thought that that was one of the theories being considered. I
do not know how seriously--whether it was being considered or
how seriously it was being considered. But I--as a shorthand
way in the memo of referring to what I was speculating might be
the theory, I referred to it as ``Mr. Mueller's theory'' rather
than go in every time I mention it say, well, this is
speculative.
Senator Feinstein. But do you know what Mueller's
interpretation of 1512 is?
General Barr. No, I do not know what Mueller's
interpretation.
Senator Feinstein. Okay.
General Barr. And just one point, Senator. I think--you
said in your opening statement I said he was grossly
irresponsible. I think I said if something happens, it would be
grossly irresponsible. I was not calling Mueller grossly
irresponsible.
Senator Feinstein. I understand.
General Barr. Okay.
Senator Feinstein. Thank you. I appreciate that. Has anyone
given you non-public information about Mueller's investigation?
General Barr. I do not--I do not recall getting any
confidential information about the investigation.
Senator Feinstein. Your 2018 memo--in it you stated, and I
quote, ``The Framers' plan contemplates that the President's
law enforcement powers extend to all matters, including those
in which he had a personal stake,'' end quote. Please explain
what you based this conclusion on.
General Barr. Yes. Here is the Department of Justice--right
here, and within the Department of Justice, enforcement
decisions are being made. The President is over here, and I
think of it as, there are two categories of potential
communications. One would be on a case that the President wants
to communicate about that he has no personal interest in, no
political interest in. Let us say, the President is concerned
about Chinese stealing trade secrets and says, ``I want you to
go after this company that is being--you know, that may be
stealing trade secrets.'' That is perfectly appropriate for him
to do--to communicate that.
But, whether it is bona fide or not, the Department of
Justice's obligation and the Attorney General's obligation is
not to take any action unless we reach--``we,'' the Department
of Justice and the Attorney General--reach their own
independent conclusion that it is justified under the law, and
regardless of the instruction. And that is my quote that
everyone is saying, you know, I am siccing the--you know, it is
okay for the--for the President to direct things. All I said
was, it is not per se improper for the President to call on the
Department for doing something, especially if he has no
personal or political interest in it.
The other category of cases--and let us pick, you know, an
easy bad example--would be if a member of the President's
family or a business associate or something was under
investigation, and he tries to intervene. He is the chief law
enforcement officer, and you could say, well, he has the power,
but that would be a breach of his obligation under the
Constitution to faithfully execute the laws.
So, in my opinion, if he attempts--if a President 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--whether it also violates a statute,
depending on what statute comes into play, and what all the
facts are.
Senator Feinstein. Including the Emoluments Clause of the
Constitution.
General Barr. Well, I think there is a dispute as to what
the Emoluments Clause relates to. I have not personally
researched the Emoluments Clause. I cannot even tell you what
it says at this point. Off the top of my head I would have
said, well, emoluments are essentially a stipend attached to
some office, but I do not know if that is correct or not. But I
am sure it is----
Senator Feinstein. Okay. Well----
General Barr. I think it is being litigated right now.
Senator Feinstein. I am going to--I do not know either, so
I am going to try and find out, and we will come back another
day and maybe discuss it.
General Barr. Okay. Okay.
Senator Feinstein. Your memo stated, ``a fatal flaw in
Mueller's interpretation of Sec. 1512(c)(2), is that, while
defining obstruction solely as acting `corruptly,' Mueller
offers no definition of what `corruptly' means.'' My
understanding is that there is nothing in the public record
that sheds light on his definition of ``obstruction.'' Do you
know what his definition is?
General Barr. I do not know what his definition is. I read
a book where people were asking whether someone--I think--I do
not know if it is accurate, but whether someone--the President
was acting with corrupt intent. And what I say in my memo is,
actually the--people do not understand what the word
``corruptly'' means in that statute. It is an adverb, and it is
not meant to mean with a state of mind. It is actually meant
the way in which the influence or obstruction is committed.
That is an adverbial function in the statute.
And what it means is, using in the 19th century sense, it
is meant to influence in a way that changes something that is
good and fit to something that is bad and unfit, namely the
corruption of evidence or the corruption of a decisionmaker.
That is what the word ``corruptly'' means because once you
dissociate it from that, it really means--very hard to discern
what it means. It means ``bad.'' What does ``bad'' mean?
Senator Feinstein. Let me go on because my time is so
limited. You argue that the--and I quote, ``The Constitution's
plenary grant of those powers to the President also extends to
the unitary character of the executive branch itself.''
Specifically you argue, and this is a quote, ``While Mueller's
immediate target is the President's exercise of his
discretionary powers, his obstruction theory reaches all
exercises of prosecutorial distinction by the President's
subordinates, from the Attorney General down to the most
junior-line prosecutor.''
So, if the President orders the Attorney General to halt a
criminal investigation for personal reasons, would that be
prohibited under your theory?
General Barr. Prohibited by what?
Senator Feinstein. By----
General Barr. The Constitution?
Senator Feinstein [continuing]. The Constitution.
General Barr. I think it would be--I think it would be a
breach of the President's duties to faithfully execute the law.
It would be an abuse of power. Whether it would violate a
statute depends on all the facts and what statute I would--
someone would cite me to. But I certainly think it would be an
abuse of his power. And let me just say that the position----
Senator Feinstein. Would that be the same thing if an
Attorney General fired U.S. Attorneys for political reasons?
General Barr. No, because U.S. Attorneys are political
appointments.
Senator Feinstein. According to news reports, President
Trump interviewed you and asked you to be part of the legal
team defending him in the Mueller investigation--twice, first
in the spring of 2017 when the investigation was just beginning
and again earlier this year. Is that correct?
General Barr. No, he--I had one conversation with him that
related to his private representation, and I can describe that
for you. That was--that was in June 2017. That is the only time
I met him before I talked to him about the job of Attorney
General, which obviously is not the same as representing him.
Senator Feinstein. Have you discussed the Mueller
investigation with the President or anyone else in the White
House?
General Barr. I discussed the Mueller investigation, but
not in--not in any particular substance. I can go through my
conversations, with you, if you want.
Senator Feinstein. Well, not at that time, but I may come
back to you----
General Barr. Okay.
Senator Feinstein [continuing]. And ask you about that. I
do not want to take any more time. Thank you, Mr. Chairman.
Chairman Graham. Senator Grassley.
Senator Grassley. Before I ask my first question, and I do
not want you to respond to this. I just want you to know what
my interest is in the transparency of the Mueller report. When
we spend 35--I do not know whether it is $25 million or $35
million, the taxpayers--that is billions of dollars--the
taxpayers ought to know what their money was spent for. So if
you have got some reservations about some part of it not being
public, I hope that that is related to traditional things
that--of the public's business that should not be public, like
national security is an example, not being made public. But
beyond that, the only way I know for the taxpayers to hold
anybody that spend the taxpayers' money responsibly is through
transparency because that brings accountability.
My first question, and as you would expect from our
conversation in my office, in 1986, Reagan signed the False
Claims Act. I worked hard to get that passed, especially
provisions empowering whistleblowers to help Government
identify fraud. More than a decade ago, you said, the qui tam
provisions in the False Claims Act were--your words, ``an
abomination and were unconstitutional.'' You said, you, in your
words, ``wanted to attack the law, but the Supreme Court upheld
the law's constitutionality.''
Prosecutors from both sides of the aisle have praised the
law as the most effective tool Government has to detect and
actually recover public money lost to fraud. Since 1986, the
law that was passed in 1986 brought in $56 billion into the
Federal treasury. Most of that is because patriotic
whistleblowers found the fraud and brought the case to the
attention of the Government.
Is the False Claims Act unconstitutional?
General Barr. No, Senator. It has been upheld by the
Supreme Court.
Senator Grassley. Do you consider the False Claims Act to
be an abomination?
General Barr. No, I do not.
Senator Grassley. Does the False Claims Act benefit the
taxpayer, specifically its provisions to empower and protect
whistleblowers?
General Barr. Yes, Senator.
Senator Grassley. If confirmed, do you commit to not take
any action to undermine the False Claims Act? Further, if
confirmed, will you continue current Justice Department staff
and funding levels to properly support and prosecute False
Claims Act cases?
General Barr. Yes, I will diligently enforce the False
Claims Act.
Senator Grassley. Now, with all those positive answers, you
would think I would be done, wouldn't you, with that? But let
me go on.
[Laughter.]
Senator Grassley. Just to show you that there are some
forces out there that I am suspicious about within the
Department of Justice, we have a new Department of Justice
guidance document out last year, known as the ``Granston
Memo.'' It provides a long list of reasons that the Department
can use to dismiss False Claims Act cases, some of them pretty
darn vague, such as preserving--these are their words:
``preserving Government resources.'' Just think of all the
mischief those three words can bring.
Of course, the Government can dismiss, obviously, meritless
cases. I do not argue with that. But even when the Department
declines to participate in False Claims Act cases, the taxpayer
can in many cases still recover financially. So it is important
to allow whistleblowers to pursue cases even when the
Department is not able to be involved.
Under what circumstances can or should the Justice
Department move to dismiss False Claims cases?
General Barr. Senator, I have not reviewed that memorandum,
so I am not familiar with the thinking of the people in the--I
think it is the Civil Division that did that. But if I am
confirmed, I will review it, and I would be glad to come and
sit down with you and discuss it, and if there are areas you
are concerned about, I would be glad to work with you on that.
Senator Grassley. Unless you find that my presumption is
wrong, that there are reasons to be suspicious, I hope you will
take into consideration my feeling about how in various
suspicious ways people that are faceless bureaucrats can
undermine this effort.
In circumstances where the Government does not intervene in
False Claims cases, if confirmed, will you commit to ensuring
the Department does not unnecessarily dismiss False Claims Act
cases?
General Barr. Yes, Senator. I will enforce the law in good
faith.
Senator Grassley. Okay. Now, we have got an Act that the
Justice Department just took, and I cannot obviously expect you
to respond specifically to the Act, but I use it as an example
of their uncooperation with the Department of Congressional
Oversight. This uncooperative behavior needs to change. On
December the 10th, last year, the Department confirmed a
briefing for your staff regarding the Asset Forfeiture Fund,
and to do that last week, January the 8th. On January the 7th,
the Department of Justice Office of Legislative Affairs
informed our staff that they will no longer provide the
briefing because they consider the matter closed as a result of
the change in Chairmanship and because you released a public
memo--because I released a public memo on the Marshals Service
study or investigation. It is important to gain your commitment
on how you would handle this as an example.
Let me explain how ridiculous it is to get somebody in this
administration saying that they do not have to answer if you
are not Chairman of a Committee. We went through this in
January, the first month this President was in office, when he
said--or he put out a memo, ``We are not going to answer any
oversight except for Chairmen of Committees.'' So, you are
going to write off 500 Members of Congress not doing oversight.
So, we told them all about this and the constitutional
cases on this. We got them up. They wrote a memo again 2 months
later that said that they were going to respond to all this
stuff. Now you have got people in the bowels of the bureaucracy
that are still saying, If you are not a Chairman, you ain't
going to get an answer to anything. How ridiculous. It is our
constitutional responsibility.
So then I laid out--I will give you an example. I sent the
Justice Department a classified letter regarding information
acquired from the Justice Department Inspector General report
on the Clinton investigation. The Department ought to answer
for what the Attorney Inspector General has found. But I have
not heard a peep, not a peep on that yet.
On December the 10th, the Justice Department--well, I am
repeating here. So the question is: Do you understand that, if
you are confirmed, you have an obligation to ensure that the
Justice Department--and particularly the FBI is a problem--
respond to congressional inquiries and to do it in a timely
manner?
General Barr. Absolutely, Senator.
Senator Grassley. You understand that this obligation
applies regardless of whether you are a Member of Congress or a
Committee Chairman?
General Barr. Yes, Senator. You know, you and Senator
Leahy, I think, are the only Members of the Committee now who
were here 27 years ago when I was first confirmed, but I think
you will recall that we were able to establish very cooperative
and productive relationships with all the Members and try to
respond to their questions and deal with their concerns and
work with them on projects they are interested in. And that
will be the same approach that I will bring to the job if you
confirm me.
Senator Grassley. Okay. Then let me be specific on my last
question on oversight. You remember when you were in my office
I gave you, as I gave Attorney General Sessions, as I gave
Holder, a long list of things that the Department has not
answered. And one of these was an October 17, 2018, letter, and
I would like to have your response to answering that letter and
respond to all outstanding and future oversight requests in a
timely manner.
And then, remember, I said all you Cabinet people come up
here to tell us ``yes'' when we ask you if you are going to
answer our stuff, I said, maybe you better say, ``maybe.'' So
if you want to say ``maybe'' now and be really honest, say,
``maybe.'' Otherwise, I hope you will answer that October 17th
letter once we get you voted into office.
General Barr. Yes, Senator.
Senator Grassley. Throughout your career you have expressed
concern with congressional attempts to enact criminal justice
reform and at times advocated for stricter mandatory minimum
sentences. In 1992, under your direction, DOJ published a
report entitled, ``The Case for More Incarceration.'' This
report declared that the problem with our criminal justice
system was that we were incarcerating too few criminals.
More recently, in 2015, you signed a letter opposing the
Sentencing Reform and Corrections Act of 2015. This letter
states quite clearly your opposition to sentencing reform,
particularly the lessening of mandatory minimum sentences and
any sort of retroactivity.
The First Step Act was signed by President Trump. As
Attorney General, it will be your job to implement the
legislation. Even though you have opposed criminal justice
reform in the past, will you commit to fully implementing the
First Step Act?
General Barr. Yes, Senator. But, you know, in 1992, when I
was Attorney General, the violent crime rates were the highest
in American history. The sentences were extremely short.
Typically, in many States the time served for rape was 3 years;
for murder, time served 5 to 7 years. The system had broken
down. And I think through a series of administrations--Reagan,
Bush, and Clinton--the laws were changed, and we targeted
violent, chronic violent offenders, especially those using
guns. And I think the reason the crime rate is much lower today
is because of those policies.
So I do not think comparing the policies that were in
effect in 1992 to the situation now is really fair. And I
think--and I have said, that right now we have greater
regularity in sentencing. There is broader recognition that
chronic violent offenders should be incarcerated for
significant periods of time to get them off the streets. And I
think the time was right to take stock and make changes to our
penal system based on current experience.
So I have no problem with the approach of reforming the
sentencing structure, and I will faithfully enforce that law.
Senator Grassley. Do not take it personal if I raise my
voice to you. I am not mad at you.
[Laughter.]
Chairman Graham. If I were you, I would answer his letters.
Just a tip that may help you through your job, if you get it.
I will take the time away from my second round. I am very
curious about the conversations you had about personal
representation or being Attorney General. You mentioned it to
Senator Feinstein. Can you just kind of give us a summary of
what you were talking about?
General Barr. Yes, so in June 2017, the middle of June,
Ambassador David Friedman, who is the U.S. Ambassador to
Israel--who I did not know. I knew that he was a top-tier
lawyer in New York and apparently a friend of the President's.
He reached out to me, and we talked one evening, and he said
that he--well, my understanding was he was interested in
finding lawyers that could augment the defense team, and
failing that, he wanted to identify Washington lawyers who had
experience, you know, broad experience whose perspective might
be useful to the President's. And he asked me a number of
questions, like, you know, ``What have you said about the
President publicly? '' ``Do you have any conflicts? '' and so
forth. And I told him that I did not think I could take this
on, that I had just taken on a big corporate client that was
very important to me and I expected a lot of work. And I said
at my point in life, I really did not want to take on this
burden and that I actually preferred the freedom to not have
any representation of an individual, but just say what I
thought about anything without having to worry about that. And
I said that my wife and I were sort of looking forward to a bit
of respite and I did not want to stick my head into that meat
grinder.
He asked me if I would nonetheless meet--briefly go over
the next day to meet with the President. And I said, ``Sure, I
will go and meet with the President.'' And he brought me over
and was squeezing me in--it looked to me like it was before the
morning staff meeting because people were grouping by the door
to get in, and I went in. And he was there, the Ambassador was
there, sat through the meeting. It was a very brief meeting
where essentially the President wanted to know--he said, ``Oh,
you know Bob Mueller. How well do you know Bob Mueller? '' And
I told him how well I knew Bob Mueller and how, you know, the
Barrs and Muellers were good friends and would be good friends
when this is all over and so forth. And he was interested in
that, wanted to know, you know, what I thought about Mueller's
integrity and so forth and so on. And I said, ``Bob is a
straight shooter and should be dealt with as such.''
And he said something to the effect like, ``So are you
envisioning some role here? '' And I said, ``You know,
actually, Mr. President, right now I could not do it. Just my
personal and my professional obligations are such that I am
unable to do it.'' So he asked me for my phone number. I gave
it to him, and I never heard from him again until----
Chairman Graham. Well, I tried that once.
[Laughter.]
Chairman Graham. You did better than----
General Barr. Well, I did not hear from him until, you
know, later, but about something different, which was the
Attorney General position.
Chairman Graham. Senator Leahy.
Senator Leahy. Thank you.
Mr. Barr, good to see you again. As you mentioned, Senator
Grassley and I were here at your hearing a number of years ago.
Let me go back even before that. Forty-six years ago, I was not
in the Senate. I was State's attorney in Vermont, and I watched
with a great deal of interest the Elliot Richardson hearings.
He had been nominated to be Attorney General, and it was in the
midst of Watergate. He made several commitments to the
Committee, including appointing a Special Prosecutor, and he
promised to protect his independence. And as one who had total
independence as an elected prosecutor in Vermont, I thought how
important it was to have that same independence at the national
level. And Mr. Richardson said it was necessary to create the
maximum possible degree of public confidence in the integrity
of the process. I have never forgotten that. I think the
integrity of our institutions is just as much at risk today.
President Trump has made it clear he views the Justice
Department as an extension of his political power. He has
called on it to target his opponents. He obsesses over the
Russia investigation, which looms over his presidency, may
define it. He attacks the Special Counsel almost daily. He
fired both the previous FBI Director and Attorney General for
not handling the investigation as he pleased. That tells me the
rule of law can no longer be taken for granted.
So, if confirmed, the President is going to expect you to
do his bidding. I can almost guarantee you he will cross the
line at some point. That is why the commitments you make here
today, just like those I watched Elliot Richardson make years
ago, matter greatly. So will you commit, if confirmed, to both
seeking and following the advice of the Department's career
ethics officials on whether you must recuse from the Special
Counsel's investigation?
General Barr. I will seek the advice of the career ethics
personnel, but under the regulations, I make the decision as
the head of the agency as to my own recusal. So I certainly
would consult with them, and at the end of the day, I would
make a decision in good faith based on the laws and the facts
that are evident at that time.
Senator Leahy. The same thing if you are talking about a
conflict of interest?
General Barr. Well, no, some conflicts, as you know, are
mandatory.
Senator Leahy. I am thinking of what Attorney General
Sessions said, when asked a similar question, he said he will
seek and follow the advice--seek and follow the advice--of the
Department of Justice's designated ethics officials. So let me
ask you maybe in a different way.
I know you have promised to not interfere with the Special
Counsel. Are there any circumstances that would cause you to
terminate the investigation or any component of it or
significantly restrict its funding?
General Barr. Under the regulations, Bob Mueller could only
be terminated for good cause, and, frankly, it is unimaginable
to me that Bob would ever do anything that gave rise to good
cause. But, in theory, if something happened that was good
cause, for me it would actually take more than that. It would
have to be pretty grave and the public interest would
essentially have to compel it, because I believe right now the
overarching public interest is to allow him to finish.
Senator Leahy. Well, I would agree with that, but I also
think over the past 18 months you have rather harshly prejudged
the investigation in some of your writings.
General Barr. Well, you know, I do not see that at all,
Senator. You know, when you strip away a lot of the rhetoric,
the two things that have been thrown up as me sort of being
antagonistic to the investigation are two things: One, a very
mild comment I made that, ``Gee, I wish the team had been more
balanced.'' I was not criticizing Mueller. I believe that
prosecutors--and I think you would agree--they can handle the
case professionally, whatever their politics are. You know, a
good prosecutor can leave their politics at the door and go in
and do the job. And I think that is what Justice Department
prosecutors do in general.
Senator Leahy. But you were also very critical of the
Russian probe, and, I mean, I cannot think of anything that
would--in your memo, for example, that would jump out more for
this President because of his commitment to it. And I ask that
because some have said, on both sides of the aisle, that it
looked like a job application, and so that is what I wanted you
to refer to.
General Barr. Well, you know, that is ludicrous. If I
wanted the job and was going after the job, there are many more
direct ways of me bringing myself to the President's attention
than writing an 18-page legal memorandum, sending it to the
Department of Justice and routing it to other----
Senator Leahy. But you also publicly criticized the Russian
probe. I mean----
General Barr. How have I criticized the Russian probe?
Senator Leahy. You do not have any criticism of the Russian
probe?
General Barr. Not at all. I believe the Russians interfered
or attempted to interfere with the election, and I think we
have to get to the bottom of it.
Senator Leahy. So you would be in favor of releasing the
investigative report when it is completed?
General Barr. As I have said, I am in favor of as much
transparency as there can be consistent with the rules and the
law.
Senator Leahy. Do you see a case where the President could
claim executive privilege and say that parts of the report
could not be released?
General Barr. Well, I do not have a clue as to what would
be in the report. The report could end up being, you know, not
very big. I do not know what is going to be in the report. In
theory, if there was executive privilege, material to which an
executive privilege claim could be made, it might--you know,
someone might raise a claim of executive privilege.
Senator Leahy. That would be very difficult following U.S.
v. Nixon when the Supreme Court unanimously rejected President
Nixon's claims of executive privilege over the Watergate tapes.
But I ask it because the President's attorney, Mr. Giuliani,
said the President should be able to correct the Mueller report
before any public release. So, in other words, he could take
this investigative report, put his own spin on it, and correct
it before it is released. Do you commit that would not happen
if you are Attorney General?
General Barr. That will not happen.
Senator Leahy. Thank you.
You had--when you were AG--I remember this well because I
was here in the Senate at the time you encouraged President
George H.W. Bush to pardon all six individuals who were
targeted in Iran-Contra. The independent prosecutor who
investigated the matter labeled that a ``cover-up.''
Now, you and I talked about this in my office, and I
appreciate you coming by. I found the conversation the two of
us had to be well worthwhile. Do you believe a President could
lawfully issue a pardon in exchange for the recipient's promise
to not incriminate him?
General Barr. No. That would be a crime.
Senator Leahy. Thank you.
In 1990, you argued that Congress' appropriation power is
not an independent source of congressional power to control the
allocation of Government resources. There are only three
Committees in the Senate that have a Vice Chairman;
Appropriations is one of them. Obviously, as Vice Chairman, I
kind of looked at that. You claimed that if a President finds
no appropriated funds within a given category, he may use funds
from another category as long as both categories are in his
constitutional purview.
Now, as Vice Chairman of the Appropriations Committee, do
not be surprised I disagree. Congress' power of the purse,
Article I, Section 9, I believe constitutes one of the most
fundamental and foundational checks and balances on the
executive branch. So do you believe the President can ignore
Congress' appropriations, allocations, conditions, and
restrictions in law, just ignore them and take the money and
transfer----
General Barr. Not as a general proposition, but I--that
was----
Senator Leahy. A general proposition----
General Barr. I actually thought that was a good Law Review
article. I gave it as a speech, and it was really a thought
piece. And what I was really saying was--and I say right up
front that the more I thought about the appropriations power,
the more confused I got. And I was just laying out a potential
template, which is this: People frequently say, you know, the
power to spend money on this division or this missile system is
part of the power of the purse. And what I was actually saying
was--you know, actually, with the power being exercised there
is the substantive power that Congress has to raise armies, and
it does not come from the power of----
Senator Leahy. It was also specific on appropriations on
Agriculture or on Finance. I mean, for example, could the
President just build a wall along our southern border because
he wanted to and just take the money, whether appropriated or
not? What about eminent domain?
General Barr. What about eminent domain?
Senator Leahy. Well, if you are going to build a wall, you
are going to take a whole lot of land away from landowners in
Texas and elsewhere.
General Barr. Well, you know, you would have to show me
what statute is being invoked and also what appropriation is
being used. I cannot answer that in the abstract.
Senator Leahy. So you are saying the President, though, can
have the power to go into money even if the Congress has
appropriated it for a different purpose?
General Barr. I did not say that, but some have----
Senator Leahy. Do you mean that?
General Barr. No, I do not mean that. I am saying that, you
know, there are moneys that the President may have power to
shift because of statutory authority.
Senator Leahy. But that would have been because Congress
gave him that authority.
General Barr. Right.
Senator Leahy. Not because he has it automatically.
General Barr. I am not taking that position. As I said, my
Law Review--it was published as a Law Review article, and it
was a thought piece exploring what limits there might be to the
appropriations power and where Congress' power comes from in
certain areas.
Senator Leahy. Thank you.
Thank you, Mr. Chairman.
Chairman Graham. Just to follow up on that real quick, and
I will not take this against Senator Cornyn. Do the Article II
powers, the inherent authority of the Commander-in-Chief, give
him the ability to take appropriated dollars from the
Department of Defense and build a wall?
General Barr. I cannot--without looking at the statute, I
really could not answer that.
Chairman Graham. I am not talking about the statute. I am
talking about the inherent authority of the President as
Commander-in-Chief.
General Barr. That is the kind of question I would go to
OLC to answer.
Chairman Graham. Okay. Get back with us on that.
Senator Cornyn.
Senator Cornyn. Well, Mr. Chairman, let me congratulate you
on your election as Chairman of the Judiciary Committee and
tell you I look forward to working with you and supporting this
Committee's efforts. And thank you for convening today's
hearing.
And I want to express my profound and sincere thanks to the
nominee, Mr. Barr, for agreeing to serve a second time as
Attorney General. I noted in your statement you said it was 27
years ago that you sat in this chair and went through your
first confirmation hearing, and to me that says a lot about
your character and your commitment to the rule of law that you
would be willing to go through this process again and serve
once again as the chief law enforcement officer of the country.
Thank you for doing that.
General Barr. Thank you, Senator.
Senator Cornyn. Thank you to your family as well.
To me, the Attorney General is one of the most challenging
Cabinet offices to hold because, as you point out in your
opening statement, you are committed to the rule of law and
enforcing the laws of the land, but you are also a political
appointee of the President. If you serve in another Cabinet
position, certainly you are committed to implementing the
President's agenda or the agenda of an administration, but as
Attorney General, that is not an unequivocal commitment because
there may be some things that the administration wants you to
do that you cannot do consistent with the rule of law. Correct?
General Barr. That is right, Senator. One of the reasons I
ultimately decided that I would accept this position if it was
offered to me was because I was--I feel that I am in a position
to be independent. You know, over the years a lot of people
have--some politicians have called me up saying, you know, ``I
am thinking of going for the Attorney General position in this
administration,'' and so forth. And I would say, ``You are
crazy, because if you view yourself as having a political
future down the road, do not take the job, because if you take
this job, you have to be ready to make decisions and spend all
your political capital and have no future because you have to
do--you have to have that freedom of action.'' And I feel I am
in a position in life where I can do the right thing and not
really care about the consequences in the sense that I do not--
I can truly be independent.
Senator Cornyn. Mr. Barr, thinking back about the run-up to
the 2016 election where the nominee of both political parties
for President of the United States ended up being investigated
by the FBI, can you think of any precedent in American history
where that has occurred that you know of?
General Barr. No, I cannot, Senator.
Senator Cornyn. In thinking back to James Comey's press
conference of July 7, 2016, where he took the step of talking
about the evidence against Mrs. Clinton, talking about the
legal standard that would apply as to whether she might or
might not be indicted for committing a crime under the
Espionage Act, have you ever seen a situation where an FBI
Director would usurp the authority of the Department of Justice
to make that charging decision and hold a press conference and
talk about all of the derogatory information that the
investigation had gleaned against a potential defendant and
then say now we are not going to--no reasonable prosecutor
would indict her? Have you ever seen anything like that happen
before?
General Barr. No, I have never seen that, and I thought it
was a little bit--more than a little bit. It was weird at the
time. But my initial reaction to it was, I think Attorney
General Lynch had said something--you know, she was under
pressure to recuse herself, I think, because of the so-called
tarmac meeting. And I think she said something like she was
going to defer to the FBI. So my initial reaction to that whole
thing was, well, she must have agreed or it must have been the
plan that he was going to make the decision and go out and
announce his decision.
Senator Cornyn. Under the normal rules, if the--if the
Attorney General has a conflict of interest----
General Barr. It would go to the Deputy.
Senator Cornyn. It would go to the Deputy.
General Barr. Correct.
Senator Cornyn. Not to the FBI Director to make that
decision. Correct?
General Barr. Right. So that is why I thought it was very
strange, but I think later it became clearer, to the extent
there was anything clear about it, that I do not think Attorney
General Lynch had essentially delegated that authority to the
Director. And I think Jim Comey, as I have said, is an
extremely gifted man who has served the country with
distinction in many roles, but I thought that to the extent he
actually announced a decision was wrong.
And the other thing is if you are not going to indict
someone, then you do not stand up there and unload negative
information about the person. That is not the way the
Department of Justice does business.
Senator Cornyn. I was shocked when Mr. Comey later wrote a
letter saying that based on the discovery of Clinton emails on
the Weiner laptop, that they were reopening the investigation
that he had already announced closed. And then, finally, just
days before the general election--November the 6th, 2016--said
we did not find anything on the laptop that would change my
conclusions based on the press conference of July the 6th.
Did you likewise find that to be an extraordinary, I will
use the word, ``bizarre,'' but certainly unprecedented event?
General Barr. Yes, the whole sequence was very herky-jerky
and bizarre. But at that time, I was a little of a contrarian
in that I basically took the position that once he did what he
did in July and said the thing was over and then found out it
was not over, he--you know, he had no choice but to correct the
record.
So I said that he had no choice but to do what he did, but
it sort of shows you what happens when you start disregarding
the normal procedures and established practice is that you sort
of dig yourself a deeper and deeper hole.
Senator Cornyn. Why is it that the Department of Justice
rules, which also apply to the FBI, make it clear that our
chief law enforcement agencies in this country should not get
tangled up in election politics? Are there policies in place
that try to insulate the investigations and the decisions of
the Department of Justice and FBI from getting involved in
elections?
General Barr. Yes, Senator, there are.
Senator Cornyn. And why is that?
General Barr. Well, obviously, because the incumbent party
has their hands on the--among other reasons, they have their
hands on the levers of the law enforcement apparatus of the
country, and you do not want it used against the opposing
political party.
Senator Cornyn. And that is what happened when the
counterintelligence investigation of the Trump campaign began
in late July and continued on through, well, presumably, to
Director Comey's firing and beyond?
General Barr. Well, I am not in a position to, you know,
make a judgment about it because I do not know what the
predicate was for it. I think I said, you know, it is strange
to have a counterintelligence investigation of a President. But
I am not--you know, I just do not know what the predicate is.
And if I am confirmed, I assume I will find out.
Senator Cornyn. Rod Rosenstein's memo recommending the
termination of James Comey as FBI Director was dated May the
9th, 2017. It is entitled, ``Restoring Public Confidence in the
FBI.'' I take it you have read the memo, and do you agree with
its conclusion?
General Barr. I completely agree with Rod Rosenstein. And I
thought the important point he made, from my standpoint, was
not the particular usurpation that occurred, but it was, as, I
think, he says, that Director Comey just did not recognize that
that was a mistake. And so it was going to potentially be a
continuing problem, his appreciation of his role vis-a-vis the
Attorney General.
Senator Cornyn. As I have said, the title of the memo is
``Restoring Public Confidence in the FBI.'' Do you agree that
restoration of public confidence in the FBI and Department of
Justice as an apolitical or nonpolitical law enforcement
organization is important?
General Barr. It is critical----
Senator Cornyn. And needed?
General Barr. It is critical. And that is one of the
reasons I am sitting here. I would like to help with that
process.
Senator Cornyn. Well, Mr. Barr, I think you are uniquely
qualified to do that, and I wish you Godspeed.
General Barr. Thank you, Senator.
Senator Cornyn. It could not be more important.
Thank you.
Chairman Graham. Senator Durbin.
Senator Durbin. Mr. Barr, we have never had a chance to
meet, but I welcome you to this Committee.
General Barr. Thank you.
Senator Durbin. You seem like a rational person, and I
would like to ask you a question. When you consider what Jeff
Sessions went through as the Attorney General for President
Donald Trump, where he was subjected to unrelenting criticism,
primarily because, as a matter of conscience, he decided he had
a conflict of interest and should remove himself from any
decisions by the Special Counsel concerning the Russia
investigation; when you consider that this President has lashed
out on a personal basis against Federal Judges who ruled
against his administration; when you consider the criticism
which he has leveled at the chief law enforcement investigative
agency, the Department of Justice, the FBI, as well as our
intelligence agencies; when you see the exit lanes glutted of
those leaving the White House at every single level, why do you
want this job?
General Barr. Well, because I love the Department and all
its components, including the FBI. I think they are critical
institutions that are essential to preserving the rule of law,
which is the heartbeat of this country. And I would like to
think that there was bipartisan consensus when I was last in
this position that I acted with independence and
professionalism and integrity, and I had very strong and
productive relationships across the aisle, which were
important, I think, to trying to get some things done.
And I feel that I am in a position in life where I can
provide the leadership necessary to protect the independence
and the reputation of the Department and serve in this
administration.
Senator Durbin. A number of my colleagues on both sides
have asked, and I will bet you will hear more, questions along
the line of what would be your breaking point? When would you
pick up and leave? When is your Jim Mattis moment, when the
President has asked you to do something which you think is
inconsistent with your oath? Does that not give you some pause
as you embark on this journey?
General Barr. It might give me pause if I was 45 or 50
years old, but it does not give me pause right now. Because I
had very good life--I have a very good life. I love it. But I
also want to help in this circumstance, and I am not going to
do anything that I think is wrong. And I will not be bullied
into doing anything I think is wrong by anybody, whether it be
editorial boards or Congress or the President. I am going to do
what I think is right.
Senator Durbin. You have a very nice family behind you.
General Barr. Thank you.
Senator Durbin. I am glad you introduced them.
General Barr. Thank you, Senator.
Senator Durbin. And I do not want to give your grandson any
career advice. He has received quite a bit this morning
already. But he ought to consider, at least, for some balance,
being a Public Defender.
[Laughter.]
Senator Durbin. One of the things that you alluded to as a
major issue of concern is immigration, and I am glad you said
it. Our Government is shut down now over the issues of border
security and immigration. And the Attorney General plays a
central role, which many people do not know, as they look at
the Department of Homeland Security for most of the action on
the issue of immigration.
I was surprised at the exit interview by General Kelly when
he said, and I am paraphrasing, that Attorney General Sessions
was responsible for the zero-tolerance policy that was
announced in mid 2018. And that it was because of that policy,
that was one of the reasons why he was being asked to leave.
That is the first I had ever heard.
Are you familiar with the zero-tolerance policy?
General Barr. Generally, Senator, yes.
Senator Durbin. I can tell you that it was an effort to
take escorted children--infants, toddlers, and children--and
forcibly remove them from their parents at the border. This
policy by our Government separated up to 2,800 of those
children and put them into the system, the same system as
unaccompanied children. The results were horrible. I saw them
firsthand.
And you have alluded in your opening statement to stopping
people from crashing through the border, breaking and flouting
the laws. Those young children, for the most part, were being
brought to this country by their parents to seek asylum. You
can present yourself at America's border and seek asylum
legally, can you not?
General Barr. Yes, Senator, you can.
Senator Durbin. So separating those children from their
parents in an effort, as Attorney General Sessions explained,
to get tough with families presenting themselves at the border,
was a policy decision on his part. Do you agree with that
policy decision?
General Barr. Well, I am not sure I know all the details
because one of the disadvantages I have is I am not in the
Department and do not really have the same backing I did in
terms of information that I had last time. But my understanding
is that DHS makes the decision as to who they are going to
apprehend and hold.
Now you can claim asylum, but that does not mean you can
waltz into the country freely.
Senator Durbin. No, of course not.
General Barr. Okay? And you have to be processed. And my
understanding is a majority of people do not qualify for
asylum. But DHS makes the decision who to hold and charge with
the crime of illegal entry, and then they refer it to the
Department of Justice. And I believe the Department's policy,
when they say--when the Department says zero tolerance, they
are saying whatever DHS refers to us in the way of illegal
entry prosecutions we will prosecute.
Now, now what is being done, because I think the
administration has changed the policy, is DHS is not referring
for prosecution family units that would lead to the separation
of children from the family unit.
Senator Durbin. It is true that the President and the
administration abandoned the policy after there was a public
reaction to the separation of these children.
I am concerned--I want to go back to your University of
Virginia Miller Center speech, which is----
General Barr. It is a gem, is it not?
[Laughter.]
Senator Durbin. It is a classic. And it goes back many
years. But you described your previous tenure as the Attorney
General, and you said, ``After being appointed, I quickly
developed some initiatives on the immigration issue that would
create more border patrols, change immigration rules,
streamline processing. It would, furthermore, put the Bush
campaign ahead of the Democrats on the immigration issue, which
I saw as extremely important in 1992. I felt that a strong
policy on immigration was necessary for the President to carry
California, a key State in the election.''
That is a pretty revealing statement about a political
agenda.
General Barr. Yes, and there is nothing wrong with that.
Because as I have said, you know, the Attorney--and I have
spoken on this a number of times. There are sort of three roles
the Attorney General plays.
One is, the enforcer of the law. In that, the role of the
Attorney General is to keep the enforcement process sacrosanct
from political influence.
The second one is, as legal adviser, and that is in the
Judiciary Act of 1789, legal adviser to the President and the
Cabinet. And there, I say the Attorney General's role is to
provide, you know, unvarnished, straight from the shoulder
legal advice as to what the Attorney General believes is the
right answer under the law.
And then the third role is, the policy role, which is law
enforcement policy, which includes immigration policy. And
there you are a political subordinate of the President, and it
is okay to propose policies that are politically advantageous.
Senator Durbin. Well----
General Barr. But I have to say that--you know, that was
casual conversation. The point was I was pursuing a strong
immigration policy, even when I was Deputy, long before the
election was on the horizon. And in traveling around the
country, visiting the border, paying a lot of visits to
California, I saw how important the issue was, and I thought
the administration has to be more responsive to it. And yes,
there was a political benefit to it.
Senator Durbin. I just have a short time left. The
Chairman, our new Chairman--congratulations--Graham noted 10
years of work by a number of us on this Committee on a
bipartisan basis to deal with criminal sentencing and prison
reform. And the First Step Act signed by the President around
Christmas, I think, is a significant departure.
I learned, as many have, that the approach, the ``get
tough'' approach that we imposed with 100-to-1 sentencing
disparity between crack and powder did not work. Did not work.
The number of drugs being sold on the street increased. The
price of the drugs went down. The people being incarcerated
went up dramatically.
And we learned the hard way that was not the way to deal
with the issue, and now we are trying to clean up 10 years
later, more--25 years later, from the 100-to-1 disparity. I
voted the wrong way on 100-to-1. Now I know, in retrospect.
You have made some hardline statements about this issue and
criminal sentencing in the past, and many of us believe on a
bipartisan basis we have got to look at this anew and not
repeat these mistakes again. So I would like to hear your
assurance that you are--you have learned, as I have, that there
is a better way, could be a more effective way. And that as
Attorney General, you will help us implement the First Step Act
and design the second step?
General Barr. Absolutely, Senator. From my perspective, the
very draconian penalties on crack were put into place initially
because when the crack epidemic first hit, it was like nuclear
weapons going off in the inner city. And as I think you will
recall, a lot of the community leaders at that time were saying
you have got to--you know, this is killing us. You have to do
something.
So the initial reaction of draconian penalties was
actually, you know, trying to help those communities. And over
time and now the same leaders are saying to us this has been
devastating. You know, generation after generation of our
people are being incarcerated--have been incarcerated and lost
their lives because of this, and you have to change the
policies. And I think that that is--we should listen to the
same people we were listening to before.
I supported generally strong penalties on drugs because--
not just crack--because I felt the money involved was so high
that, you know, you needed something to counteract that. I also
said repeatedly, over the years of the drug war, that I felt
that the head of the snake is outside the country. And the
place to fight this aggressively is at the source more than on
the street corner, and I used to say we could, you know, stack
up generation after generation of people in prison, and it will
still keep on coming.
And so I always felt that--and I support an adjustment to
these sentences and the safety valve and so forth. To me, the
corollary is we have to really start thinking and using all our
national forms of power in the sense of our diplomacy and our,
you know, economic leverage and so forth to get better results
overseas.
So, for example, now fentanyl is sort of the new crack.
Fentanyl and fentanyl analogs are sort of the new crack, and
they are coming in from China. So----
Senator Durbin. Across the Mexican border.
General Barr. Correct. Correct.
Senator Durbin. At ports of entry, 90 percent.
General Barr. So that is a long-winded answer to your
question, which is I understand that things have changed since
1992. I--you know, I held on a little bit longer to keeping
strong sentences maybe than others. Part of that was I was not
involved in the business anymore. I was not at Justice
Department looking at reports and studies, learning about
different things in the country. I was, you know, arguing with
the FCC about telecommunications rules.
So----
Chairman Graham. Mr. Barr?
General Barr. Yes?
Chairman Graham. That was a great answer, and it was long-
winded.
General Barr. Okay.
[Laughter.]
Chairman Graham. Senator Lee.
Senator Lee. Mr. Barr----
Chairman Graham. After this, we will break until 12:15 p.m.
for lunch and a comfort break.
Senator Lee. Mr. Barr, thank you very much for your
willingness to spend time with us today and your willingness to
be considered for this important position yet again.
General Barr. Thank you.
Senator Lee. Great to have your family here. And I cannot
help but comment. A lot of people have talked about Liam today.
Probably more than any of his other friends or classmates,
people of his age, cohort, people are thinking about what he
might do for a living.
Unless some of my colleagues who have suggested medicine, I
want to just sort of suggest what I suggested to my three
children, which is that I am not going to push them into any
career choice, which in our family means that you could be any
kind of lawyer you want.
[Laughter.]
Senator Lee. Just keep that in mind with Liam.
I would like to talk to you first about civil asset
forfeiture. As you know, civil forfeiture and criminal
forfeiture are two very different things, two very different
species of Government taking someone's asset. With criminal
forfeiture, of course, the Government's ability to take
something away is predicated upon a conviction of a crime. With
civil asset forfeiture, that happens even in the absence of a
conviction.
There are some serious questions, of course, regarding the
legality and the constitutionality of civil asset forfeiture,
and Justice Thomas, for example, has questioned whether some of
these practices are constitutional. I was encouraged to note
that in your testimony in 1991, you identified this as an
issue.
When you testified before this Committee, you criticized
what you described as the ``speed trap mentality of
forfeiture.'' Your point was that, ``Agencies should not feel
that just because they seize money, they are going to get the
money.''
Now since 1991, I have seen our Government, our law
enforcement agencies actually move more toward the sort of
speed trap mentality rather than away from it, as many of us
would have preferred. Too often, law enforcement agencies have
too strong an incentive to use civil asset forfeiture in a way
that lines their own coffers outside of the relevant
appropriations process.
So let me just ask you the question. Do you think that the
speed trap mentality is a problem? And if so, is that something
that you will work to address within the Department of Justice,
if you are confirmed?
General Barr. Yes, I think constant vigilance is necessary
because, you know, there are incentives there that should be of
concern in administering the law. And I understand that there
are some, you know, people who are concerned about it, have
some horror stories. The people at the Justice Department have
been trying to clamp down. I think Attorney General Sessions
put out some guidelines that were supposed to address that.
I have not gotten into it myself. I plan to get into it and
see exactly, you know, what the horror stories are, where the
problems and potential abuses are, and also how--whether
Attorney General Sessions' guidelines are providing sufficient
protection.
At the same time, you know, I think it is a valuable tool
in law enforcement and the State and local law enforcement
officer, our partners, it is very important to them. So I want
to make sure we strike the right balance. And once I have a
chance to review it, I would be glad to come up and talk to you
about that.
Senator Lee. Thank you. I appreciate that.
I understand that it is a tool that many consider valuable
and a--but a tool that can be considered valuable for some of
those same reasons. Something that is considered valuable to
the Government can in many instances jeopardize an individual
right that is protected under the Constitution. We have got to
be careful of that.
You refer to the partnership that sometimes takes place
between State and Federal authorities. This is sometimes where
we see it abused. In the case of a procedure known as equitable
sharing where sometimes State law might prohibit the use of
civil asset forfeiture under certain circumstances, and in
those circumstances, those State law enforcement agencies might
work with Federal law enforcement for the specific purpose of
evading State law that would otherwise prohibit that. So I hope
that is something you will look into as well.
Let us talk about antitrust for a minute. Along with
Senator Klobuchar, I chair the Antitrust Subcommittee. And, as
I am sure you are aware, there are a growing number of people
who take the position, who embrace the viewpoint that we should
use antitrust law to address a whole host of social and
economic harms to--among other things, to ensure that companies
respect the First Amendment or to prevent large companies from
becoming too big or to shape labor markets or conform
industries to a particular aesthetic or achieve some other
broadly defined social interest.
I would like to know what your view is on this. Are you a
believer in the sort of ``big is bad'' mentality, or do you
gravitate more toward the idea that our antitrust laws are
there to protect consumers and should focus on consumer welfare
and prices that consumers face?
General Barr. Yes. I mean, generally, that is where I
stand, which is the purpose of the antitrust laws, obviously,
is to protect competition. And that competition--it is
competition that ultimately redounds to consumer benefits.
At the same time, I am sort of interested in stepping back
and reassessing or learning more about how the Antitrust
Division has been functioning and what their priorities are. I
do not think big is necessarily bad, but I think a lot of
people wonder how such huge behemoths that now exist in Silicon
Valley have taken shape under the nose of the antitrust
enforcers.
And you know, you can win that place in the marketplace
without violating the antitrust laws, but I want to find out
more about that dynamic.
Senator Lee. Right. Yes, and in some circumstances, a
company that becomes too big ends up behaving in a way and
exerting market dominance in a way that impairs consumer
welfare anti-competitively. In other circumstances,
consolidation can bring about lower prices and increase
competition. I assume you would not disagree with either of
those statements?
General Barr. No, Senator.
Senator Lee. As you know, and as several of my colleagues
have mentioned, President Trump signed into law the First Step
Act about a month ago. This is legislation that I applaud and
legislation that I have been working on in one way or another
for 8 years and was pleased to team up with Senator Grassley,
Senator Durbin, Senator Booker, and others to work on that over
the course of many years.
As you know, the Attorney General has an important role
under the First Step Act in appointing members to something
called the Independent Review Commission. That Independent
Review Commission will make recommendations concerning which
offenders might be eligible for earned credits under this
legislation and which programs will be approved.
When we drafted this legislation, there were some Members
who were concerned that whoever was the Attorney General at the
time of this law's passage and implementation might be able to
undermine the effectiveness of this law by appointing members
who did not agree with or believe in the objectives of the
bill. So will you commit to me, Mr. Barr, that you will appoint
people to that Independent Review Commission who are honest
brokers to decide which offenders should be eligible and which
programs should be eligible to participate?
General Barr. Yes, Senator.
Senator Lee. Thank you.
Are you familiar with the Ashcroft-Sessions policy, namely
the policy requiring prosecutors to charge the most significant
readily provable offense?
General Barr. Yes, Senator.
Senator Lee. Tell me how that should best be balanced out
with the discretion of a prosecutor, most frequently, of
course, with the discretion of a local U.S. Attorney's Office.
General Barr. Well, I was going to say I think the best way
of balancing it out is to have a supervisor who is able to
approve departures from that policy based on the specific
circumstances. And there are countless different, you know,
permutations of facts that might justify a departure from it.
So I think it is best handled by supervisory people, but I also
think it has to be looked at centrally.
I am not saying that each case has to be approved
centrally, but there has to be some monitoring of what is going
on because, as you know, one of the things that led to the
sentencing guidelines was, you know, just difference--big
differences in the way the laws were being applied and enforced
around the country. And I think we need to try to strive for as
much uniformity as we can.
Senator Lee. But you intend to continue that policy?
General Barr. Yes.
Senator Lee. And----
General Barr. Unless someone tells me a good reason not to.
Senator Lee [continuing]. If I'm understanding you
correctly, you are saying that if you do follow it, you will
defer to the judgment of the office in question in the case of
determining when to not charge the most serious readily
provable offense?
General Barr. No. I mean I will not defer to my--I mean, I
am not going to say, yes, I will defer to my subordinate. I
mean, usually you do defer to your subordinates. But there
might be a case I disagree with, and I will assert myself on
it.
Senator Lee. Okay. I see my time has expired.
Thank you, sir.
Chairman Graham. Thanks, Senator Lee.
We will take a recess to 12:15 p.m. and start with Senator
Whitehouse when we come back.
[Whereupon the Committee was recessed and reconvened.]
Chairman Graham. The hearing will come to order, and I
recognize Senator Whitehouse.
Thank you, Mr. Barr.
Senator Whitehouse. Thank you, Chairman. This is my first
chance at a Committee hearing to congratulate you on taking the
gavel here. We worked well together when you were Chairman of
the Crime and Terrorism Subcommittee, and I hope that that will
continue here.
Mr. Barr, welcome.
Did you make it a condition of taking this job that Rod
Rosenstein had to go? Just to be clear, so we are not bandying
words here, did you request or signal or otherwise communicate
in any way that you wanted Rod Rosenstein to go?
General Barr. No. The President said that the decision on
the Deputy was mine. Anything I wanted to do on the Deputy was
fine.
Senator Whitehouse. So we will find no William Barr
fingerprints on Rosenstein's departure.
General Barr. No. Rod and I have been talking, you know,
about his plans. He told me that he viewed it as a 2-year stint
and would like to use, if I am confirmed, my coming in as an
occasion to leave. But we talked about the need for a
transition, and I asked him if he would stay for a while, and
he said he would. And so, as of right now, I would say there is
no--he has no concrete plans, I have no concrete plans in terms
of his departure.
Senator Whitehouse. And you----
General Barr. We are going to sort of play it by ear and
see what makes sense.
Senator Whitehouse. And you have not undertaken to run him
out in any way.
General Barr. Absolutely not.
Senator Whitehouse. That leaves an opening at the DAG
position whenever you work this out. Can you tell us, since
Attorneys General are very often defined by the immediate
appointments around them, at chief of staff, DAG, criminal
chief, what are the characteristics and qualifications that you
will seek as you fill particularly that position, but all three
that I mentioned?
General Barr. I am sorry, the Deputy and what was the other
one?
Senator Whitehouse. Deputy, chief of staff, and criminal
chief.
General Barr. There is already a criminal chief.
Senator Whitehouse. I know, yes. Already a Deputy Attorney
General, but he is leaving.
General Barr. Well, for a Deputy, I would like someone who
is a really good manager and who has good management experience
running Government programs. And I want a first-rate lawyer and
someone I--whose judgment I feel comfortable in.
Senator Whitehouse. Experience in the Department?
General Barr. Not necessarily, but experience in Government
at a high level.
Senator Whitehouse. When we met, I gave you a letter that
you have seen just so none of these questions would be a
surprise, so I hope it is no surprise to you that I am going
through some of them. If you are confirmed, what will be the
Department's rule regarding communications between White House
and Department of Justice officials regarding criminal and
investigative matters? Who at DOJ will be allowed to have those
conversations with the White House, and who at the White House
will you entertain those conversations from at DOJ?
General Barr. So, you know, I have looked through the
existing regime, and my instinct is to keep it, maybe even
tighten it up a little bit more. I remember when George W.
Bush's administration was coming in, my advice was start tight,
and then as you realize who has judgment and so forth----
Senator Whitehouse. Yes.
General Barr [continuing]. You can go back to a----
Senator Whitehouse. They went the other way, and it was a
bad day for Attorney General Gonzales in the hearing room when
that was brought to his attention. What is your understanding
right now of who at the Department of Justice is authorized to
have communications with the White House regarding
investigations?
General Barr. Well, it depends--it depends what it is, but
on criminal matters I would just have the AG and the Deputy.
Senator Whitehouse. And what do you think the rule is now
in the Department?
General Barr. I think that is what it is.
Senator Whitehouse. Okay. So if the reports are true that
as chief of staff, Mr. Whitaker was involved in conversations
with the White House about bringing criminal investigations
against the President's political enemies, that would not be
consistent with your understanding of that policy.
General Barr. Well, it would depend upon, you know, what
his understanding is with the Attorney General. I mean, the----
Senator Whitehouse. Well, the Attorney General was recused,
so hard to step into the shoes of a recused Attorney General
matter, right?
General Barr. Well, I do not know what the communication is
related to. I am not really sure what you are talking about.
Senator Whitehouse. Okay. I hope you will become sure when
you get there because there is a fair amount of, I think,
questionable behavior that has gone on that does not reflect
well on the Department that I hope will get your attention. I
also asked you about the Special Counsel investigation and to
give us a clear exposition of how that memo came to be: who you
talked to, when, who was involved in it. There were a number of
questions in that letter that at this point you have not
answered.
You have, I gather, told the Chairman the names of some
dozen or so people whom you contacted, as I understand it, once
the memo was written, but it is not clear. Do you have any
objection to answering the questions that I wrote as questions
for the record so that the Committee can understand who you
worked with, who you talked with about this idea, who you
worked with in preparing the memo, who helped you with things
like citations that people at your level do not often do
yourselves, and where it was circulated and vetted, and what
edits were made, and so forth?
General Barr. No, I have no objection to that.
Senator Whitehouse. Great.
[The information appears as a submission for the record.]
General Barr. But I----
Senator Whitehouse. We will expect you----
General Barr. Just to--just to be clear, no one helped me
write the memo, and I know how to do legal citations, which I
do.
Senator Whitehouse. Well, a lot of people know how, but
that does not mean they always do it.
General Barr. I do it. I did.
Senator Whitehouse. Okay.
General Barr. Okay.
Senator Whitehouse. You might want to get out of that
habit.
[Laughter.]
Senator Whitehouse. You may have other things to look at.
General Barr. I'd like to have some fun in life.
Senator Whitehouse. If you think citations are fun, you are
going to----
[Laughter.]
Senator Whitehouse. You are not going to have the problem
some other nominees have had. My letter to you also asked about
the Bork Order that set out a series of protections for the
then-Independent Counsel operation. Do you have any objection
to any of those rules or principles applying, and should we see
those rules and principles, which I gave to you then, as being
more or less adopted into the statement that you made earlier
about your protection of the Mueller investigation from
political interference?
General Barr. You know, I looked at them. I think the
current regime is what I am happy with. In other words, I would
not--I would not change the current rule that we are--those
rules were put in place at the end of the Clinton
administration, and sort of, I think, reflects the back-on-back
experience of the Reagan/Bush years and then the Clinton years,
and then sort of Justice Department's thinking under the
Clinton administration as to how to balance all the equities.
And I think it is working well. So that is--that is----
Senator Whitehouse. Well, if there is anything that you
would disagree with in the so-called Bork Rules, I would ask
you to explain that in a----
General Barr. In a follow-up?
Senator Whitehouse. In a follow-up.
General Barr. Okay. Okay.
[The information appears as a submission for the record.]
Senator Whitehouse. Now, also in my letter to you, I
expressed my concern that Mr. Whitaker was paid $1.2 million
through what I consider to be a front group that has very
little reality to it, and that the funding that came to that
front group to pay him the million dollars came through another
entity that is essentially an identity-laundering operation
that has no independent business operation. And the result of
all of this is that somebody out there arranged to get over a
million dollars to Mr. Whitaker, and we have no idea who that
somebody is.
And as I mentioned to you in our conversation, I do not see
how the Department can do a proper recusal and conflict
analysis for somebody when the player who delivered the million
dollars is still hidden behind the curtain. Is that something
that you will help us fix?
General Barr. Well, first, you know, I do not think there
was anything wrong done or, at least----
Senator Whitehouse. Well, we do not know that yet because
we do not know what the facts are.
General Barr. Yes. Well, I am just saying just the facts
that you have said, you know, does not necessarily mean there
was anything wrong done. What you are saying is that if the
ultimate financial backers are behind some entity and the
current ethics laws require only the reporting of the entity,
you are not really sure where the money is coming from. And
that--you know, I think that that raises a very interesting
point that, I think, I would like to review with the ethics
people and experts and even OGE to talk about that because I--
the more I thought about it, the more I thought that the trick
is going to be deciding what kind of entities and how far back
you go because that can be said of a lot of different kinds of
entities.
Senator Whitehouse. Yes.
General Barr. And sometimes you have first----
Senator Whitehouse. I would submit to you that if the
Department's money laundering folks looked at this operation,
they would see it as almost amateurish and simple and something
quite easy to penetrate, and it would be quite easy simply to
ask Mr. Whitaker what he knew, to ask whoever is still at FACT,
if it even has any existence with Whitaker's departure, what
they knew, and to ask Donor's Trust to cough up the identity of
the donor, and then you can do your homework. And if they
refuse to do that, nothing guarantees anybody a job at the
highest levels of Government who is not willing to provide
those disclosures.
General Barr. Well, as I said, you know, one of the--my
first consideration always is, where do you--where do you draw
the line, and also what are the implications for other kinds of
entities because, you know, there are membership groups and
First Amendment interests----
Senator Whitehouse. Yes.
General Barr [continuing]. And you do not want to disclose
memberships and who support----
Senator Whitehouse. Yes. My point was, I think, if your
money laundering folks took a look at that, they would be able
to help show that this is something that looks a little bit
different than that. My time has expired and see you in the
second round. Thank you.
Senator Grassley [presiding]. Senator Sasse.
Senator Sasse. I believe Senator Ernst is filling in for
Senator Cruz next. Thank you, Mr. Chairman.
Senator Grassley. Okay with me.
Senator Ernst. Thank you.
Mr. Barr, I want to commend you for stepping forward. Thank
you very much. And I want to say thank you to your family as
well for being so supportive in this endeavor. I am really
pleased to have all of you here, so thank you for doing that.
Mr. Barr, later this month I do plan on reintroducing
Sarah's Law, which is a bill that would require the detention
of illegal aliens who have been charged with a crime that
resulted in the death or serious injury, bodily injury, of
another person. Now, that sounds pretty common sense, but I
will give you a little background.
This bill is named after Sarah Root. She was a resident of
Council Bluffs, Iowa, and Sarah was killed by an illegal alien
who was driving drunk. And that alien had a blood alcohol
content of more than 3 times the legal limit, yet he was
allowed to post bond and has not been seen since. It is
important to me that Congress act to close these loopholes in
our immigration system and do better to enforce the laws that
are already existing on the books. And I know that Attorney
General Sessions, he had a real passion for this, and he had a
strong record of trying to make sure that we are correcting
wrongs in the system.
How do you, as Attorney General, plan on making sure that
we are restoring the rule of law in our immigration system?
General Barr. Well, first, that sounds like a very
commonsensical bill----
Senator Ernst. Yes, thank you.
General Barr [continuing]. And something that I would
certainly be inclined to support. I think one of our major
problems, as the--as the President says, is that the
immigration laws just have to be changed, and to provide
sensible and commonsense ways of processing immigration and
claims of asylum. Right now, this goes--this goes all the way--
this goes back 27 years. We were facing exactly the same kind
of problem, maybe on a smaller scale.
But Congress has--where people are abusing the asylum
system, coming in, they are being coached as to what to say,
and then once they come in, we do not have the facilities to
keep them, and they are released into the population. And this
was a big abuse, as I say, 27 years ago, and it is getting--and
it has gotten worse. So we need to change the laws to stop that
kind of abuse and enable us to run a lawful immigration system
where we process people into the country who are entitled to
come into the country, and we keep out those that are flouting
our laws. And it is long overdue, and the President is right
that until we are able to do that, we are just not going to be
able to get control over illegal immigration. And it creates a
lot of unsafe conditions for many people.
Senator Ernst. Absolutely, and I appreciate your thoughts
on that. This is a very important issue. I think all of us
understand that immigration is so vital to our country, but it
has to be done in the right manner. And for those that are
causing bodily injury and death to those here in the United
States, we want to make sure that they are brought to justice.
And in this case, that illegal--undocumented was not brought to
justice, and I feel a lot of empathy for that family.
I will move into another situation that is really important
to Iowans. According to the U.S. Department of Health and Human
Services, after drug dealing, human trafficking is tied with--
arms dealing is the second-largest criminal industry in the
world, and it generates about $32 billion each year. The
Department of Justice has said that 83 percent of sex
trafficking victims identified in the United States are U.S.
citizens with the average age of a victim being between 12 and
14 years. Twelve and 14 years. Since 2007, there have been over
300 cases of human trafficking in Iowa alone, and Iowa is a
very rural State. Three hundred cases. That is very concerning
to my constituents back home.
What do you see as the main contributor to human
trafficking here in the United States, and then how can the DOJ
impact and combat and prevent those heinous crimes?
General Barr. This is a--this is an area that, frankly, was
not very much on the radar scope of the Department of Justice
when I was last there. I know it is--and it is an abhorrent
area of criminality that I know the Department and Attorney
General Sessions have been focused on and have put in place
various programs and entities within the Department to focus on
it and work with State and local law enforcement on it. I am
not sure what the--what the major contributor to it is. It is
an area that I am going to have to study when I get into the
Department and see what are the factors contributing to it.
Senator Ernst. Okay. I appreciate that, and as I mentioned
in my question as well, drugs and drug trafficking, that is
also a very, very big industry. And in Fiscal Year 2017, 65
percent of drug-related prison sentences in Iowa were related
to methamphetamine. We talk a lot about the opioid crisis, but
in Iowa it still is meth. In 2016, Iowa reported over 1,500
founded child abuse reports relating methamphetamine being
found in the child's body. According to the DEA, most of the
meth available in the United States is being produced in Mexico
and smuggled across our southern border.
How do you see the situation at our southern border
contributing to the prevalence of controlled substance use here
in the United States?
General Barr. Well, as been pointed out earlier, it is the
major avenue by which drugs come into the country. Heroin,
fentanyl, all the serious drugs are coming across that border.
And, again, I feel it is a critical part of border security
that we--that we need to have barriers on the border. We need a
barrier system on the border to get control over the border.
And I think--obviously there are some places that more of the
traffic comes over than others, but unless you have a system
across the border, you are not going to be able to deal with it
because you will just displace it. If you build a barrier in
one place, you will just displace it to another.
So we need a barrier system across the border to--part of
that is illegal immigration, but a big part of it also is
preventing the influx of drugs.
Senator Ernst. Absolutely. And you stated earlier that
really, the head of the snake lies outside of the United
States. Is there a way that DOJ can be working with additional
ideas, methodology with other departments that you might think
would help?
General Barr. Yes. You know, this is an area--again,
because I am out of the Government, I do not know how it is
functioning, how the drug war is being coordinated. But I think
Justice can play a big role in pushing for partners like the
State Department, Defense Department, the intelligence
agencies, and so forth to help deal with this. It is not, to
me, not just a law enforcement problem. It is a national
security problem.
Senator Ernst. Yes. And you mentioned, as well, the
situation on the border: where we do need barriers in place to
control the influx of, whether it is drugs, human trafficking,
gun trafficking, so forth. Do you believe that sanctuary cities
play a role in harboring some of those activities?
General Barr. Yes, I do. I think there are a number of sort
of--you know, of factors that have a hydraulic effect in that
they pull people into the United States or induce them to
make--you know, take the hazards of coming into the United
States and coming up hundreds of miles through Mexico and so
forth. And things like sanctuary cities, where they feel that
they will be able to come up and hide and be protected is one
of those factors that I think is irresponsible because it
attracts the illegal aliens coming in. And obviously I think
that the main problem with sanctuary cities is that they are
not giving us information about criminals that they have in
their custody.
This is not chasing after, you know, families or anything
like that. This is going after criminals who the State and
local law enforcement have in custody and not allowing us to
take custody of them and get them out of the country. That is
the problem with sanctuary cities.
Senator Ernst. Correct, which could be the situation with
Edwin Mejia, who killed Sarah Root. So we would love to see
that young man brought to justice. Thank you very much for your
time.
Chairman Graham [presiding]. Thank you.
Just to follow up on that with--Senator Klobuchar. Do not
count this against her time.
So you are saying that you want access to people who have
committed crimes or are accused of committing crimes outside of
a status violation. Is that what----
General Barr. That is right, Senator.
Chairman Graham. Senator Klobuchar.
Senator Klobuchar. Thank you.
Thank you, Mr. Barr. I take it as a positive that your
grandson has gotten out a pen and a pad of paper to take notes
during my questions.
[Laughter.]
Senator Klobuchar. I am also impressed by your daughters
and that they all chose to go into public service. But as you
know, employees of the Justice Department now are either
furloughed or they are working without pay. And I have talked
to a number of them at home, and it is an outrage. Very
briefly, what do you have to say to them?
General Barr. I would--I would like to see a deal reached
whereby Congress recognizes that it is imperative to have
border security, and that part of that border security as a
commonsense matter needs barriers.
Senator Klobuchar. And you are aware that in the
comprehensive Senate immigration bill that we passed, there was
literally billions of dollars for border security back in 2013?
General Barr. I am generally aware of that.
Senator Klobuchar. And that, also--we had an agreement
earlier last year which would allow the DREAMers to stay
legally that also had money for border security?
General Barr. The point is, we need money right now for
border security----
Senator Klobuchar. Yes, but we have----
General Barr [continuing]. Including a--including barriers,
and walls, and slats, and other things.
Senator Klobuchar. Yes.
General Barr. Anything that makes sense in different--in
different areas of the border.
Senator Klobuchar. Okay. In different areas. That is a good
point. So President George H.W. Bush said back in 1980 that he
did not want to see 6- and 8-year-old kids being made to feel
that they are living outside the law, and you were his Attorney
General. He also said that immigration is not just a link to
America's past, but it is a bridge to America's future. Do you
agree with those statements?
General Barr. Yes. I think--as I said, I think legal
immigration has--we have a great system--I think it needs
reforming, but legal immigration has been good for the United
States. It has been great for the country.
Senator Klobuchar. And that is why we were trying to work
on that comprehensive reform. I want to just briefly turn to
FBI leadership. The President has made statements accusing the
FBI of making politically motivated decisions. Many of us up
here and in the Senate have confidence in Director Wray and the
leadership at the FBI and believe they can do their jobs
without politics getting in the way. Do you agree with that?
General Barr. I am looking--if I am confirmed, I am looking
forward to getting to know Chris Wray. From what I know, I
think very highly of him.
Senator Klobuchar. Okay. Thank you. In the memo from back
in June--the one comment that Senator Grassley made, he talked
about how much the Mueller investigation was costing. And I
actually did a little Googling here, and there was a CNBC
report that it actually could bring in more money than it costs
because of the wealthy people being prosecuted, that Manafort's
assets could be well over $40 million. I do not know if that
includes that ostrich jacket. But do you think that is possible
based on your experience with white-collar crime?
General Barr. I do not know enough about it.
Senator Klobuchar. Okay. In your memo, you talked about the
Comey decision, and you talked about obstruction of justice,
and you already went over that, which I appreciate. You wrote
on page 1 that a President persuading a person to commit
perjury would be obstruction. Is that right?
General Barr. Yes.
Senator Klobuchar. Okay.
General Barr. Well, you know, any person who persuades
another----
Senator Klobuchar. Any person.
General Barr. Yes.
Senator Klobuchar. Okay. You also said that a President or
any person convincing a witness to change testimony would be
obstruction. Is that right?
General Barr. Yes.
Senator Klobuchar. Okay. And on page 2, you said that a
President deliberately impairing the integrity or availability
of evidence would be an obstruction. Is that correct?
General Barr. Yes.
Senator Klobuchar. Okay. And so, what if a President told a
witness not to cooperate with an investigation or hinted at a
pardon?
General Barr. You know, I would have to know the specific--
I would have to know the specific facts.
Senator Klobuchar. Okay. And you wrote on page 1 that if a
President knowingly destroys or alters evidence, that would be
obstruction.
General Barr. Yes.
Senator Klobuchar. Okay. So, what if a President drafted a
misleading statement to conceal the purpose of a meeting? Would
that be obstruction?
General Barr. Again, you know, I would have to know the--I
would have to know the specifics.
Senator Klobuchar. You would seek the advice of career
ethics officials in the Department of Justice for any recusal,
and I appreciate that. And you said in the past that you
commended Attorney General Sessions for following the advice of
those ethics lawyers, but you did not commit today to following
that advice. Is that right?
General Barr. No, I did not--I did not commend him for
following the advice. As the Agency had, he makes his--he is
the one responsible for making the recusal decision. I do not
know why he said--locked himself into following the advice.
That is an abdication of his own responsibility.
Senator Klobuchar. So what did you think about what Acting
Attorney General Whitaker did when he rejected the Justice
Department's ethics advice to recuse himself out of an
abundance of caution?
General Barr. I have not seen the advice he got, and I do
not know the specific facts. But an abundance of caution
suggests that it could have gone either way.
Senator Klobuchar. You have committed to recuse yourself
from matters involving the law firm where you currently work.
Are you aware of any of your firm's clients who are in any way
connected to the Special Counsel's investigation?
General Barr. I am not--I am not aware. You know, I--to
tell the truth, I am Of Counsel there, and I have one client
which I am representing, and I do not pay very much attention
to what else is going on.
Senator Klobuchar. Okay. Well, you can also supplement
that.
General Barr. Yes, I will supplement my answer.
Senator Klobuchar. Okay. No problem.
[The information appears as a submission for the record.]
Senator Klobuchar. Will you commit to make public all of
the report's conclusions--the Mueller report--even if some of
the evidence supporting those conclusions cannot be made
public?
General Barr. You know, that certainly is my goal and
intent. It is hard for me to conceive of a conclusion that
would, you know, run afoul of the regs as currently written.
But that is certainly my intent.
Senator Klobuchar. Secure elections. You and I had a talk
about that in my office. Do you think backup paper ballots are
a good idea? This is a bill that Senator Lankford and I have
introduced with Senator Graham and Senator Harris.
General Barr. Yes, I do not know what is a good idea and
what is a bad idea right now because I have not gotten into
this area. But----
Senator Klobuchar. Okay. Well, I will just tell you, backup
paper ballots is a good idea.
General Barr. Okay.
Senator Klobuchar. And we can talk about it later as well
as----
General Barr. Yes.
Senator Klobuchar. Audits, along the lines of voting, State
election officials in North Carolina, as you know, contacted
the Justice Department about the integrity of their elections.
The Justice Department may have failed to take action in a
timely manner. What steps would you take to make sure these
failures do not occur again?
General Barr. Not specifically with respect to North
Carolina. You are talking generally.
Senator Klobuchar. Yes.
General Barr. Yes. Well, as I say, I want to make one of my
priorities the integrity of elections. And so, this is not an
area I have been involved with deeply before. And when I get to
the Department if I am confirmed, I am going to start working
with the people and making sure that those kinds of things do
not happen.
Senator Klobuchar. Part of this, of course, is also voting
rights and our concern about some of the changes in Department
policy. And I hope you will seriously look at that because the
last thing we should be doing is suppressing voting, and that
is what we have been seeing under this current administration.
My dad was a reporter, so I grew up knowing the importance of a
free press. We obviously have the tragic case of a journalist
who worked right here at The Washington Post, Jamal Khashoggi,
and it is a particular concern. So I want to ask you something
I asked Attorney General Sessions. If you are confirmed, will
the Justice Department jail reporters for doing their jobs?
General Barr. I think that--you know, I know there are
guidelines in place, and I can conceive of situations where,
you know, as a--as a last resort and where a news organization
has run through a red flag or something like that, knows that
they're putting out stuff that will hurt the country. There
might be a--there could be a situation where someone would be
held in contempt, but----
Senator Klobuchar. Well, Attorney General Sessions had said
he was going to look at potentially changing those rules at one
point, so I would like you to maybe respond in writing to this
because that was very concerning.
[The information appears as a submission for the record.]
Senator Klobuchar. And last, when you and I were in my
office, we talked about your work with Time Warner with this
major merger on appeal from the Justice Department. And I just
wanted you to commit today to me in the office that you would
recuse yourself from any matters regarding that appeal.
General Barr. Absolutely.
Senator Klobuchar. Okay. And, as you know, you were on the
board of Time Warner at the time, and you signed a sworn
affidavit questioning whether the Justice Department's decision
to block the merger was politically motivated, ``given''--and
this is from the affidavit--``the President's prior public
animus toward the merger.'' Are you talking here about his view
on CNN? What did you mean by ``prior public animus''?
General Barr. I am sorry. Could you repeat that?
Senator Klobuchar. Sure. You were on the board of Time
Warner, and you signed a sworn affidavit questioning whether
the Justice Department's decision to block the merger was
politically motivated, ``given the President's prior public
animus toward the merger.'' And so, what did you mean by that?
General Barr. I mean that the affidavit speaks for itself,
and that at that meeting I was concerned that the Antitrust
Division was not engaging with some of our arguments, and I got
concerned that they were not taking the merits as seriously as
I would hope they would. But I have no--I am not sure why they
acted the way they did.
Senator Klobuchar. Okay, very good. And I will ask you more
on antitrust policy-wise in the second round, and I appreciated
the discussion we had on that. It is very important. Thank you
very much.
General Barr. Okay.
Chairman Graham. Thank you.
Senator Hawley did a good thing by allowing Senator Ernst
to go because no good deed goes unpunished around here, but you
do have a credit with the Chairman, so I appreciate that.
Senator Cruz, you are next.
Senator Cruz. Thank you, Mr. Chairman.
Thank you, Senator Hawley, as well, and welcome to the
Committee.
Welcome to all the new Members of the Committee.
And congratulations, Mr. Chairman. We are looking forward
to the Lindsay Graham Chairmanship of Judiciary, and I am sure
if----
Chairman Graham. They will make a movie about it, I am
sure.
Senator Cruz. I am certain whatever else happens, it will
not be boring.
Welcome, Mr. Barr. Congratulations on your nomination yet
again. And let me say, thank you. You and I have visited before
about this, but the past 2 years have been a difficult time at
the Department of Justice, and you and I--and many on this
Committee--hold the Justice Department in very high esteem,
indeed, I would even say revere the Department and its century-
long tradition of enforcing the law without regard to party and
without regard to partisanship, and I commend you for your
willingness to go back and serve once again. I think that is a
good step for the Department, and a good step for strengthening
the Department.
You know, I would note, 27 years ago, when you did this
previously, when you were last nominated to be Attorney
General, and I think you may have been about Liam's age at the
time, it was a different time. Then-Chairman of the Judiciary
Committee, Joe Biden, said at the time, that he found you to
be, quote, ``honest,'' and that you, quote, ``understand and
are committed to the dual responsibility of the office of the
Attorney General.'' Chairman Biden also said, that, quote,
``This commitment to the public interest above all else is a
critical attribute in an Attorney General, and I will vote to
confirm Mr. Barr.''
Senator Ted Kennedy likewise noted your dedication to
public service.
Senator Fritz Hollings said, quote, ``Mr. Barr has a
distinguished academic background, an impressive experience in
the private sector, as well as in public service. Most
important, Bill Barr is a known quantity. He has done a truly
outstanding job as Deputy Attorney General for the last year-
and-a-half, during which time he has worked with many of us in
this body, earning our respect for his professionalism and
confidence.''
And Senator Kohl said, that, quote, ``Your willingness to
discuss the issues is a refreshing change in the confirmation
process, and it would be wise of future nominees to follow Mr.
Barr's example.''
At that hearing, you were confirmed by this Committee
unanimously, as you had been twice previously for senior
appointments to the Department of Justice.
Now, we all recognize that was a different time. I think,
given the environment we are in now, few expect this Committee
vote to be unanimous. But I would hope those voices from the
past, from Democrats who were respected by Members of this
Committee, will be heard today as well.
One of the questions you were asked, if I might paraphrase,
was why on earth would you take this job? And your answer, if I
recall correctly, concerned your commitment both to the
Department and the rule of law.
Would you tell this Committee, in your judgment, why the
rule of law matters? Why is that important?
General Barr. Well, you know, as our Framers said in the
Federalist Papers, the art of setting up a government is to
have a government that is strong enough to perform the
functions that the government has to perform while at the same
time not being so strong that it can oppress its own people,
and the rule of law ensures precisely that the Government does
not oppress its own people.
And when people are accused of wrongdoing, our system
essentially gives them the benefit of the doubt and gives them
rights to bring them up essentially to the same level as the
Government, and the process we go through is there to ensure
that justice is not arbitrary but it is done according to a set
of rules, and the basic protection that we have is that the
rule that applies to one applies to all. That, at the end of
the day, is what keeps us all free. That is the protection of
individual freedom.
And to me, the rule of law is exactly that, that we do not
allow special rules to go into effect for a particular
individual. A rule has to be universalized. Anything we do
against A has to be universalized across everyone who is
similarly situated. That is our basic protection, and to me
that is what the rule of law is.
Senator Cruz. So, I do not want to see a Republican
Department of Justice or a Democratic Department of Justice. I
do not want to see a Republican FBI or a Democratic FBI. What
we should see, what the American people have a right to see and
a right to expect, is a Department of Justice that is committed
to and faithful to the Constitution and the laws regardless of
political party, and a corollary to that is a Department that
is willing to hold anyone who commits criminal conduct
accountable regardless of that individual's political party or
whatever partisan interest there might be. Would you agree with
that characterization?
General Barr. Yes, Senator.
Senator Cruz. I would note, as well, during the previous
administration there was concern by many--including me--on this
Committee, that the previous administration, and in particular
the IRS, had targeted individual citizens and citizen groups
for exercising their First Amendment rights and had abused its
power in doing so.
In the current Justice Department, I have been dissatisfied
with the degree of scrutiny they have given to that potential
abuse of power, and I am going to ask you going forward, if you
are confirmed, to examine that conduct and ensure that if laws
were broken, that individuals are held accountable.
Let me shift to a different topic. One of the most
important safeguards of our liberties is the Bill of Rights,
and the Attorney General has a unique responsibility defending
the Constitution. Can you share for this Committee, in your
view, the importance of free speech, of the protections that
the First Amendment provides to Americans to speak, and even to
speak on unpopular or politically disfavored topics?
General Barr. I think free speech is at the core of our
system because we believe in the democratic process and power
shifting through the processes of voting by an informed
electorate, and free speech is foundational to the ability to
have a democratic process. The Framers, I think, believed that
the dialectic, the clashing of ideas in the public marketplace,
is the way to arrive at the truth, and that is one function.
Another function of free speech is that it is the
substitute for other means of settling differences. In some
ways it is a safety valve. People are allowed to speak their
mind and persuade their neighbors of their position, and I
think that performs a very important function in keeping the
peace within a community. And if speech is suppressed, it can
lead to the building up of pressures within society that
sometimes can be explosive.
Senator Cruz. How about your views on religious liberty,
and would you share your thoughts on the importance of the
religious liberty protections in the First Amendment in terms
of protecting our diverse and pluralistic society?
General Barr. Yes. I think the Framers believed that our
system--they said that our system only works if the people are
in a position to control themselves. Our Government is an
experiment in how much freedom we can allow the people without
tearing ourselves apart, and they believed fewer laws, more
self-control; and they believed that part of that self-
control--and I know there are many people here who disagree,
not here but in our society who disagree. But they believed
part of that self-control ultimately came from religious
values. I think it is an important underpinning of our system
that we permit--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.
Senator Cruz. A final question. The Department of Justice
is charged with defending the United States, but that does not
mean that the Department of Justice always must argue for
maximum Federal power. There are important restraints on
Federal power, whether civil liberties protections in a
criminal context, whether the Takings Clause, or whether the
Tenth Amendment and federalism.
Can you briefly share your thoughts on the appropriate
balance of respecting limitations on Federal power?
General Barr. Well, as you say, the Constitution has many
different forms of restraint on Federal power. Part of it is,
in fact, the separation of powers within the Federal
Government. A part of it is the balance between the Federalist
system we have and the central Government and respecting the
rights of the States and local communities. And part of it is
the Bill of Rights, that on certain topics it constrains the
role of Federal Government, and those are all important checks
on Federal power.
I am concerned about our country becoming just a unitary
state that we try to govern centrally, 350 million people. I
think a lot of our current tensions in society are because we
are turning our back on the Federalist model. There are certain
things that have to be protected by the Federal Government.
There are no ifs, ands, or buts about that. But the more we can
decentralize decisionmaking, the more we can allow people real
diversity in the country of approaches to things, I think we
will have less of an explosive situation.
Senator Cruz. I very much agree.
Thank you, Mr. Barr.
Chairman Graham. The freedom of speech has to be balanced
by the freedom to question.
Senator Coons.
Senator Coons. Congratulations, Chairman Graham. I look
forward to working with you in this Congress.
And thank you, Mr. Barr, to you and your family for their
service to our country through Federal law enforcement and the
Department of Justice.
You just faced some questioning from Senator Cruz about
your own confirmation hearing back in 1991, and I would like to
take us back to a previous confirmation hearing which was at a
more similar time to today, 1973.
Senator Leahy asked you about the confirmation of Elliot
Richardson, President Nixon's nominee to be Attorney General.
That confirmation took place in the context of a similarly
divided period in American history where there was great
concern over the, at that point, ongoing Watergate
investigation. Elliot Richardson reassured the country by
making some important commitments during his confirmation
hearing before this Committee. Then-Senator Strom Thurmond
asked Richardson if he wanted a Special Prosecutor who would,
and I quote, ``shield no one and prosecute this case,
regardless of who is affected in any way, shape or form.''
Richardson responded, ``Exactly.''
Do you want Special Counsel Mueller to shield no one and
prosecute the case regardless of who is affected?
General Barr. I want Special Counsel Mueller to discharge
his responsibilities as a Federal prosecutor and exercise the
judgment that he is expected to exercise under the rules and
finish his job.
Senator Coons. Senator Kennedy followed up by asking
Richardson if the Special Prosecutor would have the complete
authority and responsibility for determining whom he prosecuted
and at what location. Richardson said, simply, ``Yes.'' Would
you give a similar answer?
General Barr. No. I would give the answer that is in the
current regulations, which is that the Special Counsel has
broad discretion, but the Acting Attorney General, in this case
Rod Rosenstein, can ask him about major decisions, and if they
disagree on a major decision, and if, after giving great weight
to the Special Counsel's position, the Acting Attorney General
felt that it was so unwarranted under established policies that
it should not be followed, then that would be reported to this
Committee.
Senator Coons. Forgive me. I have got only 7 minutes left.
I have a number of other questions. Let me just make sure I
understand you.
Senators asked Elliot Richardson what he would do if he
disagreed with the Special Prosecutor. Richardson testified to
the Committee the Special Prosecutor's judgment would prevail.
That is not what you are saying. You are saying----
General Barr. That is not--that is not----
Senator Coons. You are saying if you have a difference of
opinion with Special Counsel Mueller, you will not necessarily
back his decision. You might overrule it.
General Barr. Under the regulations, there is the
possibility of that. But this Committee would not--would be
aware of it.
You know, a lot of water has gone under the dam since
Elliot Richardson. A lot of different administrations of both
parties have experimented with Special Counsel arrangements,
and the existing rules, I think, reflect the experience of both
Republican and Democratic administrations and strike the right
balance. They are put together in the Clinton administration
after Ken Starr's investigation.
Senator Coons. That is right. So the current regulations on
the books right now prevent the Attorney General from firing
without cause the Special Counsel. They require misconduct,
dereliction of duty, incapacity, conflict. Will you follow that
standard?
General Barr. Of course.
Senator Coons. What if the President asked you to rescind
or change those Special Counsel regulations?
General Barr. I think those Special Counsel regulations
should stay in place for the duration of this investigation,
and we can do a postmortem then. But I have no reason to think
they are not working.
Senator Coons. So, most famously, when directed by
President Nixon to fire the Special Counsel, the Prosecutor
investigating Watergate, Richardson, refused and resigned
instead, as we all well know.
If the President directed you to change those regulations
and then fire Mueller, or simply directly fired Mueller, would
you follow Richardson's example and resign instead?
General Barr. Assuming there was no good cause?
Senator Coons. Assuming no good cause.
General Barr. I would not carry out that instruction.
Senator Coons. Let me bring us forward to your 1991 hearing
in front of this Committee. You explained at the time how you
would handle the BCCI case; and ironically, Robert Mueller, the
same individual, was at that point the head of the Criminal
Division, and you testified that you had directed Mueller to
spare no resources, use whatever resources are necessary and
pursue the investigation as aggressively as possible, and
follow the evidence anywhere and everywhere it leads.
Would you give similar direction to Robert Mueller today?
General Barr. I do not think he needs that direction. I
think that is what he is doing.
Senator Coons. You also said at that hearing that Robert
Mueller and that investigation had full cooperation, full
support, and carte blanche. Could he expect a similar level of
support from you as Attorney General?
General Barr. He will--as I said, I am going to carry out
those regulations, and I want him to finish this investigation.
Senator Coons. I think we all do, and I am encouraged by
things you have said about this and just want to make sure we
have had as clear a conversation as we can.
Attorney General Richardson also testified the relationship
between the President and the Justice Department should be
arm's length. You have said similar things about the importance
of shielding the Department from political influence.
Can you make a similar commitment to us to maintain an
arm's length relationship between the Justice Department and
the President regarding the Special Counsel investigation and
other investigations?
General Barr. Well, remember I said that there are like
three different functions generally that the Attorney General
performs? I think on the enforcement side, especially where
matters are of either personal or political interest to people
at the White House, then there would be--there has to be an
arm's length relationship. The White House Counsel can play a
constructive role in that as well.
Senator Coons. Let me ask, if the President asked for
information that could well be used to interfere with the
Special Counsel investigation to misdirect or curtail it in
some way, would you give it to him?
General Barr. There are rules on what kind of information
can flow and what kind of communications can go between the
White House, and I would follow those. But the basic principle
is that the integrity of an investigation has to be protected.
There are times where you can share information that would not
threaten the integrity of an investigation, for example when I
was Attorney General and we were investigating something that
related to President--someone who had a relationship with
President Bush. I could just orient them that there is going to
be a story tomorrow that says this, but in that particular
case, there was no chance that it would affect the
investigation. So sometimes judgment calls are necessary.
Senator Coons. If you learn that the White House, not
directly through you but through other means, was attempting to
interfere with the investigation, would you report that
information to the Special Counsel and to Congress?
General Barr. There are some conclusions in there about
interfering. If I thought something improper was being done,
then I would deal with it as Attorney General.
Senator Coons. Last, in that confirmation hearing back in
1973, then-Senator Birch Bayh of Indiana asked Richardson:
``Suppose the prosecutor determines it is necessary to get the
President's affidavit or to have his testimony personally.
Would that be the kind of determination he, the Special
Prosecutor, could make? '' Richardson said, ``Yes.''
Will you give a similar answer today that you will not
interfere with Special Counsel Mueller seeking testimony from
the President?
General Barr. I think, as I say, the regulations currently
provide some avenue if there is some disagreement. I think that
in order to overrule Mueller, someone would have to determine--
the Attorney General or the Acting Attorney General would have
to determine, after giving Mueller's position great weight,
that it was so unwarranted under established policies that it
should not be done. So that is the standard I would apply. But
I am not going to surrender the--the regulations give some
responsibility to the Attorney General to have this sort of
general--not day-to-day supervision, but sort of be there in
case something really transcends the established policies. I am
not surrendering that responsibility. I am not pledging it
away.
Senator Coons. What gives me pause and sort of led me to
this line of questioning, Mr. Barr, was that June 2018 memo you
sent to the Deputy Attorney General in which at one point you
state Mueller should not be permitted to demand the President
submit to interrogation about alleged obstruction. If the
Special Counsel wants to subpoena the President's testimony to
ask questions about obstruction, and you are supervising the
investigation, would you rely on that theory to block the
subpoena?
General Barr. Well, the question for me would be what is
the predicate, you know, and I do not know what the facts are.
I do not know what the facts are. If there was a factual basis
for doing it and I could not say that it violated established
policies, then I would not interfere. But I do not know what
the facts are.
Senator Coons. Well, if I might just in closing, Mr.
Chairman, we are in this unique situation where you have known
Robert Mueller for 30 years. You said you respect and admire
his professionalism, his conduct. He is been entrusted by you
with significant, complex investigations in the past. There is
no reason to imagine, since he is the person who would know the
facts, that he would not be acting in an inappropriate way. So
it is my hope, even my expectation, that you would trust Robert
Mueller to make that decision about whether to compel the
President to testify in an appropriate way, and that he would
not face any interference.
Thank you for your testimony today. I look forward to the
next round.
General Barr. Thank you.
Chairman Graham. Senator Sasse.
Senator Sasse. Thank you, Mr. Chairman, and congratulations
on your new calling here. While I might have career advice, I
will not do it on camera. We want to know if you are taking
notes for your cousins about career advice that we will ask you
later.
General, congratulations on your nomination, and thanks for
your past service. I had planned to ask you for some pledges
related to the Mueller investigation in private to me. In
public today, I think you have already done that.
How should the American people think about what the Mueller
investigation is about?
General Barr. I think that there were allegations made of
Russian attempts to interfere in the election, and there were
allegations made that some Americans were in cahoots with the
Russians, and the word that is now being used is collusion. As
I understand it, Mueller is looking into those allegations.
Senator Sasse. You know, a lot of the media summary of the
investigation starts with people's views and who they voted for
in the 2016 presidential election. And for those of us who
spend a lot of time reading intelligence reports--a handful of
us on this Committee are about to leave to go to an
intelligence briefing--what Russia is doing to the U.S. is big
and broad and not constrained to the 2016 election. And
increasingly, it feels like the American people reduce Russia
to just how you thought about the 2016 presidential election.
So, since you will have serious supervisory
responsibilities over parts of the intelligence community, is
Putin a friend or a foe, and what are his long-term objectives
for the U.S.?
General Barr. Well, I do not hold myself out as a foreign
policy expert, but I think that he is--I think the Russians are
a potent rival of our country, and his foreign policy
objectives are usually directly contrary to our goals. I think
he wants to weaken the American alliances in Europe, and he
also wants to become a player in the Middle East, more of a
player in the Middle East. A lot of his foreign policy
objectives are at odds with ours.
At the same time, I think the primary rival of the United
States is China. I think, you know, Russia is half the size it
was when we were facing them at the peak of the cold war. Their
economy is--long-term prognosis is nowhere near China's.
I also feel that part of what Russia is up to is trying to
hold onto Ukraine and Belorussia in their orbit. But I am
concerned that the fixation on Russia not obscure the danger
from China.
Senator Sasse. I want to ask you some China questions as
well. I want to ask about your role on the President's
Intelligence Advisory Board.
But sticking with Russia for a minute, does Putin have any
long-term ideological alignment with the U.S., or does he have
other objectives, trying to sow discord broadly here?
General Barr. You know, I am not an expert on this area,
but I think there are--I think there may be some potential
areas where our interests could be aligned.
Senator Sasse. But when he interferes here, does he have
long-term interests in the success of one or another political
party, or does he have specific interests in sowing chaos and
discord to make Americans distrust one another? And one of the
reasons I ask is, because I would love to have you say in
public some of what you said to me, about at the end of this
investigation, what happens next. Are you concerned that when
the Mueller report is received, quite apart--the narrowest
pieces--you know where I am headed.
General Barr. So, I mean, I think that the basic
vulnerability of the United States in the age in which we live,
the internet age, the globalization of information and so
forth, is the vulnerability that we are seeing, which is people
can create doubt, undercut confidence in our election process,
and also torque our public discourse in ways that we find hard
to perceive, and this has long-term danger for the United
States and the survival of a democratic society like ours. And
so I hope that whatever the outcome of the Mueller
investigation, that we view this as a bigger problem of foreign
interference in our elections, which is why I said it was one
of my priorities, and it is not just the Russians. It is other
countries as well, and we have to focus on that. We have to
ensure that we are doing all we can.
I am not sure all of that is defensive either. I mean, in
terms of law enforcement, I think we have to look at all
options, including sanctions and other options to deter
organized efforts to interfere in our elections.
Senator Sasse. So you have no reason to doubt any aspect of
the intelligence community's composite assessment about Russian
efforts in the 2016 election?
General Barr. I have no reason to doubt that the Russians
attempted to interfere in our election.
Senator Sasse. And Dan Coats, the National Intelligence
Director, has testified in public and has said in different
media contexts that Russia is already plotting for the 2020
elections in the U.S. You have no reason to doubt that?
General Barr. I have not--you know, I have not seen those
reports. I had reviewed the reports about the 2016, but I have
no reason to doubt it.
Senator Sasse. And can you explain what your role is on the
President's Intelligence Advisory Board?
General Barr. I am actually a consultant. I am an adviser
on sort of legal issues. Obviously, I am stepping down from
that position if I am confirmed. But I have been just advising.
I am not a member of the board. I am on the CIA's External
Advisory Board and, you know, have been participating on that
as well.
Senator Sasse. When you talk about the long-term Chinese
efforts to also sow different kinds of discord in the U.S.,
obviously not crossing any classified lines here, but long-term
interests that other countries have in strategic rivalry with
the U.S. to use gray space and information operations warfare
against us, how do you see the role of the National Security
Branch, and the FBI more broadly, fitting into the larger IC,
and what responsibilities do you see would be on your priority
list as you arrive at the Department?
General Barr. Well, you know, I have been out of the
Department for so long. You know, I am not really sure about
how that is currently being handled. You know, I also think
that we have had our attention focused on terrorism, which we
cannot let up. And, but I want to make sure that--and I am sure
Chris Wray is on top of this and, you know, looking forward to
talking to him about it. But making sure that the Bureau is
playing, you know, a central role in combating, you know,
efforts by foreign countries to engage in those kinds of
hostile intelligence activities.
Senator Sasse. You have unpacked a couple of times today
the three different roles or functions of the Attorney General.
Could you do that one more time in summary? And then I want to
ask you a particular question. What are those three roles, as
you see them?
General Barr. I see the three roles. In 1789, the first--
set up the office. The first role was providing advice to the
President and the Cabinet and representing the United States in
cases before the Supreme Court. And I see the three roles as
providing advice, being a policy adviser on legal and law
enforcement policy issues, and the top law enforcement officer
enforcing the laws.
Senator Sasse. And so in no way would the job of protecting
the President be a subset of any of those three jobs? The
language of ``protecting the President'' has been used
occasionally in this administration to refer to the way it was
conceived of how Eric Holder did his job. Is there any sense in
which it is the Attorney General's job to protect the
President?
General Barr. No, that was not included in my description
of the role of the Attorney General. Obviously, as a policy--in
the policy arena, the Attorney General is someone who should be
sympathetic to the administration and its policy goals.
Senator Sasse. But there are circumstances where those
three roles could come into some internal conflict, or you
could be asked to do things that do not align with them. And
there is probably a list that you have--I will not ask you to
enumerate it here. But there is probably a list of issues where
you could imagine needing to resign because of what you were
asked to do in the space of so-called protecting the President?
General Barr. If I--if I was ever asked to do something
that I felt was unlawful and directed to do that, I would not
do it, and I would resign rather than do it. But I think that
should be true of every officer who serves anywhere in
Government, whatever branch.
Senator Sasse. I am at time. But I had a series of
questions related to some of what Senator Ernst said about
Sarah's Law. She and I have jointly been active in that space.
The tragic case of the young woman that she was talking about
from Council Bluffs was actually--it occurred in Omaha.
And Edwin Mejia, her killer, is still at large, and both
the last administration and this administration have not
prioritized that enough in our understanding. And I imagine
that Senator Ernst and I will follow up with a letter to you on
that as well.
Thank you.
Chairman Graham. Senator Blumenthal.
Senator Blumenthal. Thanks, Mr. Chairman. I congratulate
you, and I look forward to working with you and congratulate
also the new Members of our Committee that have joined us.
And thank you very much, Mr. Barr, for being here today,
for your past record of public service, and I hope I am perhaps
the last to make reference to your grandson by saying that if
he makes it through this hearing today, he can have any job he
wants in this building.
[Laughter.]
Senator Blumenthal. Let me say first that as a former
United States Attorney, I share your allegiance and admiration
for the Department of Justice and, equally so, the Federal
Bureau of Investigation, and I know that you respect Mr. Wray,
the current Director. But I think you would agree with me that
the FBI is probably one of the best, if not the most
professional, accomplished, skilled, and dedicated law
enforcement agencies in the world. Would you agree?
General Barr. Yes, Senator.
Senator Blumenthal. And I hope that the President agrees
with you and perhaps shares that view more publicly in the
future.
When the FBI begins a counterintelligence investigation, if
it is of the President of the United States for working with a
foreign adversary, that decision would be subject to multiple
levels of review within the FBI. Correct?
General Barr. I assume. I do not know what rules were in
effect at the time.
Senator Blumenthal. Well, in your experience, it would be?
General Barr. Yes. Yes.
Senator Blumenthal. And you have no reason to think that
those rules have changed?
General Barr. I do not know what the practice was. There
was----
Senator Blumenthal. And almost certainly in that kind of
extraordinary investigation, you would agree with me it would
be extraordinary for the FBI to be investigating the President
for working with a determined foreign adversary. There probably
would be information shared with the Deputy Attorney General or
the Attorney General. Agree?
General Barr. I would hope so. The reason I am hesitating
is because some of these texts that we have all read are so
weird and beyond my experience with the FBI, I do not know what
was going on.
Senator Blumenthal. Well, these reports are stomach-turning
in terms of the absolutely stunning and unprecedented kind of
investigation that they reflect. You would agree?
General Barr. You mean the texts are stomach-turning?
Senator Blumenthal. The reports of the investigation of the
President.
General Barr. I am not sure what you are talking about when
you say, ``the reports of the investigation.''
Senator Blumenthal. The reports that the FBI opened an
investigation of the President for working with a foreign
adversary, Russia.
General Barr. And what is stomach-turning about that?
Which--what is stomach-turning, the allegation against the
President----
Senator Blumenthal. That that kind of----
General Barr [continuing]. Or the fact that an allegation
would be made and be under investigation?
Senator Blumenthal. Well, let me move on. I want to talk
about transparency. Would you commit--will you commit to this
Committee that you will not allow the President or his
attorneys to edit or change the Special Counsel report before
it is submitted to Congress or the public?
General Barr. I already said that I would not permit
editing of my report, whatever report I--or whoever is the
Attorney General, makes.
Senator Blumenthal. And will you commit that you will come
to Congress and explain any deletions or changes that are made
to that report before it is issued?
General Barr. Okay. So there are different reports at work
here. Which report are you--there are two different reports----
Senator Blumenthal. I am talking about the Special Counsel
report.
General Barr. Okay. Well, under the current regulations,
the Special Counsel report is confidential. The report that
goes public would be a report by the Attorney General.
Senator Blumenthal. Will you commit that you will explain
to us any changes or deletions that you make to the Special
Counsel report that is submitted to you in whatever you present
to us?
General Barr. I will commit to providing as much
information as I can, consistent with the regulations. Are you
saying, for example, that if information is deleted that would
be like, for classification purposes, I would identify that and
things like that?
Senator Blumenthal. Well, that you will commit to
explaining to us what the reasons are for your deleting any
information that the Special Counsel includes that you are
preventing us--or the public--from seeing?
General Barr. That would be my intent. I have to say that
the rules--I do not know what kind of report is being prepared.
I have no idea. And I have no idea what Acting Attorney General
Rosenstein has discussed with Special Counsel Mueller.
If I am confirmed, I am going to go in and see what is
being contemplated and what they have agreed to and what their
interpretation--you know, what game plan they have in mind.
Senator Blumenthal. Will you permit the Special Counsel----
General Barr. But my purpose is to get as much accurate
information out as I can, consistent with the regulations.
Senator Blumenthal. Well, the regulations and rules give
you extraordinarily broad discretion. And I am hoping, and I am
asking you to commit, that you will explain to us information
that you have taken out of that Special Counsel report.
And, I also want to ask you about restrictions on the
Special Counsel. Will you commit that you will allow the
Special Counsel to exercise his judgment on subpoenas that are
issued and indictments that he may decide should be brought?
General Barr. As I said, I will carry out my
responsibilities under the regulations. Under the regulations,
whoever is Attorney General can only overrule the Special
Counsel if the Special Counsel does something that is so
unwarranted under established practice. I am not going to
surrender the responsibilities I have.
I would--you would not like it if I made some pledge to the
President that I was going to exercise my responsibilities in a
particular way. And I am not going to make the pledge to anyone
on this Committee that I am going to exercise it in a
particular way or surrender it.
Senator Blumenthal. Will you allow the Special Counsel to
exercise his judgment as to what resources are necessary? Will
you meet those needs for resources?
General Barr. That would be my expectation. I think, you
know, I mean, if you believe the media, they are sort of
starting to reduce their resources. So I would not expect that
would be a problem.
Senator Blumenthal. Will you allow the Special Counsel to
exercise his judgment as to what the scope should be? The
President has talked about red line around finances. Will you
allow the Special Counsel to exercise his judgment about what
the scope should be, even if the President says that there
should be red line?
General Barr. I think the scope of the investigation is
determined by his charter from the Acting Attorney General. And
if he wants to go beyond that charter, I assume he would come
back and talk to whoever the Attorney General is about that.
Senator Blumenthal. Will you impose any restrictions on
other prosecutors who are also investigating the President? As
you are well aware, in the Southern District of New York, the
President has been named, in effect, as an unindicted co-
conspirator. The Eastern District of Virginia has an
investigation that is relevant to the President. Will you
impose any restrictions on those prosecutors?
General Barr. The Office of Attorney General is in charge
of the--with the exception of the Special Counsel, who has
special rules applicable to him--is in charge of the work of
the Department of Justice.
Senator Blumenthal. But you have a responsibility to allow
prosecutors to enforce the law.
General Barr. I have a responsibility to use my judgment
and discretion that are inherent in the Office of Attorney
General to supervise, and I am not going to go around saying,
well, this U.S. Attorney, or that U.S. Attorney, I am going to
defer to. And----
Senator Blumenthal. Well, you referred earlier about the
possibility of firing----
General Barr. Excuse me?
Senator Blumenthal [continuing]. A United States Attorney.
Would you allow the President to fire a United States Attorney
and thereby stop an investigation?
General Barr. I would not stand by and allow a U.S.
Attorney to be fired for the purpose of stopping an
investigation, but the President can fire a U.S. Attorney. They
are a presidential appointment.
Senator Blumenthal. But the President should have a cause
beyond simply stopping an investigation for firing a United
States Attorney, even if he or she is a political----
General Barr. Well, as I said, I would not stand by and
allow, you know, an investigation to be stopped if I thought it
was a lawful investigation. I would not stand by for that. But
the President is free to fire his, you know, officials that he
has appointed and----
Senator Blumenthal. I want to ask a different--a question
on a different topic. You have said that, and I am quoting you,
``I believe Roe v. Wade should be overruled.'' You said that in
1991.
Do you still believe it?
General Barr. I said in 1991 that I thought, as an original
matter, it had been wrongly decided. And that was, what--within
18 years of its decision? Now it has been 46 years, and the
Department has stopped--under Republican administrations
stopped as a routine matter asking that it be overruled, and I
do not see that being turned--you know, I do not see that being
resumed.
Senator Blumenthal. Would you defend Roe v. Wade if it were
challenged?
General Barr. Would I defend Roe v. Wade? I mean, usually
the way this would come up would be a State regulation of some
sort and whether it is permissible under Roe v. Wade. And I
would hope that the SG would make whatever arguments are
necessary to address that. I think the Justices, the recent
ones, have made clear that they consider Roe v. Wade an
established precedent, and it has been on the books 46 years.
Senator Blumenthal. And you would enforce the Clinic Access
Protection Act?
General Barr. Absolutely.
Senator Blumenthal. Thank you, Mr. Chairman.
Chairman Graham. Senator Hawley.
Senator Hawley. Thank you, Mr. Chairman.
Mr. Barr, congratulations on your nomination. Thank you for
being here.
You were eminently qualified for this position when you
were confirmed unanimously by this Committee 27 years ago, and
you are eminently qualified today. It is a pleasure to have you
here.
I wanted to start where Senator Blumenthal started as well,
with the reports about the FBI counterintelligence
investigation launched against the President, which I also find
to be stomach-turning, though perhaps for different reasons.
The New York Times report indicates that the FBI began the
probe in part because they were concerned about the President's
foreign policy stances, comments he made during the 2016
campaign about foreign policy, and the Republican Party's
official position on the Ukraine.
In your experience with the FBI, is it strange to have a
counterintelligence investigation begun because members of that
Bureau disagree with the foreign policy stances of a candidate
for President or a President of the United States?
General Barr. Yes.
Senator Hawley. The Supreme Court has been unequivocal that
the President--in our system of Government, the President
possesses, and I am going to quote now, ``the plenary and
exclusive power as the sole organ of the Federal Government in
the field of international relations, a power which does not
require as its basis--as a basis for its exercise an act of
Congress.''
That is the very famous Curtiss-Wright case. To your
knowledge, is that still good law?
General Barr. Yes.
Senator Hawley. And do you think that was rightly decided?
General Barr. Yes.
Senator Hawley. Let me ask you this: Would it concern you
as Attorney General if FBI agents were making decisions about
when and how to launch an investigation of an elected official
if it was in order to avoid being supervised or directed by
their agency leadership? Would that be concerning to you?
General Barr. Yes.
Senator Hawley. As is, I might just add, reported by The
New York Times.
Let me switch gears and ask you about another topic that
you mentioned a little bit earlier in the field when we were
talking generally about antitrust. This is something, you talk
about things that have changed in the 27 years since you were
last here, one of the things that has changed is the
extraordinary concentration of power in our economy in the
hands of a few corporations, no more so than in Silicon Valley,
which you referenced earlier today, and I just want to ask you
a little bit about that.
Big tech companies, like, for instance, Google and
Facebook, who have drawn much attention of late, pose
significant challenges not just for competition, but also for
the larger issues of privacy and the free flow of ideas. The
Justice Department has recently deferred to the FTC across this
range of issues, and while I am hopeful that Chairman Simons
will right the course here, the FTC has perhaps too often
allowed these companies, in my view, to violate privacy and
maybe antitrust laws without meaningful consequences.
Here is my question. What role do you think the Justice
Department has, working with the FTC or independently, to
address anti-competitive conduct, potential bias, and privacy
violations by these big tech companies?
General Barr. Well, obviously, competition is of central
concern to the Antitrust Division, and you know, there are, I
guess, concordats that have been reached between the FTC and
the Antitrust Division as to who has primary jurisdiction in
different areas. But I would like to weigh in to some of these
issues. I would like to have the Antitrust support that effort
to get more involved in reviewing the situation from a
competition standpoint.
I also am interested in the issue of privacy and the
question of who owns this data. And you know, it is not an area
that I have studied closely or become an expert in, but I think
it is important for the Department to get more involved in
these questions.
Senator Hawley. Just on the subject of ownership of data,
as you know, Facebook is currently subject to a 2011 consent
decree, as part of which it agreed not to release or share or
sell personal user information without the knowledge and
consent of its users. Facebook's CEO Mark Zuckerberg has
adamantly insisted under oath, as recently as April 10th of
2018, that on Facebook, users have complete control--those are
his words--over everything that they share.
However, as I am sure you are aware, recent media reports
have indicated that Facebook, in fact, routinely has shared
user information without users' consent or even knowledge. Now
the Justice Department has the authority to enforce the terms
of the 2011 consent decree and potentially to prosecute any
violation. Will you consider doing so?
General Barr. Because that is something that I might have
to get involved with and supervise if I am confirmed, I would
rather not make any comments about it right now.
Senator Hawley. Let me ask you this. These same technology
companies also control the flow of information, or, at least,
influence it, the flow of information to consumers to an
unprecedented degree. I mean, you have to go way back in
American history to find any analog, back to the paper trusts,
to find an analog of a group, small group of companies that
control the information and influence the news and its flow to
Americans to the extent that these companies do.
And there is growing evidence that these companies have
leveraged their considerable market power, if not monopoly
status, to disfavor certain ideological viewpoints,
particularly conservative and libertarian viewpoints. Do you
think the Department of Justice has authority under the
antitrust laws or consumer protection laws or other laws to
address bias by dominant online platforms?
General Barr. I would just say, generally, you know, I
would not think it would--I would have to think long and hard
before I said that it was really the stuff of an antitrust
matter. On the other hand, it could involve issues of
disclosure and other--and other--implicate other laws like
that.
Senator Hawley. Is there any point, do you think, at which
political bias could require response? And I am thinking, for
example, Harvard law professor Jonathan Zittrain has written
how Google or Facebook, for example, could manipulate their
algorithms to significantly swing voter turnout to favor a
candidate of their choice.
Would that sort of conduct require a response from the
Department?
General Barr. I would have to think about that. I am not
sure. You know, I would like to know more about the phenomena
and what laws could be implicated by it.
Senator Hawley. Let me ask you this. The Justice
Department's case against AT&T-Time Warner focused on how the
merged company would control or could control the distribution
of information to discriminate against rival content. And I
understand that you, of course, are recusing yourself from that
matter.
But generally speaking, generally speaking, do you see
similar concerns regarding how dominant Silicon Valley firms
could use their market power in social media or search to
discriminate against rival products or services or viewpoints?
General Barr. Yes. And making clear that what I am saying
now has no application to, you know, the transaction we just
talked about and talking about the other companies, yes.
Senator Hawley. Let me ask you more broadly about the
question of antitrust and mergers. And you gestured toward this
earlier in your testimony. I am increasingly worried that the
Department is not enforcing vigorously the antitrust statutes
in many sectors of the economy, not just technology.
We see--again, as you have alluded to, we see growing
concentration of power in various sectors held by just a few
firms. And if you look at recent trends in the Department's
scrutiny of proposed mergers, it is at record lows. Last year,
for instance, the Department of Justice Antitrust Division
scrutinized mergers through second requests for information in
less than 1 percent of all eligible cases.
That is, I believe, the lowest level of merger scrutiny
recorded since the FTC started tracking those statistics back
in 1981. And just for comparison purposes, in 1981, that review
was five times higher than it was in 2018.
My question is, do you think this record low level of
merger scrutiny is appropriate? And if you are confirmed as
Attorney General, what might you do to ensure that the
Antitrust Division faithfully and vigorously enforces the law?
General Barr. Well, I am for vigorous enforcement of the
antitrust laws to preserve competition, and as I said, this is
going to be an area I am going to want to get into and work
with Makan Delrahim on, if I am confirmed.
I would not necessarily use, you know, the incidence of
merger review as a proxy for failure of competition. At the end
of the day, it is competition we are worried about in different
markets. But I am interested in exploring those--you know,
those statistics you were just using.
Senator Hawley. And do you think it is fair to say, would
you agree that the historic levels of concentration that we are
seeing in many parts of the economy, technology in particular,
is potentially detrimental to competition? I mean, it is,
again, potentially and in general, but it is something that is
worth scrutinizing and being concerned about if one is
concerned about free, fair, and open competition?
General Barr. You said the size?
Senator Hawley. Yes, historic levels of concentration.
General Barr. Yes. I think what is--the thing I am
concerned about are the network effects that have now--that are
now at work, where they are so powerful that particular sectors
could essentially be subsumed, you know, subsumed into these--
into these networks. There are just very powerful network
effects because of the size.
Senator Hawley. Yes. I see my time has almost expired.
Thank you, Mr. Chairman.
Chairman Graham. Senator Hirono.
Senator Hirono. Thank you, Mr. Chairman.
Mr. Chairman, I welcome the arrival of the immigration
Lindsey Graham of 2013. The other Lindsey Graham, we shall see,
as you, yourself, have acknowledged.
Mr. Barr, I ask these questions, these two questions, of
every nominee who comes before any of the Committees on which I
sit, and these are the questions: Since you became a legal
adult, have you ever made unwanted requests for sexual favors
or committed any verbal or physical harassment or assault of a
sexual nature?
General Barr. No.
Senator Hirono. Have you ever faced discipline or entered
into a settlement related to this kind of conduct?
General Barr. No.
Senator Hirono. I have a question relating to recusal. You
have been asked a number of times. It is very clear that the
President does not want an Attorney General who will recuse
himself from the Mueller investigation. So when he came before
us for confirmation in January 2017, Jeff Sessions wrote on his
Committee questionnaire that he would ``seek and follow the
advice of the Department of Justice's designated agency ethics
official, if confronted with a conflict of interest.''
And in fact, he did do that, and he was basically pummeled
by the President ever since. So Matthew Whitaker has not come
before us for the job of Attorney General, but we know that
when it came time to make the decision about recusal, he did
not want to be the object of Trump's wrath, so he proceeded to
listen to and then ignore the advice of the career ethics
officials at the DOJ who recommended recusal.
So your answer to Senator Klobuchar makes it clear that you
are going to basically follow the Whitaker model. Can you
understand why that is not terribly reassuring to us?
These are not normal times. This is not 27 years ago.
Today, the President is Donald Trump, who will do anything to
protect himself. He wants you--who has written a manifesto
about why the President should not be prosecuted, at least, for
obstruction of justice; who has met with and consulted with the
President's defense attorneys; who has written op-eds defending
his firings of Sally Yates and James Comey--to be his Attorney
General.
So in this context, just asking us to trust you is not
enough. Why will you not simply follow Jeff Sessions' lead and
take and follow--the critical question being ``follow''--the
advice of the Department's ethics officials?
General Barr. Because the regulations and the
responsibilities of the Attorney General as the head of the
agency vest that responsibility in the Attorney General. And--
and I am not going to surrender the responsibilities of the
Attorney General to get the title. I do not need the title.
If you do not--if you do not trust me to----
Senator Hirono. Well, I--you have--excuse me.
General Barr. Yes.
Senator Hirono. You have repeated that answer many, many
times. However, I think we all acknowledge that Jeff Sessions
possibly did not want to recuse himself, but he did. And so you
have it within your power to follow the ethics advice of your
own Department, and you are telling us you are not going to. So
that is the bottom line.
General Barr. No, Senator. I think Jeff Sessions recused
himself because of a different provision, which was the
political conflict provision.
Senator Hirono. I think in the context of all of the things
that----
General Barr. He played a role in--he played a role in the
campaign.
Senator Hirono. In the context of all of the things that
you have done, basically to get the attention of President
Trump to nominate you, I would say that there is a political
context to what your decision should be also.
Let me move on. You have said that you will allow Mueller
to complete his work. Although I do want to ask you very
specifically, because you did write that 19-page memo relating
to the obstruction of justice issue, would you allow the
Mueller investigation with regard to obstruction of justice to
also go forward unimpeded by you?
General Barr. I do not know whether there is an
investigation of obstruction of----
Senator Hirono. Well, definitely obstruction of justice.
You read the papers as well as we do, that that is an element
of the Mueller investigation. I do not think you can sit here
and tell us that you do not think that that is a part of the
investigation.
But let us say that it is. Having written what you did,
would you seek to stop that portion of the Mueller
investigation, that being the obstruction of justice portion,
assuming that that is, in fact, part of the investigation?
General Barr. Okay, but you have to remember, my memo was
on a very specific statute and a specific theory that I was
concerned about.
Senator Hirono. I understand that.
General Barr. I have no basis for suspecting at this point
that that is in play at all.
Senator Hirono. You mean that particular provision? So
Mueller----
General Barr. That provision or theory. Or theory.
Senator Hirono. Well, I did say let us assume that, in
fact, obstruction of justice is part of the Mueller
investigation.
General Barr. When I say ``theory,'' I mean, what I was
addressing was, you know, whether the removal of Comey in and
of itself would be obstruction.
Senator Hirono. Of course, it is not in and of itself----
General Barr. Under a particular statute----
Senator Hirono. I hate to be interruptive, but, you know, I
only have 4 minutes, so thank you very much.
You were asked about the investigations that are going on
in the Southern District of New York, the Eastern District of
Virginia, the District of Columbia, and there are various
investigations brought by various U.S. Attorneys' Offices
relating to the activities of Donald Trump, his campaign, his
inauguration, his foundation, his businesses, his family, his
associates. Do you consider these to be lawful investigations?
Because I believe that you responded to Senator Blumenthal
that, if these are lawful investigations by the U.S. Attorneys'
Offices, you do not see yourself interfering with them.
General Barr. I have no reason to think they are not lawful
investigations, whatever they are. You seem to know more than I
do about what is under investigation.
Senator Hirono. That is reassuring, that you are wanting to
have the Mueller investigation go forward extends to all of
these other U.S. Attorneys' investigations.
I believe you also said that the Mueller report will be
confidential? It is confidential under the Special Counsel's--
whatever the criteria are. So what I am hearing you say is
that, in spite of the fact that you want to be transparent,
neither Congress nor the public will get the Mueller report
because that is confidential. So what we will be getting is
your report of the Mueller report subject to applicable laws
limiting disclosure. So is that what you are telling us?
General Barr. I do not know what--at the end of the day
what will be releasable. I do not know what Bob Mueller is
writing.
Senator Hirono. Well, you said that the Mueller report is
confidential pursuant to whatever the regulations are that
applies to him. So I am just trying to get as to what you are
going to be transparent about.
General Barr. As the rules stand now, people should be
aware that the rules, I think, say that the Special Counsel
will prepare a summary report on any prosecutive or declination
decisions, and that that shall be confidential and shall be
treated as any other declination or prosecutive material within
the Department. In addition, the Attorney General is
responsible for notifying and reporting certain information
upon the conclusion of the investigation.
Now, how these are going to fit together and what can be
gotten out there, I have to wait and--I would have to wait. I
would want to talk to Rod Rosenstein and see what he has
discussed with Mueller and, you know, what----
Senator Hirono. But you have testified that you would like
to make as much of the original report----
General Barr. Right, and so all I can say right now is----
Senator Hirono [continuing]. Public as possible.
General Barr. Yes. All I can say right now is my goal and
intent is to get as much information out as I can consistent
with the regulations.
Senator Hirono. Thank you. So in the minute that I have, I
would just like to go over some of the policies that Jeff
Sessions has followed. One is a zero-tolerance policy which led
to the separation of children from their parents. He refused to
defend the Affordable Care Act and argued in the Texas lawsuit
that key parts of the ACA were unconstitutional. He failed to
bring a single lawsuit to enforce the Voting Rights Act to stop
voter suppression efforts. And he issued a memo making it
harder for the Civil Rights Division to enter into consent
decrees to address systemic police misconduct.
Do you agree with these policies? Do you intend to continue
them?
General Barr. The last one, yes. I agree with that policy.
The other ones, I am not--I would have to see what the basis
was for those decisions.
Senator Hirono. So do you think that as to the last one,
which has to do with consent decrees, that there is a role for
the Department of Justice in addressing system police
misconduct?
General Barr. No, there----
Senator Hirono. You do not see much of a role in that? Or
you see a more limited----
General Barr. That is your characterization of it. That is
not what I understand the policy to be. Of course, the
Department has a role in pattern and practice violations.
Senator Hirono. So Attorney General Sessions has issued a
rule that makes it a lot tougher to enter into these kinds of
decrees.
General Barr. Why do you say it is a lot tougher?
Senator Hirono. Because it is not just relying on the
career attorneys. Now it goes to the Deputy AG or whoever, that
there are more political appointees who are going to get
involved in that process, and that makes it much more limited,
I would say, in utilization.
Thank you, Mr. Chairman.
Chairman Graham. Thank you, Senator Hirono.
We will take a 10-minute comfort break and start with
Senator Tillis. If my math is right, we have got about an hour
left on round one. So will 10 minutes be okay, Mr. Barr?
General Barr. Yes.
Chairman Graham. Okay. Thank you. Ten minutes.
[Whereupon the Committee was recessed and reconvened.]
Chairman Graham. Thank you, Mr. Barr.
I think--who we have left on our side is, Senators Kennedy,
Blackburn, and Tillis, and Senators Booker and Harris. Anybody
else? I think that is it in round one.
So, Senator Kennedy.
Senator Kennedy. Thank you, Mr. Chairman.
Mr. Barr, do you know of any instance in which anybody has
tried to interfere in Mr. Mueller's investigation?
General Barr. No. I mean, I am not in the Department of
Justice, and I have no--you know, I am not privy to that
information, but I do not know of any.
Senator Kennedy. I understand you know Mr. Mueller, do you?
General Barr. Yes, I do.
Senator Kennedy. Is he big enough to take care of himself?
General Barr. He is a Marine.
[Laughter.]
Senator Kennedy. If someone had tried to interfere with his
investigation, based on your knowledge of Mr. Mueller, would he
have something to say about it, including but not limited to in
a court of law?
General Barr. Yes, Senator.
Senator Kennedy. I want to try to cut through some of the
innuendo here. Did President Trump instruct or ask you, once
you become Attorney General, to fire Mr. Mueller?
General Barr. Absolutely not.
Senator Kennedy. Did he ask you to interfere in Mr.
Mueller's investigation?
General Barr. Absolutely not.
Senator Kennedy. Has anybody in the White House made that
suggestion to you?
General Barr. Absolutely not.
Senator Kennedy. Has anybody in the Western Hemisphere made
that suggestion to you.
General Barr. Absolutely not.
[Laughter.]
Senator Kennedy. Okay. I want to associate myself with the
remarks of Mr. Blumenthal about the FBI being the premier law
enforcement agency in the history of the world, in my opinion,
and the high esteem in which we all hold the Department of
Justice. But I have a question for you. This
counterintelligence investigation that was started by the FBI
and Justice, allegedly about President Trump, how did The New
York Times get that information?
General Barr. I do not know, Senator.
Senator Kennedy. Well, didn't it have to come from the FBI
or the Department of Justice?
General Barr. I just cannot say. I do not know how they got
it, and I do not know whether that is an accurate report.
Senator Kennedy. All right. What do you intend to do about
the leaks coming out of the FBI and the Department of Justice?
General Barr. The problem of leaks is a difficult one to
address. I think the first thing is to make it clear that there
is an expectation that there are no leaks and punish people
through internal discipline if there are leaks; also keep--you
know, exercise more compartmentalization and discipline; and
make the institutions that are responsible, if you are talking
about the FBI, that their leadership is taking aggressive
action to stop the leaks.
Senator Kennedy. Okay. You have had some experience with
the enforcement of our immigration laws. Is that correct?
General Barr. That is right, Senator.
Senator Kennedy. Do you believe it is possible to secure a
1,900-mile border without, in part, at least, using barriers?
General Barr. No, I do not think it is possible.
Senator Kennedy. Okay.
General Barr. When I was Attorney General, we had the INS
as part of the Department, and I remember another part of my
kibitzing was trying to persuade George W. Bush's
administration not to break that out. But in those days, I had
some studies done, and I was trying within the budget to put as
much as we could on barriers as we could.
Senator Kennedy. Okay. Do you believe that ICE should be
abolished, as some of my colleagues do?
General Barr. Certainly not.
Senator Kennedy. Okay. You are Roman Catholic, are you not?
General Barr. Yes, I am.
Senator Kennedy. Do you think that disqualifies you from
serving in the United States Government?
General Barr. I do not think so, no.
Senator Kennedy. Okay. Why is that?
General Barr. Why doesn't it disqualify me?
Senator Kennedy. Yes. Some of my colleagues think it might.
General Barr. Because you render under Caesar that which is
Caesar's and under God that which is God's, and I believe in
the separation of church and state. And I--if there was
something that was against my conscience, I would not impose it
on others. I would resign my office.
Senator Kennedy. Yes, I think it is called freedom of
religion, as I recall.
General Barr. Yes, that is right.
Senator Kennedy. If the Federal Government threatens to
withhold Federal money from a university if that university
does not investigate, prosecute, punish sexual assault in a way
prescribed by the Federal Government, does that make the State
university a state actor--or the university a state actor?
General Barr. It may. You know, I would have to look at the
cases. I am not up to speed on those. But I would think so.
Senator Kennedy. Well, if the Federal Government says to a
university, look, if you do not prosecute, investigate, punish
allegations of sexual assault in a way that the Federal
Government says you must, otherwise we are going to take away
your Federal money, does the accused in one of those sexual
assault allegations still have the protection of the Bill of
Rights?
General Barr. I would hope so.
Senator Kennedy. Should he, or her?
General Barr. You know, I would have to look and see
exactly the State actor law right now, but what you are getting
at is, you know, the rules that were forced on universities in
handling sexual harassment cases----
Senator Kennedy. Right.
General Barr [continuing]. That, you know, I felt
essentially did away with due process.
Senator Kennedy. Yes.
General Barr. And, you know, I think the victim--you know,
as a father of three daughters, I take very seriously any
question of sexual harassment. It is a serious problem. And the
word of a victim has to be taken very seriously and it has to
be pursued, but we cannot do it at the expense of the Bill of
Rights or basic fairness and due process.
Senator Kennedy. Both the accused and the accuser deserve
due process, do they not?
General Barr. That is right.
Senator Kennedy. Tell me what the legal basis is for a
universal injunction.
General Barr. I think universal injunctions have no--well,
let me say that they are a recent vintage. They really started
arising in the 1960s, and I think that they have lost sight of
the limitation on the judicial power of the United States,
which is case or controversy.
Senator Kennedy. It is all based on a D.C. Circuit case.
General Barr. Right.
Senator Kennedy. The Wirtz case, is that right?
General Barr. I forgot the name of the case, but I think
the D.C. Circuit case was the first one, and I think that was
in the 1960s. And people have lost sight of the fact that it is
really a question of who gets the relief in a case, and under
the case or controversy, it should be limited to the parties.
And, you know, earlier you could have a court in one
jurisdiction decide it, and that would be the rule in that
jurisdiction. But that did not debar the Government from
continuing its policies elsewhere, and eventually you would get
differences, and they would work their way up to the Supreme
Court.
So I think that I would like to see these universal
injunctions challenged.
Senator Kennedy. Well, I do not know how many Federal
District Court Judges we have, let us say 650. As I understand
it, one can enjoin a congressional statute nationwide even if
the other 624 judges disagree.
General Barr. That is right. And not just a statute,
Senator. I think what is different, what we are seeing is the
willingness of courts to set aside, you know, even the kinds of
exercises of national security power that, you know, 20 years
ago would have been unimaginable for a court to challenge, and
yet a District Court Judge somewhere can enjoin some action
that has a bearing on the safety of the Nation, and then the
judicial process can take years and years to get that up to the
Supreme Court.
Senator Kennedy. I have just got a few seconds left. As I
understand your testimony, General, Mr. Mueller will write a
report, submit it to you as Attorney General, and then you will
write a report based on that report and release your report. Is
that right?
General Barr. That is essentially it, but I would not
assume--you know, it could easily be that the report is
communicated to the Department--assuming I was confirmed, that
could be a month away. I do not----
Senator Kennedy. Let me tell you what I am getting at. I
have got 6 seconds--now 4. The American people deserve to know
what the Department of Justice has concluded, and they are
smart enough to figure it out. I have said this before. The
American people do not read Aristotle every day. They are too
busy earning a living. But if you give them the facts, they
will figure it out, and they will draw their own conclusions.
It does not matter who spins them. They will figure it out for
themselves. And I would strongly encourage you to put this all
to rest, to make a report, a final report public, to let
everybody draw their own conclusions so we can move on.
If somebody did something wrong, they should be punished.
But if they did not, let us stop the innuendo and the rumors
and the leaking and let us move on.
General Barr. I agree, Senator, and let me say, you know,
earlier I misspoke, because the Acting Attorney General is Matt
Whitaker, and I referred to Rod as the Acting Attorney General.
But, in fact, the report would go to Matt Whitaker.
Senator Kennedy. Thank you, Mr. Chairman.
Chairman Graham. Senator Booker.
Senator Booker. Thank you, Mr. Chairman, and I would like
to remark, Mr. Barr, that your family is showing a prodigious
level of patience, indefatigable endurance, and that should be
marked for the record. You are a very lucky man.
You know that about 30-plus States have legalized medical
marijuana for adult use. You are aware of that, correct?
General Barr. Yes.
Senator Booker. In 2018, Attorney General Jeff Sessions
rescinded the Cole Memorandum, which provided guidance to U.S.
Attorneys that the Federal marijuana prohibition should not be
enforced in States that have legalized marijuana in one way or
the other. Do you believe it was the right decision to rescind
the Cole Memorandum?
General Barr. My approach to this would be not to upset
settled expectations and the reliance interests that have
arisen as a result of the Cole Memoranda, and investments have
been made and so there has been reliance on it. So I do not
think it is appropriate to upset those interests.
However, I think the current situation is untenable and
really has to be addressed. It is almost like a back-door
nullification of Federal law. To me it is a binary choice.
Either we have a Federal law that applies to everybody----
Senator Booker. I am sorry to interrupt you, sir, but how
would you address that? Do you think it is appropriate to use
Federal resources to target marijuana businesses that are in
compliance with State laws?
General Barr. No, I said that--that is what I said. I am
not going to go after companies that have relied on the Cole
Memoranda. However, we either should have a Federal law that
prohibits marijuana everywhere--which I would support myself
because I think it is a mistake to back off on marijuana.
However, if we want a Federal approach, if we want States to
have their own laws, then let us get there and let us get there
the right way.
Senator Booker. And if you do not mind, I am going to just
move on, but it is good to hear, at least, the first part of
what you said.
During your previous tenure as Attorney General, you
literally wrote the book on mass incarceration or, at least,
wrote this report, ``The Case for More Incarceration.'' You
argue that we as a Nation were ``incarcerating too few
criminals.''
General Barr. In those days.
Senator Booker. And that the solution was more
incarceration for more people.
General Barr. Excuse me.
Senator Booker. Please, sir.
General Barr. For chronic violent offenders and gun
offenders.
Senator Booker. Well, I mean, that is the challenge, sir,
and you argued against the bipartisan legislation in 2015 quite
strenuously.
General Barr. I did.
Senator Booker. But that is not the nature of incarceration
in this country. In Fiscal Year 2016, only 7.7 percent of the
Federal prison population was convicted of violent crimes.
Overwhelmingly, what was initiated in those times that led to
an 800-percent increase in the Federal prison population,
overwhelmingly that was nonviolent drug offenders. Right now
our Federal prison population is overwhelmingly nonviolent--
47.5 percent of the Federal prison population are incarcerated
for drug offenses. And I guess hearing your arguments then and
hearing your arguments against the bipartisan legislation that
we brought out of the Committee in 2016----
General Barr. But, Senator, I think that is wrong, what you
just said, okay? I think when you have violent gangs in the
city killing people, murder and so forth and so on, sometimes
the most readily provable charge is their drug-trafficking
offenses rather than proving culpability of the whole gang for
murder. So you can take out--you can take out a gang on drug
offenses, and you could be taking out a lot of violent
offenders. Do you think that the murders in Chicago are--they
are related to gangs, and gangs involved in----
Senator Booker. And, sir--and, again, we can get into the
data if you would like, and I would like to get some more
pointed questioning. But this is the sort of--these are sort of
the tropes that make people believe that in inner cities we
should have such profound incarceration rates. And I would like
to ask you specifically about that data because I think it is
language like that that makes me kind of concerned and worried.
You said you had not reviewed--you said earlier in your
testimony that you had not reviewed criminal justice data about
this actual issue of incarceration versus non-incarceration. I
just want to know, will you commit to commissioning a study on
just the concerns that we are talking about right now about the
efficacy of reducing mass incarceration and publish those
results? Would you be willing to do such a study yourself?
General Barr. Well, as I understand it, I have been told
that there is a lot of data to support the First Step Act.
Senator Booker. Yes, and that First Step Act goes directly
toward addressing a lot of the problems we have had in mass
incarceration. And so if you are saying that it is necessary to
deal with violence in communities by overincarcerating, here is
a bipartisan group of Senators that is working toward reducing
mass incarceration. And that is why I think it is very
important--which I appreciate you saying you did not know
because you had not reviewed the data. I think it is very
important that you review the data and understand the
implications for the language that you are using, which brings
up this language of race, which is often not said explicitly,
but when you talk about Chicago in the way you just did, it
brings up racial fears or racial concerns. And you stated that,
``if a Black and a White''--this is quoting you directly--``are
charged with the same offense, generally they will get the same
treatment in the system and ultimately the same penalty.'' You
previously quoted, and I quote you again, ``There is no
statistical evidence of racism in the criminal justice
system.'' Do you still believe that?
General Barr. No, what I said was that--I think that is
taken out of a broader quote, which is, the whole criminal
justice system involves both Federal but also State and local
justice systems. And I said there is no doubt that there are
places where there is racism still in the system. But I said
overall I thought that, as a system, it is working--it does
not--it is not predicated on----
Senator Booker. So can I press you on that, overall the
system treats Blacks and Whites fairly? From my own experience,
I have lived in affluent communities; I have gone to college
campuses. There are certain drug laws applied there that are
very different in the inner-city community in which I live. But
let us talk stats; let us not talk our personal experiences.
And so I have sat with many of my colleagues and many
conservatives who readily admit what the data shows. And so I
have a whole bunch of reports which I will enter into the
record from nonpartisan, bipartisan groups, even conservative
leaders, talking about the rife nature of racial bias within
the system.
For example, the Federal Government's own data, the U.S.
Sentencing Commission's research shows that Federal prosecutors
are more likely to charge Blacks with offenses that carry harsh
mandatory minimum sentences than similarly situated for Whites.
The Federal Government's own data shows that Black defendants
were subject to three strikes sentencing enhancements at a
statistically significant higher rate, which added on average
over 10 years to their sentences.
And so with numerous researchers having found stunning
racial disparities rife throughout our system and in the
Federal system which you will be the chief law enforcement
officer of, and primarily for drug--overwhelmingly for drug
laws--for example, I do not know if you are aware or not of the
Brookings study that found that Blacks are 3.6 times more
likely to be arrested for selling drugs, despite the fact that
Whites are actually more likely to sell drugs in the United
States of America, and Blacks are 2.5 times more likely to be
arrested for possession of drugs when there is no difference
racially in America for the usage and possession of drugs in
the United States.
I do not know if you are--are you familiar with the
Brookings study?
General Barr. No, I am not.
Senator Booker. Okay. So, just to follow up, will you
commit to commissioning a study examining racial disparities
and the disparate impacts of the policies that you talked about
that led to mass incarceration, the policies that you defended
when you criticized the bipartisan 2015 sentencing reform
legislation, will you commit to, at least, as the most
important law enforcement officer in the land, to studying
those well-documented racial disparities and the impacts it
has?
General Barr. Of course, I will commit to studying that,
and I will have the Bureau of Justice Statistics pull together
everything they have. And if there is something lacking, I will
get that. And I am interested in State experience. But when I
looked at--I think 1992 was a different time, Senator. The
crime rate had quintupled over the preceding 30 years, and it
peaked in 1992. And it has been coming down since 1992.
Senator Booker. And, sir, I just want to say, I was a young
Black guy in 1990s, I was a 20-something-year-old, and
experienced a dramatically different justice system in the
treatment that I received. And the data of racial disparities
and what it has done to Black--because you literally said this
about Black communities, and I know that your heart--I know
that your heart was in the right place. You said that, ``Hey, I
want to help Black communities.'' This is what you were saying:
``The benefits of incarceration would be enjoyed
disproportionately by Black Americans living in inner cities.''
You also said that, quote, ``A failure to incarcerate hurts
Black Americans most.''
General Barr. And I will tell you what----
Senator Booker. And I just want to ask a yes-or-no question
because I have seconds left. Do you believe now, 30, 40 years
of mass incarceration, targeted disproportionately toward
African Americans, harsher sentences, disproportionately
represented in the criminal justice system, with the American
Bar Association talking about once you have been incarcerated
for even a low-level drug crime, there are 40,000 collateral
consequences that impact your life--jobs, Pell grants, loans
from banks. Do you think, just ``yes'' or ``no,'' that this
system of mass incarceration has disproportionately benefited
African-American communities? ``Yes'' or ``no,'' sir.
General Barr. I think the reduction in crime has, since
1992, but I think that the heavy drug penalties, especially on
crack and other things, have harmed the Black community, the
incarceration rates have harmed the Black community.
Senator Booker. And I would just conclude to my Chairman
and partner, thank you, sir, on this, because I am really
grateful for this bipartisan group, the Heritage Foundation, I
have spoken at the AEI Conference, just found such great
partnership. But I worry about the highest law enforcement
officer in the land and some of the language I still hear you
using that goes against the data and that you are going to be
expected to oversee a justice system that you and I both know
needs the faith and confidence of communities that has
dramatically lost that confidence because of implicit racial
bias. And the DOJ--and I will give you a chance to respond. The
DOJ itself has said, mandated implicit racial bias training,
and I hope that is something that you will agree to do.
But this is the thing I will conclude on, that we live on a
planet Earth where you can tell the most about a nation by who
they incarcerate. In Turkey, they incarcerate journalists.
Thank God we do not do that here, even though they have been
called, ``the enemy of the people.'' In Russia, they
incarcerate political opponents. I am glad we do not do that,
even though with chants of, ``Lock her up.'' But you go into
the American criminal prisons, sir, and you see the most
vulnerable people. You see overstigmatized mentally ill people
clogging our system. You see overstigmatized addicted people
clogging our system. You see a system where, as Bryan Stevenson
says, it treats you better if you are rich and guilty than if
you are poor and innocent. And you see disproportionately,
overwhelmingly for drug crimes, African Americans and Latinos
being incarcerated.
The importance of your job--and I will ask you this last
question, because you have not met with me yet. You have given
that courtesy to others. Would you please meet with me in my
office so you and I can have a heart-to-heart on the urgency,
the cancer on the soul of our country's criminal justice
system, is the disproportionate impact of that system on those
vulnerable communities, including women over 80 percent of
whom, the women we incarcerate, are survivors of sexual trauma?
Can you and I sit down to have a longer conversation than these
10 minutes will allow on this issue?
General Barr. I would very much welcome that, Senator. You
know, my experience back in 1992, when sort of blood was
running on the streets all over the United States, my ideas
were actually first formed when I went to Trenton, and the
African-American community there essentially surrounded me and
was saying, ``Look, we are in our golden years. We are trying
to enjoy our golden years, and we cannot even go outside our
house. We have bars on our house and so forth. Please, these
gangs are running roughshod.''
So I developed this idea called ``weed and seed,'' and my
attitude was, look, let us stop arguing past each other, let us
attack root causes and let us get tough on crime. And I felt
that for programs to work, like after-school programs and so
forth, for housing projects to be safe, we needed strong
enforcement in those communities, and we needed those other
programs to be brought to bear community by community. And it
had to be done with the leadership of the community, and that
was this idea of the partnership. And it caught on. It was very
popular. And, in fact, it was continued by a lot of the U.S.
Attorneys in the Clinton administration after the Bush
administration was out. And it actually, under a number of
different names, has continued.
So I am very conscious of the issues you raise, but my goal
is to provide safe--was, and my motivation was to provide
safety in these neighborhoods for the people trying to raise
their children and for the older people and so forth. The
neighborhoods are--you know, the crime rate has gone down. I
make a distinction between the way we treat these chronic
violent offenders and the drug penalties. The drug penalties,
as I said, very high and Draconian, and in some cases that
might have been necessary. But I supported revisiting the
penalty structure.
Senator Booker. And, sir, I am the only United States
Senator that lives in an inner-city, low-income community. I
have had shootings in my neighborhood, a young man killed last
year on my block with an assault weapon. I know this urgent
need for safety and security, and actually, I am not saying I
am necessarily going to vote for you one way or the other, but
I believe your intentions are well, but I think that some of
the things you have said in the past lead me to believe that
your policies might be misguided. In the way that Mike Lee and
Cornyn and Graham and Grassley have been incredible partners in
changing the American reality, I hope that you can be that kind
of partner, too, and I hope that you and I can have a good
heart-to-heart conversation, trusting that we both want the
same end for all communities, safety and security, but a
justice system that is fair to all American citizens.
General Barr. I would welcome that, Senator.
Senator Booker. Thank you, sir.
Chairman Graham. Senator Blackburn.
Senator Blackburn. Thank you, Mr. Chairman.
And we appreciate your time today, Mr. Barr, and that of
your family. I told Liam that Grandpa ought to give him
whatever he wants to eat for dinner tonight.
[Laughter.]
Senator Blackburn. He has behaved very well and done a
great job.
Going back to something that Senator Kennedy mentioned on
leaks and you said you would address that by
compartmentalization, talk for just a little bit about your
vision for the Department of Justice as you look at
implementing first steps: addressing violent crime, dealing
with opioids, dealing with online sex trafficking, the
antitrust issues, the Mueller investigation, all the things we
have talked about. How do you intend to lead that Department
that is very different from the DOJ that you led previously?
General Barr. In some ways it is different; in some ways it
is not so different. But my basic approach to things is to get
good lieutenants, good subordinates who are running different
parts of the agenda, and give them, you know, their marching
orders and watch them perform and get involved to the extent I
can to make sure that we are pushing the priority things ahead.
One of the interesting things about the Department of
Justice that is a little different than many agencies is one of
our--our first priority has to be to enforce all the laws. It
is not like we can just come into work and say, ``Well, we are
going to just pay attention to this, so we are not going to
enforce all these other laws.'' We have to cover the
waterfront. That is number one.
But beyond that, what I tried to do last time and what I
would try to do if you confirm me this time would be, you know,
to make sure that even though we are enforcing things across
the board, we have an understood set of priorities and we put
the effort behind those priorities, and we define clearly what
we are trying to achieve.
So, for example, in the area of civil rights, when I was
Attorney General last time--and I had discussed this with
Senator Kennedy--I said, you know, we are not doing enough on
housing discrimination. Housing is very important. It
determines where you go to school, you know, the safety and so
forth. And I set up a program. We hired testers and stuff like
that. And we had a very clear goal and priority for that, and
we launched it. And that is what--you know, that is what I plan
to bring in area after area, defining what we are trying to
accomplish and give the people the tools to get it done and
give them the direction and motivation to get it done.
Senator Blackburn. You have mentioned the Mueller
investigation, your relationship with Mr. Mueller, having him
finish the investigation. If we were to ask him about you, do
you think his assessment would be that you are a fair and
impartial leader that he can trust, that we can trust to lead
the DOJ?
General Barr. I hope he would say that, but I am not going
to put--I am not going to put words in his mouth.
Senator Blackburn. Words in his mouth, yes. We talked about
technology and my interest in that area. And you have had--Mr.
Lee and Mr. Hawley have also talked about antitrust and some of
the enforcement there, big tech and Silicon Valley, and the
power that is harbored there. They are gobbling a lot of their
competitors. You have got Facebook and Google that are claiming
to only be platforms for their users, but they are also getting
into the content business. And that is why Facebook bought
Instagram and WhatsApp, and Google bought YouTube and DeepMind
for AI technology. So their tentacles are spreading, and they
are moving away from a platform into that content into
artificial intelligence, and their market dominance is causing
some problems.
And as we discussed, these companies are violating users'
privacy. They are recklessly sharing their users' personal data
with third parties. This is done without explicit permission.
We cannot let these companies collude to drive out competitors,
or to ignore vital data privacy protections, and big tech
operated really without regard to the law.
And you and I talked a little bit about one of the edge
provider CEOs who, last spring, when he came before a House
Committee--he was also here before this Committee--there was
even reference to how--I discussed how he subjectively
manipulated--or asked if he subjectively manipulated
algorithms, and how there was concern that some of these
platforms referencing a statement he had made functioned more
like a government than a platform or an information service. So
how--do you intend to begin this conversation and begin this
work addressing the antitrust provisions with big tech?
General Barr. Yes. You know, as I mentioned, I am
interested in these issues and would like to have them fully
ventilated at the Department with the Antitrust Division and
also with, you know, outside experts so I can have a better
understanding. I do want to say, however, that I am going to be
recusing myself from AT&T because----
Senator Blackburn. Time Warner, yes.
General Barr. Yes, because now Time Warner is part of
AT&T----
Senator Blackburn. Right.
General Barr [continuing]. And I was told that under the
rules, that will carry over to AT&T. So until I talk to the
ethics advisors at the Department, I do not want to get too far
ahead of my skis and sort of talking about the tech area. But
as a general policy matter, I want to get into this area
because I think it is on a lot of people's minds----
Senator Blackburn. Absolutely.
General Barr [continuing]. And how the law relates to
these--you know, to these developments that we see with these
large companies. And I do not mean to cast aspersions on any
particular company or executive.
Senator Blackburn. Well, and I think for many of us, if you
are looking at a merger and they cannot prove the efficiencies
and they cannot prove that there will be increased competition,
then it does raise some questions as to how those would be
evaluated. And let me go to one other issue that is developing
on this privacy front. It is a data privacy problem that I do
not think a lot of people realize, and it is the embedding of
hardware and then the geolocation, and sometimes that
information is sold.
Now, it folds into the encryption issue because law
enforcement has a very difficult time getting the information
from devices and from the services on encryption. But we are
now aware that many times bounty hunters will be paid a few
hundred dollars, and then they can go in and find the location
of that phone. And some of these Android operating systems are
specific enough that they do the barometric pressure readings,
and they can tell you exactly where in a building that this
phone is located.
So I would hope that you are going to look at the legal
procedures that surround this kind of data and this kind of
tracking and the privacy provisions that are going to pertain
to consumers as they use these devices.
General Barr. Yes.
Senator Blackburn. Good. Thank you. Let me move on. Senator
Ernst talked a little bit about the online sex trafficking. In
Tennessee, we have followed this issue so closely because our
TBI carried out an operation where they apprehended 22
traffickers. Twenty-two men were arrested for sex trafficking,
and much of that work--and the work I have done in the House in
the online sex trafficking, working to shut down BackPage.com,
and to keep our children and keep women safe from these online
traffickers.
And, you know, we were so pleased that last April the
Justice Department seized BackPage and charged seven defendants
for facilitating prostitution and sex trafficking crimes. And
what we know is that when you shut down a site like BackPage,
the big one, then you have a lot of small sites that
proliferate. And we know that it is going to really take a lot
of effort to arrest this situation so that you are not
constantly playing whack-a-mole with these. So I would hope
that you will be committed to putting an end to this kind of
violence and online trafficking.
General Barr. Yes, and I--you know, and I know how focused
you are on it and the leadership you have provided over the
years on it. I do not know that much about the problem and also
about what resources are currently being devoted to it in the
Department, but I would like to come by----
Senator Blackburn. Great.
General Barr [continuing]. And talk to you further about it
once I get exposed to it, if I am confirmed. Okay.
Senator Blackburn. Thank you.
My time has expired. Mr. Chairman, I yield back. Thank you,
Mr. Barr.
Chairman Graham. Senator Harris.
Senator Harris. Thank you, Mr. Chairman, and
congratulations. And to you, congratulations on your
nomination, and thank you for your lifetime of dedication to
public service.
General Barr. Thank you.
Senator Harris. In response to a question that Senator
Ernst asked, you mentioned that we need barriers across the
border to deal with drug trafficking. Are you advocating a
wall?
General Barr. Well, I think I am advocating a system, a
barrier system in some places, and I would have to find out
more about the situation since I last visited the border.
Senator Harris. From what you know, do you believe that a
wall would address the concern that you have about drug
trafficking?
General Barr. Well, a wall certainly would, but I--in some
places it may not be necessary to have, you know, what most
people imagine as a wall.
Senator Harris. Are you aware that most of the drugs coming
into the United States, and particularly through Mexico, are
entering through ports of entry?
General Barr. Yes, but they also come elsewhere, and so do
illegal immigrants cross the border and----
Senator Harris. But in particular on the subject of drug
trafficking, are you aware that most of the drugs that are
trafficked into the United States enter through points of
entry?
General Barr. Yes.
Senator Harris. Have you recently or ever visited a point
of entry--a port of entry in the United States?
General Barr. Not recently.
Senator Harris. When was the last time?
General Barr. I used to spend a lot of--well, when I was
Attorney General.
Senator Harris. So a couple of decades ago.
General Barr. Almost 30 years.
Senator Harris. Okay. I would urge you to visit again if
and when you are confirmed. I think you will see that a lot has
changed over the years. Given the status quo on marijuana and
the fact that 10 States, including the District of Columbia,
have legalized marijuana, and given that the status quo is what
it is, and, as you rightly described, we have Federal laws, and
then there are various States that have different laws, if
confirmed, are you intending to use the limited Federal
resources at your disposal to enforce Federal marijuana laws in
the States that have legalized marijuana?
General Barr. No. I thought I answered that by saying that,
you know, to the extent people are complying with the State
laws, you know, and distribution and production and so forth,
we are not going to go after that.
Senator Harris. Okay.
General Barr. But I do feel we cannot stay in the current
situation because, I mean, if--you can imagine any kind of
situation. Can an existing administration and an Attorney
General start cutting deals with States to say, well, we are
not going to apply the Federal law, you know--some gun law or
some other thing, say, well, we are not going to apply it in
your State----
Senator Harris. I appreciate your point, but specifically,
and I appreciate you answering the question, you do not intend
to use the limited Federal resources at your disposal to
enforce Federal marijuana laws in those States or in the
District of Columbia that have legalized marijuana.
General Barr. That is right.
Senator Harris. Thank you.
General Barr. But I think the Congress of the United
States--it is incumbent on the Congress to regular--you know,
make a decision as to whether we are going to have a Federal
system or whether it is going to be, you know, a central
Federal law----
Senator Harris. I agree with you----
General Barr [continuing]. Because this is breeding
disrespect for the Federal law.
Senator Harris [continuing]. I agree with you. I believe
Congress should act. I agree. Earlier today, Senator Leahy
asked whether you would follow the recommendation of career
Department of Justice ethics officials on whether you should
recuse yourself from the Mueller investigation. You said, ``I
will seek advice of the career ethics personnel, but under the
regulations, I make the decisions as the head of the Agency as
to my own recusal.'' You also said to Senator Klobuchar that
you do not want to ``abdicate your duty since a recusal
decision would be yours.'' So my question is, would it be
appropriate to go against the advice of career ethics officials
that have recommended recusal, and can you give an example of
under what situation or scenario you would go against their
recommendation that you recuse yourself?
General Barr. Well, there are different--there are
different kinds of recusals. Some are mandated, for example, if
you have a financial interest, but there are others that are
judgment calls.
Senator Harris. Let us imagine it is a judgment call, and
the judgment by the career ethics officials in the Agency are
that you recuse yourself.
General Barr. Then it----
Senator Harris. Under what scenario would you not follow
their recommendation?
General Barr. If I disagreed with it.
Senator Harris. And what would the basis of that
disagreement be?
General Barr. I came to a different judgment.
Senator Harris. On what basis?
General Barr. The facts.
Senator Harris. Such as?
General Barr. Such as whatever facts are relevant to the
recusal.
Senator Harris. What do you imagine the facts would be that
are relevant to the recusal?
General Barr. They could be innumerable. I mean, there are
a lot of--you know, for example, there is a rule of necessity,
like who else would be handling it. It could be----
Senator Harris. Do you believe that would be a concern in
this situation if you are--if the recommendation is that you
recuse yourself from the Mueller investigation, do you believe
that would be a concern, that there would be no one left to do
the job?
General Barr. No, I am just--well, in some--in some
contexts, there very well might be because of, you know, the--
who is confirmed for what and who is in what position. But
apart from that, it is a judgment call, and the Attorney
General is the person who makes the judgment, and that is what
the job entails.
Senator Harris. As a general matter that is true, but
specifically on this issue, what--under what scenario would you
imagine that you would not follow the recommendation of the
career ethics officials in the Department of Justice to recuse
yourself from the Mueller investigation?
General Barr. If I disagreed with them.
Senator Harris. Okay. We will move on. Senator Feinstein
previously asked you whether you would put your June 2018
memo--whether you put together that memo based on non-public
information. Your response was that you ``did not rely on
confidential information.'' Are you creating a distinction
between non-public information and confidential information?
General Barr. No.
Senator Harris. Okay. In response to a question from
Senator Durbin about harsh sentencing laws, you stated in
response to the crack epidemic that community leaders back when
you were Attorney General previously asked for these type of
sentencing laws. Now, my understanding is that many of these
community leaders at that time, and I was a young prosecutor
during those days, knew and said even then that the crack
epidemic was a public health crisis, and that that was really
the chorus coming from community leaders, not that they wanted
drug-addicted people to be locked up. And similarly, now we can
find that in most of the communities afflicted by the opioid
crisis, they are similarly, these community leaders, asking
that it be addressed for the public health crisis that it is.
So my question is, if and when you are confirmed in this
position, would you agree that when we talk about the opioid
crisis, the crisis in terms of methamphetamine addiction, or
any other controlled substance, that we should also acknowledge
the public health ramifications and causes, and that there is a
role for the chief law enforcement officer of the United States
to play in advocating for a public health response and not only
a lock them up response?
General Barr. Well, I think the commission that was chaired
by Governor Chris Christie came up with a three-pronged
strategy, and I think that recognized that part of it was
treatment and education, recovery, and prevention, but the
third prong of it was enforcement and interdiction, and that is
the job of the Department of Justice. The Department of Justice
cannot be all things to all people and----
Senator Harris. Sir, but I would suggest to you that in the
intervening almost 30 years since you were last Attorney
General that there is consensus in the United States that when
we look at the drug epidemic, whatever the narcotic may be,
that there is now an understanding that the war on drugs was an
abject failure, that America, frankly, has a crisis of
addiction, and that putting the limited resources of our
Federal Government into locking up people who suffer from a
public health crisis is probably not the smartest use of
taxpayer dollars. So, if confirmed, I would ask that you take a
look at the more recent perspective on the drug crisis that is
afflicting our country, and then I will move on.
Today there is a billion dollar----
General Barr. Excuse me. May I just say something in
response to that----
Senator Harris. Sure.
General Barr. Which is, I was just making the observation
that the job of the Department of Justice is enforcement. I
recognize there are a lot of dimensions to the problem, and
that is why you have places like HHS. The Department cannot
be--you know, cannot do the job of everybody.
Senator Harris. Sir, but I would remind you what you said
because I agree with it. You said earlier the role of the
Attorney General, one, is to enforce the rule of law; two, is a
legal advisor to the President and the Cabinet; and three, is
policy. This is a policy issue, so I would urge you to
emphasize that role and power that you will have if confirmed
and think of it that way.
General Barr. I see. I see.
Senator Harris. I would like to talk with you about private
prisons. There is a billion-dollar private prison industry that
profits off of incarcerating people, and, frankly, as many as
possible. By one estimate, the two largest private prison
companies in the United States make a total combined profit of
$3.3 billion--that is with a ``B''--dollars a year. In August
2016, the Justice Department issued a report on the Bureau of
Prisons' use of private prisons that concluded, ``Contract
prisons incurred more safety and security incidents per capita
than comparable Bureau of Prisons institutions.''
Given this conclusion that prisons run by for-profit
companies have been found to be less safe than Government-run
prisons, if confirmed, will you commit to no longer renew
private prison contracts?
General Barr. Whose report was this, BOP?
Senator Harris. This was--yes, from the Justice Department.
General Barr. BOP? Yes, I would like to--you know, I would
obviously look at that report, yes.
Senator Harris. Okay. And then----
General Barr. But I am not committing--I mean, I would want
to see what the report says, yes.
Senator Harris. Sure. And then I would appreciate a follow-
up when you have a chance to read it.
Senator Harris. Thank you. My time is up.
Chairman Graham. Senator Tillis.
Senator Tillis. Thank you, Mr. Chair.
Mr. Barr, thank you for being here, and, Liam, your
granddaddy is doing good. Mr. Barr, I want to go back because
it is a long time. I think I am the last person in the first
round, so I think we have to go back and maybe have you restate
some things that you said earlier before I get to a few other
things that I hope I have time to cover on intellectual
property, Americans with Disabilities Act, and a GAO report
back from 2014.
I do have to ask a question while Senator Kennedy is here
because I do not think he covered the full landscape. He asked
about anybody in Government, anyone in the Western Hemisphere,
but did you, in fact, talk to anybody in the Eastern Hemisphere
with respect to the Mueller probe?
[Laughter.]
General Barr. No, I did not.
Senator Tillis. Okay. Thank you. We got that--we got that--
Senator Kennedy. Ask him about the Milky Way.
[Laughter.]
Senator Tillis. We got that closed out. You know, would you
go back again and please describe for me the--first off, I
think we have all--you have made it very clear in spite of the
fact some people thought that you had coaching and some of the
citations in the memo that you wrote, that this is a memo you
wrote on your own. Can you explain to me, again, the motivation
behind the memo, what precisely you were trying to communicate,
just for the record?
General Barr. Yes, Senator. So the public commentary and
media commentary was sort of dominated by discussion of
obstruction of justice, and everyone was throwing out
obstruction theories and so forth. And the statute that relates
to obstructing a proceeding that is not yet in being--that is,
some future proceeding--is 1512. And my view was--of the
particular provision, 1512(c), was, that it requires--what it
covers is obstruction by means of impairing evidence that, you
know, some evidence is going to be needed in a future
proceeding, and you impair it either by making it not available
or by corrupting it in some way, altering it, destroying it.
That is what I thought the scope of that statute dealt with,
and to my knowledge, the only cases ever brought under it
involved the destruction of evidence.
Based on public reports, which may be completely wrong, I
thought that the--it was being--that the Special Counsel may be
trying to interpret the statute to say that any act, not
destruction of evidence or anything like that, but any act that
influences a proceeding is a crime if it is done with a bad
intent. My concern there is, that, unlike something like
bribery statute or document destruction where you prohibit it,
that is a bad act. You do not need to be performing that bad
act if you are a Government official.
But if you say that any act that influences a proceeding is
a crime if you have a bad state of mind, that is what the
people at Justice Department do every day of the week is
influence proceedings. That is what they are there for. And
what I was worried about is, the impact on the Department and
other agencies if you say to someone, if you, in supervising a
case or handling a case, make a decision with a--for a bad
intent, it can be a crime. And I thought that that would
essentially paralyze the Government.
So just to give an example, you know, Eric Holder made some
pardon recommendations during the Clinton administration which
were controversial. Incidentally, I supported Eric Holder for
his position. But could someone come along then later and say,
well, if you did that for a political reason to help Hillary
Clinton run in New York, that is a crime and when he--when he
is exercising his prerogatives, you know, in that situation?
And you can just see how that could paralyze Government, and
that was my concern.
Senator Tillis. You also referred to your concerns with the
prosecution of Senator Menendez.
General Barr. Yes.
Senator Tillis. Did that weave into that same thought
process?
General Barr. Yes, because in that case my concern was that
they were basically taking activities that were not, you know,
wrongful acts in themselves. You know, the political
contributions were lawful political contributions, and the
things with--you know, the travel on his friend--that was his
friend for 25 years. They were taking a trip together. And you
take those kinds of things and then you couple it with official
action, and then the prosecutor comes along and says, well, we
are going to look into your mind and see what your subjective
intent was for performing these two sets of lawful acts, and we
are going to say, you know, that you are corrupt.
Senator Tillis. Good.
General Barr. So I just think that gives too much power to
the prosecutor, and I think if that kind of--and by the way,
you know, they have had cases like this for, you know--I mean,
they have been pursuing things like this, and they have had to
be slapped down a few times by the Supreme Court on these kinds
of aggressive things involving, you know, quid pro quos on the
Hill. So, I----
Senator Tillis. Let me----
General Barr. Yes.
Senator Tillis [continuing]. If I can. Thank you. I just
thought it was helpful because I think you tried to explain a
lot of that and you were cut off, so I thought I would use some
of my time in the first round to ask you that. Also I think
somebody tried to characterize you as having somehow been
opposed to any sort of Russia probe or Russia investigations.
Have you ever gone on record as opposing any of the things that
we are trying to do to figure out where Russia may have been
involved in election tampering?
General Barr. No, and, in fact, in the op-ed piece where I
said I thought the President was right in firing Comey, I said
that the investigation was going forward under the supervision
of Rod Rosenstein.
Senator Tillis. Yes. Did you also say more than one time
that you felt like the Special Counsel investigation should
reach a conclusion, that Special Counsel Mueller should not
be--that he should be allowed to draw this to a conclusion,
then he will submit his report, and you are going to do
everything that you can to present as much of that information
as you can--as you can to the extent that confidential
information is not being compromised?
General Barr. Yes. To the extent that regulations permit
it, yes.
Senator Tillis. Did you also say that there is--even a
scenario--you could not imagine a scenario for cause, but even
a scenario for cause for you to have to--you would have to take
under serious consideration before you removed Special Counsel?
General Barr. That is right.
Senator Tillis. Yes. Okay.
General Barr. There has not been a Special Counsel removed
since Archibald Cox, and that did not work out very well.
Senator Tillis. Did not work out too well, right. And so,
and, again, did you also say that under--in no circumstances
have you had a discussion with the President with respect to--I
think you said you had a discussion about you had a
relationship with Mr. Mueller, but no discussion about the
Special Counsel investigation and your opinions on it with
respect to any discussions you have had with the President?
General Barr. Right. That was the first meeting I had with
the President, and then in November I met with him about the
Attorney General job. And there was no discussion of the
substance of the--of the investigation. The President did not
ask me my views about any aspect of the investigation, and he
did not ask me about what I would do about anything in the
investigation.
Senator Tillis. With respect to the line of the questioning
about the States that have legalized marijuana either for
medicinal purposes or recreational purposes, I think what you
were trying to say in a very, very respectful way is, it is not
your job to do our job. Is that right? That if we ultimately
want to provide certainty for these businesses--you have done a
good job in saying that you disagree with the policy of the
States, but we are where we are, and you would not want to
undermine that given that investments have been made, States
have moved forward.
But at the end of the day, we should stop talking about it
here and making it your job. And those Members--I do not happen
to be one of them--who think that we should take these Federal
laws off the books, should probably file a bill and try and get
it done. Is that a fair assessment of your opinion?
General Barr. That is--that is generally fair, yes.
Senator Tillis. Okay.
General Barr. Yes.
Senator Tillis. Just a few minor things so that we can get
to the next round. There was a report by the Inspector General,
in 2014, that had to do with accountability in the Department
of Justice. I do not expect you to be familiar with this
report, but there were some very interesting observations there
about a lack of follow-through on disciplinary action for a
number of--I think the subtitle of the report was that DOJ
could strengthen procedures for disciplining attorneys.
It is something I would commend to you and maybe dust off
and see if there have been any actions since this report. I did
not get a satisfactory answer when it was contemporary with the
nominee from the Obama administration for the position you are
seeking, which is one of the reasons why I opposed the
nomination.
General Barr. Actually, I--you know, I think very highly of
Inspector General Horowitz, and I have not seen that report.
But that issue is one that I plan to take up with him.
Senator Tillis. Yes. And then, just so that I do finish on
time versus pretend I am going to and go 2 minutes early--over,
one, I want to get your recommendation on intellectual
property. I think we have more work to do to give the
Department of Justice tools to go after bad actors, which are
China, Russia, India, a number of other countries, Brazil, that
are stealing our intellectual property. I also want to talk
about what I think is the exploitation of the Americans with
Disabilities Act, particularly around website access. The web
did not exist, and now we have attorneys filing a number of
frivolous lawsuits. I would like to get some feedback on that
after you get confirmed.
[The information appears as a submission for the record.]
Senator Tillis. And finally, I want to make sure that you
recognize in the First Step Act that faith-based organizations
that have proven to help reduce recidivism are absolutely in
play for the First Step Act, and hopefully we can make sure the
Department of Justice moves forward with that. Thank you, Mr.
Chair.
Chairman Graham. Thank you.
General Barr. Thank you, Senator.
Chairman Graham. I believe that is the end of the first
round. Mr. Barr, are you able to go for a little bit longer?
General Barr. Sure.
Chairman Graham. Okay. So we will start--we will do 5
minutes. As you can tell, I have been pretty liberal with the
time, but let us try to honor it the best we can.
Senator Grassley.
Senator Grassley. Where he left off on working with faith-
based institutions, you were very positive about that?
General Barr. Absolutely, Senator.
Senator Grassley. That takes care of my first question.
Enforcement of the antitrust laws is extremely important to
ensure that markets are fair and participants do not engage in
abusive activity harming consumers. I have been particularly
active in making sure that the Justice Department and the
Federal Trade Commission carefully scrutinize mergers, as well
as looking out for anticompetitive behaviors and predatory
practices in certain sectors of the economy, and particularly
in my State of Iowa, the agricultural industry. But I am also
pursuing things in healthcare. In particular, because I will be
Chairman of the Senate Finance Committee, I am interested in
making sure that companies in the drug and healthcare
industries are playing by the rules. Everyone is concerned
about the high cost of healthcare, and especially the
skyrocketing price of prescription drugs.
Do you agree that the Justice Department has a very
important role in this area?
General Barr. Yes, Senator.
Senator Grassley. And would you commit to making antitrust
enforcement a priority?
General Barr. Yes, it has to be a priority.
Senator Grassley. Okay. Thank you.
Now, to a favorite issue of mine, whistleblower protection.
Whistleblowers, as I told you in my office, are very critical
to exposing waste, fraud, and abuse. There are our eyes and
ears on the ground. Their courage, when they have it, and most
of them do have great courage or they would not come forward to
expose Government malfeasance, that is how important they are.
So, I hope I can have you have a favorable view toward the
opportunity to listen to the whistleblowers, protect them from
retaliation, and promote a culture that values the important
contribution from those patriotic people.
General Barr. Absolutely, Senator.
Senator Grassley. And now to the Foreign Agents
Registration Act. I hope you understand there have been very
few prosecutions under the Foreign Agents Registration Act
since 1938, and so that lack of enforcement, I think, is
getting, obviously, even since the Mueller investigation,
getting a lot more attention now. But we had a hearing on it
before the Committee, and I think it proves that we should see
more transparency and more enforcement against bad actors, not
less.
Do you agree that the Foreign Agent Registration Act is a
critical national security and public accountability tool? And
if confirmed, will you commit to make sure that that act is a
top priority?
General Barr. Yes, Senator.
Senator Grassley. Okay. So then getting back to the
legislation that I think will improve that 1938 Act, I
introduced the Disclosing Foreign Influence Act to improve
transparency, accountability, and enforcement. You have not
probably read that Act, but I would like to work with you even
though it is not in this Committee. It is in the Foreign
Relations Committee. I would like to have you work with us so
it is something that we can pass and make sure that this law is
more useful than it has been over the last 80 years.
I support the Freedom of Information Act and the public
disclosure of Government records. Transparency yields
accountability. You hear me say that all the time, and that is
true no matter who is in the White House. When I was Chairman
of the Committee, I helped steer the FOIA Improvement Act into
law, which creates a presumption of openness, and that
presumption of openness is a very important standard. The
Justice Department oversees the Federal Government's compliance
with FOIA, so I hope you would agree that FOIA is an important
tool for holding Government accountable. And if confirmed,
then, would you make sure it is a top priority to make FOIA and
the faithful and timely implementation of the 2016 amendments a
top priority?
General Barr. Yes, we will work hard on that.
Senator Grassley. Because you know what really happens
within the bowels of the bureaucracy. It just takes them
forever because maybe something is going to embarrass someone,
so they do not want it out in the public and you get all sorts
of excuses. We have got to do away with those excuses.
One way to make FOIA work better is by reducing the number
of requests. This will be my last question. One way to make
FOIA work better is by reducing the number of requests that
have to be made in the first place. That is why I am a strong
advocate for improved proactive disclosure. If confirmed, will
you commit to help advocate for more proactive disclosure of
Government records? Now, that is not just by the Justice
Department, but because you are the Department's top dog in
this particular area in the Federal Government overall?
General Barr. Yes, Senator.
Senator Grassley. Thank you.
Chairman Graham. Senator Feinstein.
Senator Feinstein. Mr. Barr, I see you have staying power,
and I see it runs in the family, and particularly your
grandson. I would like to send a little care package to him.
General Barr. Thank you, Senator.
Senator Feinstein. You are welcome.
Senator Leahy. He does not have to share it with the rest
of the family.
[Laughter.]
Senator Feinstein. In 1994, you said that gun control is a
dead end. It will not reduce the level of violent crime in our
society. The year you made this comment, I introduced a Federal
assault weapons ban, and the President signed it into law. A
2016 study shows that compared with the 10-year period before
the ban was enacted, the number of gun massacres between 1994
and 2004 fell by 37 percent, and the number of people dying
from gun massacres fell by 43 percent. In addition, between
2004 and 2014, there has been a 183 percent increase in
massacres and a 239 percent increase in massacre deaths.
Do you still believe that prudent controls on weapons will
not reduce violent crime? And if so, what is your basis for
this conclusion?
General Barr. I think that the problem of our time is to
get an effective system in place that can keep dangerous
firearms out of the hands of mentally ill people. That should
be priority number one, and it is going to take some hard work,
and we need to get on top of the problem. We need to come up
with--agree to standards that are prohibiters of people who are
mentally ill. We have to put the resources in to get the system
built up the way we did many years ago on the felon records and
so forth. We have to get the system working. And as I say, it
is sort of piecemeal a little bit right now. We need to really
get some energy behind it and get it done, and I also think we
need to push along the ERPOs so that we have these red flag
laws to supplement the use of the background check to find out
if someone has some mental disturbance. This is the single most
important thing I think we can do in the gun control area to
stop these massacres from happening in the first place.
Senator Feinstein. Well, thank you. I would like to work
with you in that regard.
In August 2002, the Justice Department's Office of Legal
Counsel issued opinions authorizing enhanced interrogation
methods that included waterboarding and extended sleep
deprivation. These opinions were later withdrawn and the
Justice Department's Office of Professional Responsibility
found that they reflected a lack of--this is a quote--``a lack
of thoroughness, objectivity, and candor,'' end quote.
In 2015, I worked with Senator McCain to pass legislation
making clear that enhanced interrogation techniques are
unlawful and limiting authorized interrogation techniques to
those listed in the Army Field Manual, and that is the law
today.
If confirmed, will you ensure that the Justice Department
upholds the law?
General Barr. Yes, Senator. I think that that was an
important change because I think it gave clarity to the law,
and I will support that law.
Senator Feinstein. Thank you. I am delighted to hear that.
Now, a lot of us have asked about the Mueller report and
whether you would commit to providing it to Congress. When
asked, I thought you said yes, but when I tried to clarify it--
I meant the full report, including obstruction of justice--you
again said yes. Then when Senator Blumenthal asked you about
the Mueller report, you seemed to make a distinction and said
you were going to provide your own report based on Mueller's
report, but not the report--this is the way we understood it--
but not the report he submits at the end of the investigation.
This is concerning as there is nothing in the regulations
that prevent you from providing Mueller's report to Congress.
While the regs refer to a confidential report to be provided to
the Attorney General, the regs do not say that confidentiality
means the report cannot be provided to Congress.
So here is the question. Will you provide Mueller's report
to Congress, not your rewrite or a summary?
General Barr. Well, the regs do say that Mueller is
supposed to do a summary report of his prosecutive and his
declination decisions and that they will be handled as a
confidential document, as are internal documents relating to
any Federal criminal investigation. Now, I am not sure--and
then the AG has some flexibility and discretion in terms of the
AG's report.
What I am saying is my objective and goal is to get as much
as I can of the information to Congress and the public. These
are departmental regulations, and I will be talking to Rod
Rosenstein and Bob Mueller. I am sure they have had discussions
about this. There is probably existing thinking in the
Department as to how to handle this. But all I can say at this
stage, because I have no clue as to what is being planned, is
that I am going to try to get the information out there
consistent with these regulations, and to the extent I have
discretion, I will exercise that discretion to do that.
Senator Feinstein. Well, I can only speak for this side,
and maybe not all this side, but we really appreciate that, and
the degree to which you can get us a prompt report in the
fullest possible form would be really appreciated. I think
there has to be a realization, too, among the administration,
that this is an issue of real concern to people and to the
Congress, and we should be able to see the information that
comes out.
General Barr. I understand.
Senator Feinstein. So, I am very hopeful. Thank you.
Let me ask this question on ``enhanced''--did my time run
out?
Chairman Graham. Yes, but go ahead.
Senator Feinstein. On ``enhanced interrogation'': During a
2005 panel discussion, you said the following about
interrogating suspected terrorists, and I quote, ``Under the
laws 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 does not cross the
line and involve the gratuitous barbarity involved in
torture,'' end quote. This is a panel discussion on civil
liberties and security, on July 18, 2005.
Do you believe that torture is ever lawful?
General Barr. No.
Senator Feinstein. Is waterboarding torture?
General Barr. I would have to look at the legal definition.
You are talking about under the--right now it is prohibited. So
the law has definitively dealt with that. I cannot even
remember what the old law was that defined torture. I would
have to look at that and then, you know, figure out what is
involved in it. But it--sorry.
Senator Feinstein. Keep going. I did not mean to interrupt
you.
General Barr. No, it is okay.
Senator Feinstein. At what point does interrogation cross
the line to the ``gratuitous barbarity involved in torture''?
That is your quote.
General Barr. Well, I was not using that, the gratuitous
barbarity--that is what I was saying, that torture is
gratuitous barbarity. So I was not saying that gratuitous----
Senator Feinstein. Oh. Well, that is helpful, then.
General Barr. Yes.
Senator Feinstein. That is helpful.
General Barr. Yes.
Senator Feinstein. And you define waterboarding. You know,
one would think these questions would never be necessary. I
thought that all my life. And then I found I was wrong and they
really are. I was Chairman of Intelligence when we did the big
Torture Report, and what I found and what I saw was really
indicative of reform.
So I think for the Attorney General, knowing the position
is really very important, maybe you could concisely state your
position on torture.
General Barr. I do not think we should ever use torture,
and I think that the clarification that--was it your
legislation of putting in the Army----
Senator Feinstein. It was Senator McCain----
General Barr. The Army Field Manual----
Senator Feinstein. That is right.
General Barr [continuing]. Was important to clarifying
where the line is.
Senator Feinstein. Thank you.
Thank you, Mr. Chairman.
Chairman Graham. Senator Cornyn.
Senator Cornyn. Mr. Barr, I want to talk about guns, and I
want to talk about China in the 5 minutes we have together.
Back in 1992, there was some discussion about your position
on the Congress' role when it comes to banning certain types of
semi-automatic weapons. Sometimes people call those assault
weapons, but in the intervening years, the Supreme Court has
now spoken in both the Heller and McDonald cases and recognized
that the Second Amendment confers an individual and fundamental
right to bear arms.
Could you bring us up to date from your views in 1992 and
how they were affected by Heller and McDonald, and what your
views now are on the Second Amendment?
General Barr. Sure. I think I opposed an assault weapons
ban because I felt that that was really sort of the aesthetics
of the gun. But since that time, Heller has been decided.
Actually, before Heller, I did work at OLC on this issue, and I
personally concluded that the Second Amendment creates a
personal right under the Constitution. It is based on the
Lockean notion of the right of self-preservation. It is tied to
that, and I was glad to see Heller come out and vindicate that
initial view that I had.
And so there is no question under Heller that the right to
have weapons, firearms is protected under the Second Amendment
and is a personal right. At the same time, there is room for
reasonable regulation, and from my standpoint, what I would
look for in assessing a regulation is, what is the burden on
law-abiding people, and is it proportionate to whatever benefit
in terms of safety and effectiveness will be conferred.
As I said just a moment ago, let us get down to the real
problem we are confronting, which is, keeping these weapons out
of the hands of people who are mentally ill, and I think all
the rest of this stuff is really essentially rhetoric until we
really get that problem dealt with in terms of the regulatory
approaches.
Senator Cornyn. As our colleague, the Senator for
Louisiana, Senator Kennedy, likes to say, the Bill of Rights is
not an a la carte menu. I agree with that, and I also agree
that there are many facets to these mass violence incidents.
After the shooting at Sutherland Springs, we found out that the
background check system, the National Instant Criminal
Background Check System, was not being used appropriately by
the U.S. Government, in that case, the Air Force. And if it had
been, this individual who killed 20 people and injured 26 more
at a Baptist church right outside of San Antonio, would not
have been able to legally get his hands on the firearm by
lying. But certainly the mental health issue that you
mentioned, we have done work there with----
General Barr. Fix NICS.
Senator Cornyn [continuing]. In the Fix NICS area. We have
also done the expanded pilot programs and assisted outpatient
treatment for people suffering from mental illness, recognizing
that it is difficult for any family member to control,
particularly an adult, but that providing an opportunity to go
to court and get basically a civil order that would require
them to comply with their doctor's orders, take their
medication, and the like. I am thinking of Adam Lanza at the
Sandy Hook shooting whose mother did not know how to control
him as he was getting more and more ill, only to have him take
her very weapon and then kill her and then go murder the
innocent children.
On China, do you agree with me that China represents
probably one of the preeminent economic challenges to America,
particularly because of their theft of intellectual property
and their exploitation of gaps in foreign investment that we
have tried to address through improvement of the CFIUS process,
the Committee on Foreign Investment in the United States? But
talk to me a little bit about what you see as the challenge of
China, both economically and from a national security
standpoint.
General Barr. Well, I think they are the paramount economic
and military rival in the world. I think that they are very
formidable because they take the long view. They have been
stealing our technology, and they have been gradually building
up their military power and investing in new technologies. I
think from a military standpoint it is very disturbing how much
progress they are making, largely based on U.S. technology.
I really thought that Attorney General Sessions was right
on target in setting up his China initiative in the Department
to start going after the pirating of American technology and
other kinds of illegal activities that Chinese nationals are
involved in here in the United States, and even abroad.
Senator Cornyn. Would you share my skepticism that Chinese
telecommunications companies like Huawei and ZTE, in terms of
how that once in the hands or in the networks of unsuspecting
countries, that that could be used for espionage purposes and
theft of intellectual property?
General Barr. Yes. In fact, even in my old Verizon days, we
understood the danger and would not use that kind of equipment,
even though it would be economically attractive.
Chairman Graham. Before Senator Leahy, I would like to, on
behalf of Senator Feinstein, introduce into the record letters
that express opposition and concern from groups like the
Leadership Conference on Civil and Human Rights, Planned
Parenthood, People for the American Way, National Education
Association, Alliance for Justice, NARAL, the National Urban
League, the National Council of Jewish Women, the Center for
American Progress, the Human Rights Campaign, and a letter from
Representative Raul Grijalva--I hope I got his name right--from
Arizona.
In support, we have letters from the International
Association of Chiefs of Police, a letter from the National
Fraternal Order of Police, numerous letters signed from 100
former Federal law enforcement national security officials,
including three former Attorneys General and a lot of U.S.
Attorneys, and heads of the CIA, FBI, and Department of
Homeland Security, a letter from the National Narcotics
Officers Association, a letter from the International Union of
Police Associations, a letter from Major Cities Chiefs
Association, a letter from the Association of State Criminal
Investigative Agencies.
Without objection, I would like to enter all that into the
record.
[The information appears as submissions for the record.]
Chairman Graham. Senator Leahy.
Senator Leahy. Thank you, Mr. Chairman.
You just mentioned being at Verizon during the NSA's
metadata program known as PRISM and Upstream. It required
telecom internet providers to hand over huge amounts of data to
the Government, and you testified in 2003 that the law is clear
that a person has no Fourth Amendment rights in these records
left in the hands of third parties, the Third-Party Doctrine.
I actually disagreed with you at that time, and I hope you
would now, especially as the Carpenter decision just came down,
written by Chief Justice Roberts, that this is generally
requiring the Government to get a warrant to obtain geolocation
information through the cell site location information. Does
that change the opinion you had back then?
General Barr. It sounds like--I have not read that
decision, Senator. It may modify my views. I would have to read
the decision. I was going on the Miller decision relating to
bank records.
But also you mentioned that you were tying this to the NSA
collection, and then tying it to my testimony, because----
Senator Leahy. You had said that a person has no Fourth
Amendment rights in these records left in the hands of third
parties, the Third-Party Doctrine.
General Barr. Yes. That was the----
Senator Leahy. That seems to be undercut by Carpenter.
General Barr. I will take a look at that. But I do not want
people to have the impression that Verizon was involved in
responding----
Senator Leahy. Then would you respond for the record?
General Barr. Yes, sure. Certainly.
Senator Leahy. And you said back in November 2017 that you
saw more basis for investigating the Uranium One deal than
supposed collusion between President Trump and Russia, and by
not pursuing these matters the Department is abdicating its
responsibility. Just about everybody has debunked the Uranium
One controversy. I think probably the nail in the coffin was
President Trump's biggest supporter, Fox News, who debunked it.
Did I miss something in there?
General Barr. No. Actually, that--you will notice that
there were no quotes around that, and then the next sentence is
plural, ``matters.'' My recollection of that is, what I think
it was relating to, the letter and the appointment of Huber in
Utah to look at a number of things. The point I was trying to
make there was that whatever the standard is for launching an
investigation, it should be dealt with evenhandedly, whatever
that trigger is, should be applied to all.
I have no knowledge of the Uranium One. I did not
particularly think that was necessarily something that should
be pursued aggressively. I was trying to make the point that
there was a lot out there. I think all that stuff at the time
was being looked at by Huber. That is my recollection. I may be
wrong on that.
Senator Leahy. I think the fact that the investigation has
been pretty well debunked, we do not have to worry about it in
the future. But we do have one thing that is happening right
now.
The Trump shutdown is in its 25th day. The Justice
Department has 13,000 FBI agents, 16,000 prison guards, 3,600
U.S. marshals, 4,300 Drug Enforcement agents--all working
without pay. The FBI Agents Association I realize is not part
of the Government, but the Association described the effect of
this shutdown as a potential national security issue.
So let me just ask you, in your years of experience in the
Department, what impact do you believe a long-term shutdown has
on law enforcement?
General Barr. Well, I think most people involved in law
enforcement are--I do not know if the lingo is still the same.
They used to be called essential. I think it has been changed
to something else, but I think they are on the job. But
obviously people would like to see the shutdown ended, and that
is why people want to see some kind of compromise. You call it
the Trump shutdown, but it takes two to tango.
Senator Leahy. Only because he called it that.
General Barr. Okay.
Senator Leahy. And I said finally I have got something I
could agree with him on.
Senator Shelby and I put together appropriations bills that
passed almost unanimously in the Senate at a time when we could
have kept the Government open, at a time when it is hard to get
something unanimous saying the sun would rise in the East. So I
was just agreeing with the President.
But no matter what you call it, is it not a fact that this
does have an effect on law enforcement?
General Barr. Well, not having a wall also has an effect on
law enforcement.
Senator Leahy. And not paying our law enforcement people.
We have both had experience in law enforcement, you at the
national level, me at the State level. If you do not pay our
law enforcement people, I think there is an effect. We have
some very dedicated people, but you have some very distracted
people.
Do you believe that voter ID laws and similar restrictions
actually promote democracy by discouraging voters who are not
really paying attention to what is going on? I am going back to
a panel discussion you had a few years ago.
General Barr. What I said there was that in that panel
discussion there was a lot of people complaining about the lack
of--that many Americans are not educating themselves about the
issues and they are passive, and that it was important, and
also that the voting participation was dropping.
My position was that the underlying problem is the citizen
who is not paying attention to public events, not educating
themselves about the issues and so forth, and that the non-
voting is a symptom, and I did not see driving up participation
as addressing the primary underlying problem. That was my
point, and I pointed out that when the Constitution was
adopted, the turnout was about 33 percent, my understanding. So
then I said low participation has been a problem from the very
beginning.
But my view is that voter turnout should not be
artificially driven up without also addressing the issue of an
informed citizenry, which I think is a problem.
Senator Leahy. Well, we do have voting laws guarding
against discrimination, the arbitrary closing of the voting
booths in predominantly African-American areas, for example.
Would you have any problem in vigorously enforcing our voting
rights laws that are on the books?
General Barr. Of what? Vigorously? No, not at all. I said
one of my priorities would be that. I think we have to enforce
the voting rights, and I was not suggesting that voting should
be suppressed. I was just saying that the low turnout is
ultimately attributable to sort of the--I do not know what the
word to use is, but that the citizenry does not seem to be that
engaged in the public affairs of the country.
Senator Leahy. Well, they are in Vermont. We have one of
the highest turnouts in the country.
General Barr. That is good. Excellent.
Senator Leahy. Thank you, Mr. Chairman.
Chairman Graham. Thank you.
We are going to have two votes at 4:10. Can you go for a
bit longer?
Senator Sasse.
Senator Sasse. Thank you, Chairman.
General, I would like to return to the disturbing topics of
human trafficking and sex trafficking. You have answered a few
questions here today. I would like to look at the November 28th
Miami Herald investigative series that I know that you followed
into the crimes of Jeffrey Epstein, and I want to quote from
that.
Epstein, a wealthy hedge fund manager, quote, ``assembled a
large cultlike network of underaged girls with the help of
young female recruiters to coerce into having sex acts behind
the walls of his opulent waterfront mansion as often as three
times a day,'' closed quote. The report continues, ``He was
also suspected of tracking minor girls, often from overseas,
for sex parties at his other homes in Manhattan, New Mexico,
and the Caribbean.''
The Herald series continues, quote, ``in 2007, despite
ample physical evidence and multiple witnesses corroborating
the girls' stories, Federal prosecutors and Epstein's lawyers
quietly put together a remarkable deal for Epstein, then age
54. He agreed to plead guilty to two felony prostitution
charges in State Court, and, in exchange, he and his
accomplices received immunity from Federal sex trafficking
charges that could have sent him to prison for the rest of his
life. He served 13 months in a private wing of the Palm Beach
County stockade. His alleged co-conspirators, who helped
schedule his sex sessions, were never prosecuted. And the deal
called''--again this is the Miami Herald--``a Federal
nonprosecution agreement was sealed so that no one, not even
his victims, could know the full scope of Epstein's crimes and
who else was involved,'' closed quote.
The fact that Federal prosecutors appear to have crafted
this secret sweetheart deal for a child rapist obviously
enrages moms and dads everywhere. On this particular case, will
you commit to making sure that there is a full and thorough
investigation into the way DOJ handled the Epstein case?
General Barr. So, Senator, I have to recuse myself from
Kirkland & Ellis matters, I am told. And I think Kirkland &
Ellis was, maybe, involved in that case. So I need to sort out
exactly what--what my role can be. But, you know, I will say
that if--if I am confirmed, I will make sure your questions are
answered on this case.
Senator Sasse. Thank you. The Deputy Attorney General,
obviously there have been media reports about the timing of his
potential departure post your confirmation, and the DAG, as you
well know from your prior history, has a key responsibility in
deconflicting different parts of the Department. Those of us
who have been pressing on this matter have found in different
parts of the Department a lot of anxiety about the way this was
handled, and yet kind of a hot potato, have a bunch of people
thinking they are not responsible. Right now, Rod Rosenstein
has been helping, trying to deconflict some of that, but I am
worried, with your potential recusal, if the DAG also departs,
it is not clear who is actually going to deconflict this. So I
am grateful for your pledge that the Department will be
responsive even if not you personally.
General Barr. Yes, that is right.
Senator Sasse. More broadly than the miscarriage of justice
in this particular Florida case, would you agree that justice
has nothing to do with the size of your bank account or the
number of attorneys you can hire?
General Barr. Yes.
Senator Sasse. I agree. And I think that a whole bunch of
Americans wonder about the Department of Justice and how we are
trying to prioritize or how we should be prioritizing our
responsibility to the victims of sex trafficking who are left
defrayed and voiceless. In this particular case, many of the
women who were clearly victims, trafficked rape victims, had no
awareness of the fact, and I think in violation of Federal
statutes of victim notification, that this nonprosecution
agreement had been agreed to, and not just that Epstein and his
co-conspirators were not indicted, but the rest of the
investigatory matters of the Department were also suspended. It
seems truly bizarre.
General Barr. Yes.
Senator Sasse. I think moms and dads watching this hearing
would like to know that you will pledge broadly to attack sex
trafficking as a scourge in our society on both the supply side
and the demand side as these dirtbags demand this, but on the
supply side, as organizations clearly perpetrate these crimes.
Can you pledge to us that this will be one of your priorities
at the Department?
General Barr. They can count on it.
Senator Sasse. Thank you, sir.
Chairman Graham. I want to associate myself with what
Senator Sasse said about the Epstein case and the problem in
general, to the extent you can help us figure this out, please.
General Barr. Yes.
Chairman Graham. Senator Durbin.
Senator Durbin. Thanks, Mr. Chairman.
Mr. Barr, thank you for being with us.
Mr. Barr, my colleague Senator Ernst asked a question
earlier which I am sure will be asked in virtually every State
we represent: What we are doing to stop the flow of narcotics
into the United States. She asked about meth, I believe, in
particular, but about narcotics coming in from Mexico, and your
reply was, and I quote, ``It is the major avenue of how drugs
come into the country. They come across that border. I feel it
is a critical part of border security, and we need barriers on
the border.'' That was your quote.
I am troubled by that answer. And I would like to clarify
it because if we are ever going to have a rational conversation
about border security, there ought to be some basics that we
agree on.
The DEA, which you will supervise if confirmed, in its 2018
report, said, quote, ``The most common method employed by the
Mexican drug cartels involves transporting illicit drugs
through U.S. ports of entry in passenger vehicles, which
concealed compartments are commingled with legitimate goods on
tractor trailers.''
The Customs and Border Protection's own data shows that
Customs officers at legal ports of entry seize the vast
majority of lethal narcotics coming into this country. In
Fiscal Year 2017, the last year we have data, 87 percent of the
fentanyl--which has been identified by the CDC as the most
deadly narcotic in America--87 percent seized in our country
coming in through ports of entry, 13 percent seized outside of
ports of entry.
So, overwhelmingly, when we talk about building new walls
and barriers to stop narcotics, we are ignoring the obvious: 80
to 90 percent of the drugs are coming in through ports of
entry. I met with the head of Customs and Border Protection. He
said the number one thing we can do is to put technology in the
ports of entry to scan the vehicles coming through. Currently,
only 17 percent of trucks and cars coming through those ports
of entry are being scanned, 17 percent. That means 83 percent
of them are just flowing right on through there bringing
narcotics to Iowa and to Illinois. Building a new concrete wall
from sea to shining sea does not even address this issue;
technology does. I want to reach a point where we open the
Government and have this honest conversation. Would you
reconsider your earlier answer as to the fact that we need to
build more barriers to stop narcotics from coming into the
United States?
General Barr. Well, it was not tied just to narcotics, it
was tied to overall border security.
Senator Durbin. You said, a major avenue for how drugs come
into this country. It is not.
General Barr. I said it was across the----
Senator Durbin. Border.
General Barr. Wait a minute. I--I--I----
Senator Durbin. The border is the major avenue, but your
answer was, we need barriers on the border.
General Barr. Right, because drug--you know, we need
barriers on the border for border security. Part of what we are
trying to do is cut down on drugs. It is also illegal aliens.
It is also other--people from other countries who may wish to
do harm in the United States that are coming in. And barriers
are part of the answer. And from my experience, the threat is
always dynamic. You put technology at the ports of entry, they
will shift somewhere else. It is a moving target, it always has
been, and I think we need a system that covers all the bases.
Senator Durbin. I think the reason we cannot reach an
agreement with the Trump administration is fundamental to our
exchange, and it is this, I do not disagree with you, with the
notion that barriers from sea to shining sea will, at least,
slow people down, but when it comes to the next marginal dollar
to protect kids in Illinois and children in your home State, it
is ports of entry, it is technology, to keep these narcotics
out of the United States. And if we cannot really start at the
same premise based on reports from the President's own
administration, we are never going to reach a point of
bipartisan agreement on border security.
So, I hope--I think we are close to agreeing, maybe it is
semantics, I hope not, but I hope that we can agree that if we
are going to stop narcotics, it is technology and personnel.
The experts tell us that. It is not a wall. And I hope that we
can move from there.
The last question I will ask you, and limited time, they
asked me about your--your statements this morning, your
testimony, and I thought they were good, responsive in the most
part. The one thing I am stuck on, and many are, is this report
that you gave to this administration in June of last year about
the investigation of the President.
General Barr. You mean my memo?
Senator Durbin. Yes.
General Barr. The memo, yes.
Senator Durbin. And you said in there, ``Mueller should not
be permitted to demand that the President submit to
interrogation about alleged obstruction.'' You volunteered
that. I am trying to get around this. It sounds like it was an
effort on your part to ingratiate yourself with an
administration which is now nominating you for Attorney
General. I will give you one last chance. My time is up. Please
respond.
General Barr. Okay. Well, first, what I was saying there
was, again, based on speculation on my part, was that there has
to be an adequate predicate, and if he was relying on just the
firing of Mueller or the statement about Flynn in this specific
statute, those two things, I did not think it was an adequate
predicate. I was not saying--he may have other facts, he may
have other theories, that would support it. I was just
pinpointing that. Number two----
Senator Durbin. You meant the firing of Comey.
General Barr [continuing]. I can assure you I was not
trying to ingratiate myself with anybody. The furthest thing
from my mind was coming back into Government, I can assure you
that. And if I wanted to ingratiate myself or signal things,
there are a lot more direct ways of doing it than that.
Senator Durbin. Just for the record, I think you meant the
firing of Mr. Comey. I think you said ``Mueller'' earlier.
General Barr. Oh, okay, yes. What did I say? Oh, yes, the
firing of Comey. Yes, yes.
Senator Durbin. Thank you very much.
Senator Leahy. Just trying to help.
[Laughter.]
Chairman Graham. Thank you.
I will just take a couple of seconds to see if I can help
clarify this because I think it has been a very interesting
hearing. So if there was some reason to believe that the
President tried to coach somebody not to testify or testify
falsely, that could be obstruction of justice.
General Barr. Yes, under that--yes, under an obstruction
statute, yes.
Chairman Graham. So if there is some evidence that the
President tried to conceal evidence, that would be obstruction
of justice potentially, right?
General Barr. Right.
Chairman Graham. Your point is just simply firing somebody,
which is a personnel decision, is problematic for the system.
General Barr. Right, especially if you--what I am saying is
that does not fit under that statute.
Chairman Graham. No, I got you.
General Barr. Show me some other statute, but that statute,
no.
Chairman Graham. Yes, okay.
Who is next?
[Voice off microphone.] Senator Hawley.
Chairman Graham. Senator Hawley. Thank you.
Senator Hawley. Thank you, Mr. Chairman.
Mr. Barr, switching gears a little bit, yesterday, a
District--Federal District Court Judge in Pennsylvania struck
down the Trump administration's religious and moral exemptions
to the contraceptive mandate under the Affordable Care Act. As
part of this ruling, the District Court Judge issued a
nationwide injunction to any enforcement application of these--
of these rules. This is a growing trend. We have seen a lot of
this in the last 2 years. We have seen lots and lots of
District Courts all across the country in various contexts, in
the immigration context and others, issue nationwide
injunctions. And now, of course, for those listening at home,
the--the court--the entire Nation is not within the
jurisdiction of these courts. These courts are District Courts,
they reach specific geographic areas delineated by law, and yet
they are issuing, increasingly--increasingly commonly, these
injunctions that reach the entire country. This is a fairly
unusual and fairly recent practice.
In distinction of this, the District Court Judge in Texas
who recently heard a challenge to the Affordable Care Act case
did not issue a nationwide injunction, and therefore allowing
the appeals process to take its normal course, and, of course,
the ACA remains in full effect throughout that appeals process
because he did not issue a nationwide injunction.
So, my question is to you, are you concerned about this
growing practice of nationwide injunctions by Federal District
Courts? And what do you think ought to be done about it?
General Barr. Yes, I am very concerned by it. Earlier I was
talking about this and saying that I think it mistakes the
limitation on judicial power, which is a case or controversy
limitation and tries to grant relief to people who are not part
of the case or controversy that is being decided. And as you
said, it really started in the 1960s, and it has been picking
up steam, and the fact of the matter is, there are a lot of
District Court Judges, and you can usually find one who
somewhere in the country will agree with you, and so major
democratic decisions can be held up by one judge nationwide.
I am also concerned that there is another trend, which is
the willingness of some District Court Judges to wade into
matters of national security where, in the past, courts would
not have presumed to be enjoining those kinds of things. And
then the appeals process takes a long time. And so a lot of
damage can be done before it gets to the Supreme Court and you
get a definitive decision, and meanwhile, everything is stuck.
Senator Hawley. Can you just say more? You are concerned
about courts that wade into national security issues where
traditionally they have--they have hesitated to do so. Can you
just say more about that? What do you have in mind?
General Barr. Like the travel ban.
Senator Hawley. And the concern there is that----
General Barr. I mean, the President takes something based
on national security, and one--and--and the Constitution vests
that kind of judgment for that kind of emergency act or acts
that he has the authority to perform to protect the country,
he--he is politically accountable for that, and yet a judge
with a lifetime appointment sitting somewhere in the country
who does not have the access to the information and has no
political accountability can stop a national security measure,
you know, globally essentially, and it takes a long time to get
that sorted out. That--that is really troublesome to me.
Senator Hawley. Yes, I completely agree with you. Let me
ask you about another recent case, this one from the Southern
District of New York, today, in which the District Courts ruled
that the attempt to include--the attempt by the Commerce
Department to include a citizenship question on the census is
not permissible and has stopped the Commerce Department from
including that on the 2020 census.
The Department has already, of course--and the Department
of Justice is defending this decision, that including a
citizenship question, as was done for approximately 100 years
on the census, actually helps identify with greater accuracy
the residents of the country, who is and who is not a citizen,
and, of course, helps more accurately apportion and draw
congressional districts and make sure that representation is
fair and the Voting Rights Act is fairly enforced. Do you agree
with that position?
General Barr. Well, it is being litigated now, so I really
would prefer not to comment on it.
Senator Hawley. Do you anticipate that the Department of
Justice will continue its--its vigorous defense of the position
that the administration has taken?
General Barr. I think generally I have no reason to change
that position.
Senator Hawley. Thank you, Mr. Chairman.
Chairman Graham. Senator Whitehouse.
Senator Whitehouse. Thank you.
Mr. Barr, in order to perform its counterintelligence
function effectively, what should the Department of Justice and
the FBI know about the business relationships and entanglements
of senior officials with foreign interests and governments?
General Barr. Well, usually, you know, I guess usually
investigations are started because there is some act that comes
to the attention of the law enforcement agency that suggests
someone is being disloyal to the United States.
Senator Whitehouse. Except where working for a foreign----
General Barr. Excuse me?
Senator Whitehouse. Except where we require disclosures in
order to give the law enforcement folks that advantage of
knowing in advance when a senior official has a business
entanglement with a foreign interest or power.
General Barr. Yes.
Senator Whitehouse. So what should we know?
General Barr. What official are we talking about?
Senator Whitehouse. Well, let us start with the President.
General Barr. Are you suggesting that the President go
through a background investigation by the FBI?
Senator Whitehouse. No. I am suggesting that when there is
evidence that he has business relationships with foreign
interests, then that may be a factual determination that would
be of some note to our counterintelligence folks.
General Barr. Well, the financial disclosures that I think
are filed by other--I--I do not even know if Members of
Congress file financial disclosures. Do they? They do?
Senator Whitehouse. So do many officials in the executive
branch. So----
General Barr. Yes. You know, that is for--that is for
financial conflict. I do not think that is for
counterintelligence purposes.
Senator Whitehouse. Probably, because very few people have
business relationships with foreign interests, so it turns up
much more often in a conflict----
General Barr. Well, a business relationship with a foreign
interest is not ordinarily a counterintelligence concern.
Senator Whitehouse. Unless, of course, you are----
General Barr. Unless the person is a traitor.
Senator Whitehouse. Or in a position to make decisions that
are biased or influenced by those business relationships.
General Barr. Well----
Senator Whitehouse. Counterintelligence and treason are not
the same thing, are they?
General Barr. Counterintelligence, you are usually trying
to counter the intelligence activities of another country.
Senator Whitehouse. Correct. And you may want to head off
things, you may want to be aware of things, you may want to--
there are a whole lot of things short of treason that are the
counterintelligence function.
General Barr. Right, including, you know--
counterintelligence focuses usually on foreign intelligence
services and their activities. I think what we are----
Senator Whitehouse. With American officials----
General Barr. I think we are mixing, you know, apples and
grapes--or whatever here, because financial disclosure----
Senator Whitehouse. Well, maybe, or maybe you are just
having a hard time answering what ought to be a really easy
question, which is that when a senior Government official has
business relationships with foreign interests and powers, we
ought to know about it. That ought to be an easy proposition,
and in any other administration, it would be.
General Barr. Well, do Congressmen go through background
investigations to get access--access to classified information?
Senator Whitehouse. We--that is a whole separate question.
General Barr. No, it is exactly the same question.
Senator Whitehouse. We do a lot of--we do a lot more
reporting than we do----
General Barr. Well, your financial reporting, with all due
respect, is not the same as a background investigation. You are
elected by the people to hold an office, and, you know, you do
not get a background investigation to get on the Intelligence
Committee.
Senator Whitehouse. But we do have to do a lot of
reporting. Okay, if you do not want to answer it, I will move
on.
Let us talk about ``corruptly'' in obstruction cases. I am
not sure I heard you correctly, so I want to make sure you have
the chance to explain, but it sounded like you were saying that
the word ``corruptly'' used, as you said, adverbially, was a
requirement that there be some form of destruction or
interference with evidence. I have always read that term
``corruptly'' in obstruction of justice to impose an intent
requirement, which is also what the criminal resources manual
at the Department of Justice says, and what I think virtually
every Appellate Court has said. So it worries me if what you
are trying to do here is to redefine the obstruction statute by
narrowing the intent requirement and using the term
``corruptly'' to refer to something very different, which is
the actual physical corruption changing or----
General Barr. I think I can allay your concerns.
Senator Whitehouse. Can you--yes, could you do that?
Because----
General Barr. Yes. Because if you read--if you look at the
memo, you will see that my discussion of ``corruptly'' is not
up in the plain meaning section where I am talking about how
you interpret the statute. And my basic argument as to why the
statute covers destruction of evidence and hiding evidence and
stuff like that is based on the word, ``otherwise.'' Supreme
Court decisions in Yates and Begay, also the fact that if you
actually read it ``otherwise,'' it swallows up all--it becomes
a one-clause----
Senator Whitehouse. So----
General Barr. It wipes out everything else.
Senator Whitehouse. If I can cut to the----
General Barr. No, so then later on I point out in my memo,
I later point out that that reading is also supported by the
understanding of the word ``corruptly,'' which the Poindexter
case, D.C. Circuit case, I think had the most intelligent
discussion of the word ``corruptly,'' which is, it does refer
to the kind of activity that is necessary, which is perverting
a proceeding by corrupting it.
Senator Whitehouse. So in the event that the Mueller
investigation has turned up evidence of obstruction of justice
by the President or people close to him, you would follow the
Department of Justice's existing legal guidance with respect to
what that word ``corruptly'' means.
General Barr. My--my interpretation of the statute was not
predicated entirely on the word, ``corruptly.'' I was just
pointing out.
Senator Whitehouse. And it is not your intention to
change----
General Barr. No, it is not my intention.
Senator Whitehouse [continuing]. Department policy or
Department standards or Department definitions, particularly as
they may bear on obstruction by the President or people around
him.
General Barr. That is right.
Senator Whitehouse. Thank you.
Chairman Graham. We are about to vote. Let us do one more.
You deserve a break. You are doing great. When--Senator Ernst--
then we will take a break, go vote. I am going to vote and come
back, give you about 15 minutes, then we will just plow through
till we are done.
Senator Tillis.
Senator Tillis. I will be brief. One question, because
people have asked. They have gone to the wall, it almost sounds
like they are trying to suggest that you believe that the fix
for border security is a 2,300-mile physical barrier from the
Pacific to the Gulf. Do you believe that is the best way to
secure the border?
General Barr. I am not sure what the current thinking is on
this, but when I was----
Senator Tillis. Have you ever advocated for a wall or some
sort of monolithic structure as the plan for--to secure the
border?
General Barr. No. But I do believe we need to have a system
all the way across. When I was looking at this, you know, there
were certain areas where, you know, a wall did not make any
sense----
Senator Tillis. You used the word, ``barrier.'' I do not
think a 30-foot wall makes sense on a, for example, 1,000-foot
cliff----
General Barr. Right.
Senator Tillis [continuing]. Or one that is out in the
middle of nowhere. Would you agree that, you know, when we get
away from this childish, everybody saying it is a wall or not,
that we are probably--the President has repeatedly said that we
need wall structures, we may need steel-slat structures, we may
need to reinforce chain-link fences with all-weather roads, we
need aerostats so that we can identify people crossing the
border that are otherwise desolate and not very frequently
crossed.
General Barr. Yes.
Senator Tillis. We need border patrol agents. And we need
technology that interdicts all the illicit drugs at the legal
ports of entry, that those are all elements of a barrier that
actually will better prepare us to secure the border, eliminate
the poison coming across the border, and perhaps reduce the
amount of human trafficking that is coming through the legal
ports of entry. Is that a better way to characterize your
position on barriers----
General Barr. Yes.
Senator Tillis [continuing]. That neither are physical,
technological or otherwise?
General Barr. Yes.
Senator Tillis. Thank you. Also, the--I cannot leave
without going back to--you were talking about a time when I was
in my early thirties. I remember vividly just how dangerous
things were getting back in the early 1990s. I was 30 years old
in 1990. I remember vividly the news reports and everything
that we were trying to do to get ahead of the murderous
environment that we were in. I think some people are trying to
project, or, at least, maybe I have inferred, maybe
incorrectly, but project what you were trying to do or what you
were advocating for in the midst of a crisis, which was not
mass incarceration of low-level nonviolent criminals----
General Barr. Right.
Senator Tillis [continuing]. Onto your view of, let us say,
the First Step Act than what we are trying to do today. If
you--hypothetical--maybe you cannot answer it--but let us say
you were Attorney General when we were moving First Step, which
I supported. I supported criminal justice reforms in North
Carolina when I was Speaker of the House. Are you fundamentally
opposed to what we are trying to do with the First Step Act?
General Barr. No. I think some of those things make sense.
If I was--if I had been at the table, I probably would have
urged a few changes to it, but, you know, overall, I do not
have a problem with it.
Senator Tillis. And you are fully aware the President and
folks in the White House are supportive of the Act and----
General Barr. Yes.
Senator Tillis. So you will do everything you can to help
us state that intent, the statutory intent, of the things that
you will need to do is, implement in your role as Attorney
General--I do believe you are going to be confirmed----
General Barr. Right.
Senator Tillis [continuing]. To make sure that we get the
full positive effect that we will get out of the First Step
Act.
General Barr. That is right, Senator. And, you know, there
were a number of things being lumped together. What I espoused
in the 1990s, when we had the highest crime rates in our
history, was taking the violent, chronic violent, offenders
with long criminal history records of predatory violence, and
especially the ones that use guns in multiple offenses, and
getting them off the streets and into prison.
Senator Tillis. And I think you made the point that in some
cases there--there--you were able to more clearly present
evidence where they were involved in drug trafficking, but you
knew damn well that they were a part of what was murdering
these communities and making them very dangerous.
General Barr. Right.
Senator Tillis. And the point there was, you were using
every device possible to get them behind bars and off the
streets so that you could make those communities safe.
General Barr. Right.
Senator Tillis. And including the communities in Trenton,
New Jersey.
General Barr. Right. So the other thing, then there were
drug penalties. And some of the drug penalties, yes, were
draconian, and there were rational reasons for doing that at
the time. And sometimes people got--and we were not going after
people who needed treatment who were--you know, just because
they were addicts, we were going after the people who were
distributing the drugs. And, you know, in the current
circumstance, I understand there is data to support what was
done in First Step. I understand those changes on the drug
front, but I would not let up on chronic violent offenders
because they commit a disproportionate amount of the predation
in society.
Senator Tillis. I hope you do not--because they need to go
behind bars for a very, very long time.
Thank you.
Chairman Graham. All right. Thank you, Mr. Barr.
What we will do, we will come back with Senator Klobuchar.
We are going to take a 15-minute break, and hopefully by then
both of us can vote and come back and continue and we are just
going to plow through till we get done today. So we will be in
recess for 15 minutes.
[Whereupon the Committee was recessed and reconvened.]
Senator Ernst [presiding]. We will go ahead and reconvene
the hearing.
I will recognize Senator Klobuchar.
Senator Klobuchar. Thank you very much.
Thank you, Mr. Barr.
Thanks to your grandson for the mint. That was very nice.
In your previous confirmation hearing for Attorney General,
you stated that the Attorney General is the President's lawyer.
You have also said that the Attorney General's ultimate
allegiance must be to the rule of law. So I am going to
characterize that as the people's lawyer. And there have been
times throughout our history, including during Watergate, when
the personal interests of the President do not align with the
interests of the country. In those critical moments, is the
Attorney General the people's lawyer or the President's lawyer?
General Barr. Well, as--the reason these--I referred to the
Attorney General as the President's lawyer is because in 1789,
they said that the Attorney General is to provide legal advice
to the President and the Cabinet.
Senator Klobuchar. Yes.
General Barr. And that is in their official capacity. And
my view on that is that, like any lawyer, you give the best
advice as to your view of the law, but if the President
determined that he wanted to do something that you thought was
still a reasonable construction of law, even though you might
not have decided that way as an Article III judge, just as you
support congressional enactments that are----
Senator Klobuchar. Okay.
General Barr [continuing]. Reasonable, you do the same for
the President.
Senator Klobuchar. But how about in a situation like
Watergate?
General Barr. So I--if the President directs an Attorney
General to do something that is contrary to law, then I think
the Attorney General has to step down.
Senator Klobuchar. Okay.
General Barr. It is that simple.
Senator Klobuchar. Thank you.
Under the Special Counsel regs, the Special Counsel must
send a second report to Congress documenting any instances
where the AG prohibited the Special Counsel from taking an
action. Will you follow those regulations and send the report
to Congress?
General Barr. Yes.
Senator Klobuchar. Thank you.
And then a few just things that I care a lot about. You had
a great discussion with Senator Booker about the First Step Act
and nonviolent drug crimes. Will you support the use of drug
courts, something my county when I was prosecutor was one of
the first to do that in a big way? And now we have Federal drug
courts. Will you support them for nonviolent offenders?
General Barr. Yes. I think they are generally a good idea.
Senator Klobuchar. Okay. And there is a bill that I have
that we are reintroducing on guns and stalking. And it is a
pretty narrow bill. It fills a loophole that is called
sometimes the boyfriend loophole. I do not know if you know
what that is, but it is when someone is not married, but they
are living together. And then the question is, would the gun
laws apply? And we actually had a hearing. And a number of the
Republican witnesses agreed that they should. So that is part
of it. And then the other involves stalking and whether or not
that could also fall under the prohibitions on guns. So we had
the meeting on guns at the White House, and the President said
he thought the bill was terrific. I am just going to give you--
--
General Barr. Okay.
Senator Klobuchar [continuing]. Lead you into that, but----
General Barr. It is----
Senator Klobuchar [continuing]. And it has not passed yet,
but I am just asking you to review it.
General Barr. Absolutely.
Senator Klobuchar. Okay. And I hope we would have your
support. It would be nice to get that done.
And then I also have a second bill with Senator Cornyn, the
Abby Honold Act. And the bill would expand the use of evidence-
paced practices in responding to sex assault crimes. And I hope
you would look at that as well. And, it is part, right now, of
the Senate package on the Violence Against Women Act. And, my
bill aside, I hope that you would support the reauthorization
of that bill.
General Barr. Uh-huh.
Senator Klobuchar. You would? Of the Violence Against Women
Act?
General Barr. Well, I have not seen it, but if it is
reauthorizing what is in effect now, yes.
Senator Klobuchar. Okay. And, then, I just want to end here
with a second chance, second go-around on a question. I decided
to leave my antitrust questions for the record----
General Barr. Okay.
Senator Klobuchar [continuing]. So I can ask this. I asked
earlier today this question because I really meant it as an
opportunity for you to kind of address your troops--and not a
``gotcha'' question. So, immigration debates aside, putting
aside the differences in this House and in the White House--and
we have now thousands and thousands of extraordinary people
devoting themselves to a good cause, and that is justice at the
Department of Justice and the FBI, including a few of them
right behind you in the front row. And they, many of them,
right now are either furloughed or they are doing their jobs
every single day without pay. And if you get confirmed, you
will be their leader. And do you want to say anything to them
or about them? And I appreciate it if you would.
General Barr. Well, thank you, Senator, for giving me the
opportunity because one of the reasons I want to do this, serve
as Attorney General, is because of the opportunity to work with
the outstanding people at the Department of Justice. And I
think the country can be very proud of them as their--of their
dedication as they stand their post and continue to perform
their mission. It is a great sacrifice for many of them with
the paychecks not coming in. So I hope this ends soon. But one
of the reasons the Department is such an important institution
to me and a big part of my life is, the quality of the people
there. And I am looking forward, hopefully, if I am confirmed,
to joining them again.
Senator Klobuchar. Okay. Thank you very much.
General Barr. Thank you.
Senator Ernst. Thank you, Senator Klobuchar.
I love the upward mobility on this Committee. This is my
first Committee hearing.
[Laughter.]
Senator Ernst. And I get to chair. So thank you. I
appreciate it very much.
I will go ahead with my second round of questioning. And
there has been a lot of discussion so far about the Mueller
investigation, which I do think is very appropriate, and as I
understand it, the underlying premise of that investigation was
to determine if there was collusion by an American entity or
person with the Russians during the 2016 election cycle. Is
that accurate?
General Barr. That is my understanding.
Senator Ernst. Okay. And we do know that there was Russian
meddling in our 2016 election cycle. We do know that. And what
can the DOJ do in the future to prevent--whether it is Russia
or other--foreign entities from interfering with our elections
process?
General Barr. Yes. Well, I adverted to in my opening
statement is, obviously, the Department is a law enforcement
agency. And so we can use our law enforcement tools. And the
Special Counsel has already brought cases against Russian
nationals for their activities. And the current leadership of
the Department is following suit. And I would like to build on
that experience to sharpen our legal tools to go after Russian
nationals, but nationals of any country that are interfering in
our elections. I also think that the FBI as part of the
intelligence community can perform, you know--can use all of
their intelligence tools to counteract the threat. And, as I
said in my opening statement, I think we have to look at all
our national resources, such as diplomacy, economic sanctions,
other kinds of countermeasures, to deter and punish foreign
countries that seek to meddle in our elections.
Senator Ernst. Absolutely. So a whole-of-government
approach----
General Barr. Uh-huh, yes.
Senator Ernst [continuing]. As we look at those entities.
Thank you very much.
I was really pleased to hear Senator Klobuchar mention the
Violence Against Women Act. We had a discussion about that in
my office.
General Barr. Yes.
Senator Ernst. So thank you. I did serve as a volunteer at
an assault care center while I was at Iowa State University--
just a few years ago.
[Laughter.]
Senator Ernst. But the Violence Against Women Act is in
desperate need of reauthorization, as Senator Klobuchar said.
In 2016 alone, over 1 million services were provided to victims
and their families through programs. And the Office on Violence
Against Women is actually housed within the DOJ, as you are
aware. In Fiscal Year 2017, my home State of Iowa was awarded
$8.7 million from 13 different OVW grant programs. And these
dollars do go toward programs that are in dire need, especially
in rural areas like mine. So what I would like to know from
you, sir, is how you will work to further this engagement and
to address violence against women and families through VAWA or
through the Office that is located within DOJ.
General Barr. Right. And that Office is not familiar to me
because it did not exist, obviously, when I was there before.
So, first, I am going to familiarize myself with the Office;
its work; its programs; and, you know, strongly support that.
Senator Ernst. Thank you very much.
Domestic violence is largely a State crime. How can we
better assist between the DOJ and State officials in this area?
General Barr. Again, this is not an area of expertise that
I have right now, but I would imagine that technical support
and grants are probably the most effective means for the
Federal Government to assist.
Senator Ernst. Okay. Very good. Well, I appreciate that so
much.
I have just got a little bit of time left. I do want to go
back to the issue that has been brought up many times over
about our border security. I, as well, agree that there are
many ways that we can use to secure our border, whether it is
through technology, whether it is through a physical barrier,
understanding, as has been rightly pointed out, that a number
of the interdictions of drugs crossing the border are actually
done at those ports of entry. However, I think there are a lot
of families that are very concerned about the fentanyl that
might be coming across those areas that are not watched----
General Barr. Right.
Senator Ernst [continuing]. So families that have lost
their loved ones, I think it does not matter what percentage is
coming through a port of entry or elsewhere. We want to stop
it. So your comment?
General Barr. That is right, Senator. And the other thing
is, that the statistics on the port of entry were the
interdictions. That is the stuff we catch.
Senator Ernst. Right.
General Barr. It does not necessarily reflect the stuff
that is getting across elsewhere that we are not catching.
Senator Ernst. Absolutely. Thank you very much, Mr. Barr.
Chairman Graham [presiding]. Thank you.
Senator Hirono.
Senator Hirono. Thank you very much.
Mr. Barr, you have written and spoken about morality and
your worries about the destruction of--and I am quoting you--
``any kind of moral consensus in society,'' and you wrote quite
extensively on this when you were Attorney General. And you
have been described as an institutionalist: someone who cares
about the Department of Justice and the Government. That is a
good thing. But you have agreed to work for someone who
relentlessly attacks the press, calling them ``fake news'' and
``the enemy of the people.'' The President criticizes the FBI
nonstop. He belittles generals. He calls the Mueller
investigation a ``witch hunt.'' He believes the claims of Putin
over the judgment of our intelligence community. And it has
been objectively verified that he lies every single day and
changes his mind on a regular basis. So, are you concerned,
having written about morality and consensus in our society, are
you concerned about the way Donald Trump undermines the
institutions in our society that help us to maintain a moral
consensus?
General Barr. No, Senator. And I would like to make a point
about the ``witch hunt,'' which is, we have to remember that
the President is the one that, you know, has denied that there
was any collusion and has been steadfast in that. So presumably
he knows facts. I do not know facts. I do not think anyone here
knows facts. But I think it is understandable that if someone
felt they were falsely accused, they would view an
investigation as something like a witch hunt, where someone
like you or me who does not know the facts, you know, might not
use that term.
Senator Hirono. Well you are certainly coming to his
defense. As I said, it has been objectively verified that he
lies on a regular basis.
I have a question about immigration. In your written
statement, you wrote that, ``We must secure our Nation's
borders. And we must ensure that our laws allow us to process,
hold, and remove those who unlawfully enter.'' And this kind of
sounds like a Jeff Sessions zero-tolerance policy. I did ask
you that before, whether you would continue to go after people
who are not coming through our regular checkpoints. Would you
go after them for deportation?
General Barr. I thought I said that our zero-tolerance
policy is to prosecute people who are referred to the
Department by DHS for illegal entry.
Senator Hirono. Well, under a no-tolerance policy,
everybody who comes in not through the checkpoints would be
deemed, I would say, subject to prosecution. So----
General Barr. No.
Senator Hirono. No?
General Barr. Anyone who comes in illegally and is going to
be referred to us for a violation of the legal-entry statute
will be prosecuted.
Senator Hirono. Yes.
General Barr. But DHS is not referring--as I understand it,
is not referring families so that there is no more separation.
Senator Hirono. Yes. Instead, we have a lot of them in
family detention facilities. I have visited them. What about
the 11 million or so undocumented immigrants in our country
because you say that we have to process, hold, and remove those
who unlawfully enter? Now, the 11 million or so undocumented
people have unlawfully entered, I mean, a number of them
because they are visa overstayers. So what do you propose to do
with these people who have been here in our country for a long
time, many of whom work and who pay taxes?
General Barr. Well, I think it just highlights the need for
some--for Congress to address the whole issue of our
immigration laws.
Senator Hirono. So do you support comprehensive immigration
reform, an effort that we undertook in the Senate in 2013?
General Barr. I support addressing some of the problems
that are creating the influx of illegal aliens at this point
and also addressing the question of border security.
Senator Hirono. Well, what about the 11 million
undocumented people who are already here?
General Barr. Well, at--Congress is the--is able to
determine that policy as part of immigration legislation.
Senator Hirono. So, that is the largest group of
undocumented people. They are the largest group of people who
are here illegally, as you say you would like to----
General Barr. The zero-tolerance policy, as I understand
it, has to do with people who are coming in illegally.
Senator Hirono. Yes, I know that, but you know that when I
talk about the 11 million people, that they are undocumented.
They live in the shadows. Many of them do pay taxes. And so
that is the largest group that is here. This is why we worked
really hard for comprehensive immigration reform. I hope that
you support that kind of effort. Do you believe birthright
citizenship is guaranteed by the Fourteenth Amendment?
General Barr. I have not looked at that issue.
Senator Hirono. It says right there in the Fourteenth
Amendment that anyone born basically--born in this country, is
a U.S. citizen. And there are those who think that that should
be done away with. Are you one of them?
Senator Kennedy [presiding]. Could you give us a brief
answer, Mr.----
General Barr. Yes. As I say, I have not looked at that
issue legally. That is the kind of issue I would ask OLC to
advise me on, as to whether it is something that is appropriate
for legislation. I do not even know the answer to that.
Senator Hirono. Well, it has certainly been interpreted for
a long time as saying that people who are born in this country
are citizens.
Shall I continue or should I ask for a third round?
Senator Kennedy. I think the Chairman would like to finish
today, and I think your time has expired.
Senator Hirono. So I cannot ask for a third round?
Senator Kennedy. I am fine. You can have a third, fourth,
fifth round.
Senator Hirono. Thank you.
Senator Kennedy. But I am not Chairman.
Senator Hirono. I just have a few more--or I can wait.
Senator Kennedy. Okay. Why do we not do that?
Senator Hirono. Okay. Thank you.
Senator Kennedy. Thank you, Senator.
I think I am next, Mr. Barr. This--we talked about this
earlier. I think we can agree, can we not, that hundreds of
thousands, millions of words have been written speculating
about what happened at the Department of Justice and the FBI in
the 2016 election with respect to the two-party nominees? Can
we agree on that?
General Barr. Yes.
Senator Kennedy. Can we agree that the American people have
a right to know what happened at Justice and the FBI?
General Barr. Yes.
Senator Kennedy. Okay. Why do we just not declassify all of
the documents and show them to the American people and let the
American people draw their own conclusions here?
General Barr. Well, I am not in a position to say because I
do not have access to the documents, and I do not know what it
entails.
Senator Kennedy. Well, it entails the truth, does it not?
General Barr. Yes, but presumably if they are classified,
you know, there could be collateral consequences. And I am not
in a position to make that judgment.
Senator Kennedy. Well, I mean, is your mind open on that,
Mr. Barr, or----
General Barr. I think, generally----
Senator Kennedy. I do not understand why, properly
redacted, those documents have not been shown to the American
people. They are smart enough to figure it out.
General Barr. I think, ultimately, the best policy is to
let the light shine--if there have been mistakes made, the best
policy is to allow light to shine in and for people to
understand what happened, but sometimes, you know, you have to
determine when the right time to do that is.
Senator Kennedy. I understand. I am asking that you
seriously consider that. And I am talking about the
investigations with respect to Secretary Clinton and President
Trump. Clearly, the FBI and the Department of Justice, I am not
saying that they--either was imprudent to do so, but we have
seen bits and pieces. And there has been a lot of speculation
and innuendo. And people have drawn conclusions based on
incomplete facts. And it would seem to me that, if for no other
reason but the integrity of the FBI and Justice Department,
both of which I hold in great esteem, we should redact the
portions that would endanger somebody and show the American
people the documents. And I wish you would seriously consider
that.
General Barr. I will, Senator.
Senator Kennedy. And I--having watched you here today, I
think you will. I think you will give it serious consideration.
General Barr. Yes.
Senator Kennedy. Let me ask your opinion on something else.
About 10 years ago, we had a problem with our banking system in
America. And we had a lot of bankers who made loans to
borrowers when the bankers and the borrowers knew the money was
not going to be paid back. That is called fraud, and it is
illegal. And then some of those same bankers and other bankers
took those garbage loans, and they packaged them together,
packaged them together into security. And they sold them to
investors without telling the investors that the underlying
loans were toxic. That is called securities fraud. And I do not
know how many billions of dollars of this bad paper was sold,
but I know a lot of people in the banking industry got rich
doing it. And then--and, as a result, the American economy and
almost the world economy almost melted down.
Now, the Department of Justice prosecuted virtually no one,
no banking executives over this. Why? I realize they made the
banks pay some money, but I saw banking fraud, and I saw
securities fraud. And nobody was prosecuted.
General Barr. I cannot answer that, Senator, but I can say
that I was in charge of the S&L cleanup. After it was over, it
was put under me in the Deputy's Office. And----
Senator Kennedy. You folks prosecuted people.
General Barr. We prosecuted a lot of people and very
quickly, and we cleaned it up very quickly. My--how many did we
get?
Mr. Raphaelson. Over 900 convictions.
General Barr. Over 900 convictions in very short order.
Senator Kennedy. I do not think we had nine this time. I
mean, what message does that send to the American people?
General Barr. Well----
Senator Kennedy. I mean, I totally think the message it
sends is that the people at the top can cut corners and get
away with it.
General Barr. What I can say, Senator, is, I think my
experience with the S&L shows that I am not afraid of going
after fraud----
Senator Kennedy. I know that.
General Barr [continuing]. At the corporate level. And it
is one of the most successful, I think, Government responses to
that kind of whole-sector meltdown that there has been. So I am
very proud of the job that was done by the Department on that.
Senator Kennedy. You know, as we say in Louisiana, you were
mean as a mama wasp.
[Laughter.]
Senator Kennedy. And you did the right thing, but I do not
think we did the right thing with the banking meltdown.
Senator Coons.
Senator Coons. Thank you, Senator Kennedy.
Thank you, Mr. Barr.
You have declined or, I would say, refused to commit to
following the advice of the career ethics officials at DOJ with
regards to recusal from the ongoing Special Counsel
investigation. Will you, at least, commit to notify this
Committee once you receive the ethics official's guidance, tell
us what it was, and explain whether you agree or disagree with
it?
General Barr. To tell you the truth, Senator, I do not know
what the rules are and what the practice is, but, you know, off
the top of my head, I do not think I would have an objection to
that.
Senator Coons. So you would be comfortable letting us know
that you had received an ethics opinion and either declined----
General Barr. Yes. But I am not sure what the practice and
the rules are. I generally try to follow the rules.
Senator Coons. You said earlier in this hearing, you have
an interest in transparency with regards to the final report of
the Mueller investigation, but I did not hear a concrete
commitment about release. And I think this is a very
significant investigation. And you have been very forthcoming
about wanting to protect it. The DOJ has released information
about declination memos, about descriptions of decisions not to
prosecute in the past. I will cite the Michael Brown case, for
example. Would you allow Special Counsel Mueller to release
information about declination memos in the Russia investigation
as he sees fit?
General Barr. I actually do not think Mueller would do that
because it would be contrary to the regulations, but that is
one of the reasons I want to talk to Mueller and Rosenstein and
figure out, you know, what the lay of the land is. I am trying
to----
Senator Coons. But if appropriate under current
regulations, you would not have any hesitation about saying
prosecutorial decisions should be part of that final report?
General Barr. As I said, I want to get out as much as I can
under the regulations.
Senator Coons. You also----
General Barr. I think it--that is the reason I say it is
vitally important.
Senator Coons. Thank you.
General Barr. It is related to my feeling that it is really
important----
Senator Coons. It is.
General Barr [continuing]. To, you know, let the chips fall
where they may and get the information out.
Senator Coons. You also said in response to my first round
of questions that the Special Counsel regulations should not be
rescinded during this investigation. Just to be clear, you
would refuse to rescind them if the President asked, even if
that meant you would have to resign?
General Barr. Well, that came up in the context of wanting
to change the rules so Mueller could be fired.
Senator Coons. Right.
General Barr. That--where there was no good cause.
Senator Coons. No good cause, correct.
General Barr. And I said there, yes, I would not agree to
that.
Senator Coons. There is another ongoing investigation in
the Southern District of New York in which I would argue the
President is implicated as ``Individual Number 1.'' If the
President ordered you to stop the SDNY investigation in which
someone identified as ``Individual 1'' is implicated, would you
do that?
General Barr. Well, that goes back to an earlier answer--
explanation I gave, which is every decision within the
Department has to be made based on the Attorney General's
independent conclusion and assessment that it is in accordance
with the law. And so I would not stop a bona fide lawful
investigation.
Senator Coons. So if the President sought to fire
prosecutors in the Southern District of New York to try and end
the investigation into his campaign, would that be a crime?
Would that be an unlawful act?
General Barr. Well, I mean, that one--usually, firing a
person does not stop the investigation. That is one of the
things I have a little bit of trouble accepting, you know. But
to--the basic point is, if someone tried to stop a bona fide
lawful investigation to cover up wrongdoing, I would resign.
Senator Coons. Deputy Attorney General Rosenstein has said
publicly your memo had no impact on the Special Counsel
investigation. If you are confirmed and you are supervising the
Special Counsel investigation, would you order the Special
Counsel's Office to accept and follow the reasoning in your
memo?
General Barr. I would probably talk to Bob, Bob Mueller,
about it. If--you know, if I felt there was a difference of
opinion, I would try to work it out with Bob Mueller. At the
end of the day, unless something violates the established
practice of the Department, I would have no ability to overrule
that.
Senator Coons. You were Attorney General when President
Bush pardoned six administration officials charged with crimes
arising from the Iran-Contra scandal, and you encouraged the
President to issue those pardons. Is it permissible for a
President to pardon a member of his administration in order to
prevent testimony about illegal acts?
General Barr. Is it permissible under what?
Senator Coons. Would it strike you as obstruction of
justice for him to exercise his presidential pardon power for
the purpose of preventing testimony?
General Barr. Yes. I think that if a pardon was a quid pro
quo to altering testimony, then that would definitely implicate
an obstruction statute.
Senator Coons. Would it be permissible for the President to
pardon family members----
General Barr. Let me just----
Senator Coons [continuing]. Simply because they are family
members?
General Barr. Let me say this. No. I am sorry. Go ahead.
Senator Coons. Two last questions, and then we will be
done. Do you think it would be permissible for the President to
pardon a family member simply because they are a family member
and where the purpose, the motive, is unclear? And do you think
it would be permissible for a President to pardon himself?
General Barr. Yes. So here, the problem is, under the
Constitution, there are powers, but you can abuse a power. So
the answer to your question in my opinion would be yes, he does
have the power to pardon a family member, but he would then
have to face the fact that he could be held accountable for
abusing his power or if it was connected to some act that
violates an obstruction statute, it could be obstruction.
Senator Coons. How would he be held accountable?
General Barr. Well, in the absence of a violation of a
statute, which is--as you know, in order to prosecute someone,
they have to violate a statute. In the absence of that, you
know, then he would be accountable politically.
Senator Coons. Thank you for your interest today.
Chairman Graham [presiding]. Senator Blackburn.
Senator Blackburn. Thank you, Mr. Chairman.
And, Mr. Barr, thank you for your patience and for staying
with us today.
A couple of questions. We have talked about border security
and immigration law. And that is something that I want to
return to. I appreciated your comments about going after the
problem at the source, and I think that is so vitally important
when we talk about the immigration issues and we look at what
has happened when you are talking about drug traffickers and
human traffickers, the gangs that are coming across that
Southern border. And I do think that a barrier is there. But
one of the symptoms, if you will, of an open-border policy has
been the sanctuary city policy. And that pertains to those that
are illegally in the country. And I tell you what, it is just
absolutely heartbreaking to me every time I meet with an Angel
mom and I hear these stories and then after Officer Singh was
murdered, hearing that law enforcement, local law enforcement,
officer talk about, and talk with specificity about, how
sanctuary policies emboldened those that were illegally in the
country. And when you look at this practice of sanctuary city,
you know, if we do not do something consistent in this realm,
then what is to say you do not develop sanctuary cities for
other violations of the law, whether it is tax law or
environmental protection law or traffickers or any others? So
talk to me for just a minute about what your connection will be
between dealing with the sanctuary cities and then dealing with
some of these problems at the source. How do you--you have
talked about compartmentalizing and putting lieutenants in
charge, and this is an issue that affects every single
community because until we stop some of this, we are going to
have every State a border State and every town a border town.
General Barr. So, you know, I just think of it,
immigration, you have pull factors and push factors. There are
factors down in Latin America that are pushing people up, and
there are attractions to the United States that are pulling
them up. And one of the--you know, a--I think a pull factor is
things like sanctuary cities, the idea that you can come in and
not be--and can get away with flouting our laws in coming in.
So I think that is one of the concerns I have about sanctuary
cities.
The second concern I have is that the sanctuary city
problem is a criminal alien problem. I think a lot of people
are under the impression that sanctuary cities are there to
protect, you know, the illegal aliens who are quietly living as
productive members of society and paying their taxes, as
Senator Hirono said. It is not. The problem with sanctuary
cities is that it is preventing the Federal Government from
taking custody of criminal aliens, and it is a deliberate
policy to frustrate the apprehension of criminal aliens by the
Federal Government. So I do not think those cities should be
getting Federal----
Senator Blackburn. Do you think it would be--would it be
abided with any other violation of U.S. law?
General Barr. No, I do not. And there is a legal issue,
which is the question of, what is the word, commandeering. You
know, the States argue that for their law enforcement officers
who have custody of a criminal alien to notify the Federal
Government on a timely basis, so that they can turn that
fugitive essentially over to the Federal Government, that that
is commandeering State apparatus under the Printz case, and,
therefore, it is--you know, the Federal Government should not
have that power.
That is the issue. And I personally am very skeptical of
the commandeering argument. That was adopted where the Federal
Government passed gun control legislation, and basically were
ordering the States to set up the whole background check, and
everything else.
The idea here is simply one law enforcement agency
notifying another, and holding the person until they can be
picked up. So I am skeptical that that is commandeering. But
that is the legal issue.
Senator Blackburn. My time is expiring, and I know we need
to finish this up, but I do look forward to talking with you
again about China----
General Barr. Uh-huh.
Senator Blackburn [continuing]. And the intellectual
property violations. The way they go in and re-engineer, steal
from our innovators, and, of course, the way they are forcing
fentanyl, and illicit drugs----
General Barr. Uh-huh.
Senator Blackburn [continuing]. Through our ports and
through that open southern border that we have to secure.
General Barr. Uh-huh.
Senator Blackburn. Thank you. Yield back.
Chairman Graham. Senator Blumenthal.
Senator Blumenthal. Thanks, Mr. Chairman.
I want to join in thanking you for your patience. I am
hoping that I can get through all my questions on this round. I
do not know whether the Chairman will accede to a short third
round, but let me just try as best I can.
On the pardon issue and accountability, you would agree
that the President pardoning someone in return for changing his
or her testimony would be an abuse of the pardon power, and the
President should be held accountable.
General Barr. Well, a quid pro quo to change testimony
could potentially be obstruction.
Senator Blumenthal. Or for not testifying at all----
General Barr. Uh-huh.
Senator Blumenthal [continuing]. Would be obstruction of
justice. If the Special Prosecutor or the prosecutor anywhere
else came to you with proof beyond a reasonable doubt of that
kind of obstruction, or any other crime, talking proof beyond a
reasonable doubt, would you approve an indictment of the
President?
General Barr. That is the kind of thing I am not--I am not
going to answer off the top of my head. But if we take it out
of this context and say if someone--if someone were--if a
prosecutor came and showed that there was a quid pro quo by
which somebody gives something of value to induce a false
testimony or----
Senator Blumenthal. It would be a crime.
General Barr. Yes.
Senator Blumenthal. And the question is whether the
President could be prosecuted while in office. I happen to
believe that he could be, even if the trial were postponed
until he is out of office. But because the statute of
limitations might run for any other number of reasons, a
prosecution would be appropriate. Would you agree?
General Barr. You know, for 40 years the position of the
executive branch has been, you cannot indict a sitting
President.
Senator Blumenthal. Well, it is the tradition, based on a
couple of OLC opinions. But now it is potentially an imminent,
indeed, immediate possibility, and I am asking you for your
opinion now, if possible, but if not now, perhaps, at some
point.
General Barr. Are you asking me if I would change that
policy?
Senator Blumenthal. I am asking you what your view is,
right now.
General Barr. You know, I actually have not read those
opinions in a long time, but I see no reason to change them.
Senator Blumenthal. Well, I am happy to continue this
conversation with more time and another opportunity.
General Barr. Sure.
Senator Blumenthal. I want to ask you about the Southern
District of New York, which I believe is as important as the
Special Prosecutor. As I mentioned earlier in my question
before, the President has been named there, ``Individual Number
1,'' as an unindicted co-conspirator.
If the President fired a United States Attorney, would you
support continuing that investigation, even under the civil
servants, the career prosecutors, who would remain? Assuming it
is a legitimate prosecutor.
General Barr. Yes. And I have tried to say it a number of
different ways. I believe, regardless of who or what outside
the Department is trying to influence what is going on, every
decision within the Department relating to enforcement, the
Attorney General has to determine independently that--that it
is a lawful action. And if there was a lawful bona fide
investigation that someone was trying to squelch, I would not
tolerate that.
Senator Blumenthal. Putting it very simply, you would
protect that investigation against political interference, as
hopefully you would do----
General Barr. With any investigation in the Department.
Senator Blumenthal. Exactly.
Let me move on to something unrelated, if I may. In the
early 1990s, thousands of Haitians tried to flee persecution in
their own country by coming to the United States by boat. As
you will remember, you oversaw, I believe, a program that sent
thousands of them--some of them were HIV positive----
General Barr. Uh-huh.
Senator Blumenthal [continuing]. To Guantanamo Bay.
General Barr. Uh-huh.
Senator Blumenthal. These asylum seekers were kept at
Guantanamo Bay for 18 months. A Federal Judge in the Eastern
District of New York described the living conditions in
Guantanamo Bay by saying that asylum seekers were forced to
live in camps ``surrounded by razor barbed wire,'' and
compelled to ``tie plastic garbage bags to the sides of the
building to keep the rain out.''
In an interview in 2001, at the Miller Center, you defended
this program. Do you have regrets about it now, and am I
correct in saying that when these asylum seekers first started
coming to the United States, it was your position that they
should be kept there indefinitely?
General Barr. I really appreciate the opportunity to
address this.
So in 1991, Aristide was overthrown in Haiti, and there was
sort of a mass exodus from Haiti. And up until then the policy
of the United States had been forced--until that time,
administrations had forcibly returned Haitian asylum seekers
and so forth without any kind of process.
It was a humanitarian problem, because a lot of these boats
were sinking. It was a 600-mile journey. So the Coast Guard--
there were two different issues. One issue is the processing of
those who are healthy, and the second issue is the HIV.
In a nutshell, the processing we started actually giving
them, you know, abbreviated asylum, hearings, on the ships.
Eventually, we moved some of that to Guantanamo. And we were
admitting to the United States 30 percent, which is the highest
it has ever been. I think before that it was just miniscule.
Later, when the Clinton administration adopted our policies, it
went down to 5 percent, I am told.
But in any event, then it became so overwhelming that we
forcibly repatriated the Haitians, because we felt that most of
them, the conditions were changing. We did not think that there
was a threat in Haiti, and we forcibly--we were just
overwhelmed, and we forcibly sent them back to Haiti.
Meanwhile, HIV was an exclusion. You could not admit anyone
with HIV, and this was adopted by the Senate, and then in the
first year of the Clinton administration, the Clinton
administration signed a bill that kept it as an exclusion, you
cannot admit someone with HIV, except by case-by-case waiver,
based on extreme circumstance.
So what we did with the HIV people is we first screened
them for asylum, because if they could not claim asylum, then
they would not be admitted, and then we started a case-by-case
review.
I started admitting them on a case-by-case basis, where
cases could be made that there was a particular reason for
doing it, like pregnant women, and people who had not yet
developed full-blown.
So I think there was a slowing down of the processing,
because people felt that the Clinton administration, which at
the time was attacking these policies, was going to be more
liberal. And so people thought, well, why should we go through
this process with Bush, when Clinton's right around the corner.
Clinton came in, adopted our policies, and defended them in
court, continued forced repatriation, continued the exclusion
of HIV. As part of settling a case, he brought in 200----
Senator Blumenthal. Which did not necessarily make it
right.
General Barr. It was right under the law.
Senator Blumenthal. Did you favor keeping those Haitians in
Guantanamo indefinitely?
General Barr. No.
Senator Blumenthal. And let me ask you----
General Barr. I think most of the articles at the time said
we were sort of in a Catch 22. We were trying to process the
HIV people on a case-by-case basis. And, in fact, the lawyers
who--we, by the way, agreed to have lawyers come down and
represent these people in the asylum hearings at Guantanamo.
In the book written by them, they say right at--we were
making progress. It stopped when the Clinton administration was
elected.
So we were in this Catch 22 on the HIV, and I had staff
members go down there to Guantanamo, and they did not report,
you know, inhumane conditions, or anything like that. And that
is not mentioned, I do not think, in the book written by the
lawyers who represented them.
So it was a mass exodus situation, and we did the best we
could.
Senator Blumenthal. Would you do it again in exactly the
same way, if you had it to do again?
General Barr. I mean, I do not know. It would depend on the
circumstances, and also depend on whether we thought this was
really a case of persecution.
Senator Blumenthal. I ask you this: Would you again house
asylum seekers in Guantanamo?
General Barr. Well, the Clinton administration did. In
fact, they doubled--they doubled the--and they started putting
other nationalities in there, too.
Probably not, because of the associations of Guantanamo
now.
Senator Blumenthal. Would you segregate asylum seekers in
some other way then?
General Barr. Well, I think it is always--given the abuses
of the asylum system right now, I would always prefer to
process asylum seekers outside the United States.
Senator Blumenthal. And do you think we should do a better
job with asylum seekers in this country, in terms of the kinds
of facilities that we provide, particularly for women, and
children, and families?
General Barr. Oh, absolutely. Yes. I think we--if we are
going to detain families, I think those have to be facilities
that are safe and appropriate for young children.
Senator Blumenthal. Thank you, Mr. Chairman.
Chairman Graham. Senator Lee.
Senator Lee. Thank you very much, Mr. Chairman.
Thanks again, to you, Mr. Barr, for being willing to answer
all these questions today.
I want to continue on some of the same theme that Mr.
Blumenthal raised a moment ago. He raised a couple of questions
regarding immigration, regarding our asylum process.
I think it is significant to note here that we have some in
our political discourse today who are suggesting that the
enforcement of our immigration laws and the enforcement of our
border is somehow immoral, that it is somehow wrong.
We have had people who, in one of the major political
parties, multiple candidates, be elected, campaigning, among
other things, on either eviscerating ISIS power, or abolishing
the agency altogether.
As you noted earlier today, you gave a speech back in 1992,
and you were one of the first people I remember using the
metaphor of, you know, wanting to make sure that our immigrants
come to this country through the front door, and not through
the back door, and not through a side window, or something to
that effect.
Can you just sort of describe to us why you think it is
important that we draw a clear moral distinction between the
enforcement of immigration laws, between legal immigration and
illegal immigration?
Is this the functional equivalent, in other words, of the
premature removal of a ``Do Not Remove'' tag on a mattress, or
is it something more than that?
General Barr. I think it is something more. I mean, you
know, we have built a great society here in the United States,
and a vast--I forgot what the statistic is, but a very large
majority of the world lives under our poverty level, and for
them, even, you know, being poor in the United States would be
a step up.
And we have a lot to be grateful and thankful for here. And
if it was unrestricted, a lot of people would come here, more
than we could possibly accommodate.
Senator Lee. And who would that harm, first and foremost,
if we allowed that to happen? Would it be the wealthy who would
most immediately be harmed by that?
General Barr. No, it would not.
Senator Lee. Yes.
General Barr. And so it just seems obvious that you have to
have a system of rationing. You have to have a system that
makes determinations who can come and when, and it is--Congress
is in charge of that. They can make the laws and determine it,
and we, I think, have a very expansive system. There are people
waiting in line for 10, 15--at least there were when I last
looked at it, you know, in the Philippines, for example, for
over a decade waiting patiently, law-abiding people who want to
come here and have family here and other things like that.
And just to allow people to come crashing in, be told that
if you say this you will be treated as an asylum, and then you
do not have to--you do not have to reappear for your hearing or
whatever, it is just an abuse of the system, and it is unfair.
I mean, all of us have been standing in lines, long, long
lines, and someone just walks up to the front. That is unjust.
That is unjust.
I also think that without control, you have unsafe
conditions and uncontrolled conditions on the border, which
create, you know, serious safety problems for everybody on both
sides of the border. So it creates uncontrolled access to the
country as a national security threat. You know, there are
people around the world that are coming into Latin America for
the purpose of coming up through the border. So these are--you
know, these are the reasons why I think it is important that we
enforce--we have an enforceable system of laws, which right
now, the laws are sorely lacking.
Senator Lee. Our desire to enforce our border is not unique
to us. In fact, our neighbors on the southern side of our
border in Mexico themselves have pretty strict laws which they
enforce. And our neighbors in Mexico, including the officials
in the--in the new Lopez Obrador administration, with whom I
visited recently, are themselves quite concerned about these
uncontrolled waves of migration from Guatemala, from Honduras,
from El Salvador.
It occurs to me, and it has occurred to them, that it is
important for us to figure out ways to turn off the magnets
that are bringing these uncontrolled waves in. If you could
wave a magic wand, is there anything--any change you would make
to current asylum law or policy that you think we ought to
consider?
General Barr. I really could not say off the top of my
head. I think--I had some ideas a while back about--you know, I
am talking decades ago--about how we could change it because
this has always been the problem. But I--you know, I would have
to see exactly where the abuses are coming in and how we could
deal with it.
Senator Lee. Mr. Chairman, I have got one more question.
Could I----
Chairman Graham. Sure. Absolutely.
Senator Lee. Thank you, Mr. Chairman. I want to get back
very briefly to civil asset forfeiture. I referred briefly at
the end of our previous exchange to a process whereby some
State law enforcement agencies, seeing that they are prohibited
from doing that which they would like to do under State law,
will go to Federal law enforcement and agree to make the civil
asset forfeiture that they want with Federal such that it is no
longer governed by State law. Sometimes that happens, and the
Department of Justice will enter into an equitable sharing
arrangement with that State where the money is sort of--I do
not like to use the word, ``laundered,'' but it is filtered
through the Federal system deliberately in an effort to
circumvent State law.
Would banning this type of equitable sharing in civil asset
forfeiture be something that you would be willing to do as
Attorney General?
General Barr. Now, I could not say I am willing to do it
now because I do not know enough about it. You know, I come at
this, number one, that asset forfeiture is an important tool;
number two, that it is important, you know, how we work with
our State and local partners; but number three, as you can tell
from my early statement on this matter, I am sensitive to
creating a speed trap problem and also due process issues where
amounts are stolen that, for all intents and purposes, it would
be too costly for some individuals to go and try to, you know,
get back. So I am open to looking at whether there are abuses,
what kind of abuses occur, and try to redress those.
Senator Lee. Okay. Thank you. And it is my view that, at
least, in that circumstance where it is prohibited by State
law, State law enforcement agencies should not be able to make
themselves. They should not be able to seek the blessing of
Government simply by making it Federal, so I hope you will
consider that, and appreciate your remarks on due process. This
really does touch on that, and it is right at the surface of a
whole lot of constitutional rights. Thank you very much, sir.
Thank you, Mr. Chairman.
Chairman Graham. Thank you.
Senator Harris.
I am sorry--Booker. I apologize.
Senator Booker. Gosh. Give a guy a little power as the
Chairman, and he starts to push you around.
[Laughter.]
Chairman Graham. I tell you what----
Senator Booker. I thought we were friends.
Chairman Graham. He is doing better than I am. I am getting
tired.
Senator Booker. I thought we were friends.
Chairman Graham. I apologize. We are friends.
Senator Booker. I am grateful, sir. Let me jump right in.
You wrote an article where you described how the law was being
used, and this was your opinion, and maybe it has changed
because this was over a decade ago, where you said, ``the
breakdown of traditional morality by putting on an equal plane
conduct that was previously considered immoral.'' And you
mentioned the homosexual movement is what you described as
``one of the movements causing an erosion of morality in
America.'' I can only gather from this--the article I am
quoting, unless your opinions have changed, that you believe
that gay, bisexual--being gay or bisexual, lesbian, or
transgender is immoral. Have your views changed on that?
General Barr. No, but I do not think I said--I think you
were paraphrasing there. What did I say about the homosexual--
--
Senator Booker. I will put in the record the----
General Barr. Okay.
Senator Booker [continuing]. The article that you--and,
again, I am quoting your actual language.
[The information appears as a submission for the record.]
General Barr. But I will tell you--I will tell you my
views. If I had been voting on it at the time, I--my view is
that under the law and the Constitution as I originally
conceived it before it was decided by the Supreme Court,
marriage was to be regulated by the States. And if I were--and
if it was brought to me, I would have favored marital unions--
single sex.
Senator Booker. I guess I am more asking do you still
believe that homosexuality is a--is a movement or that----
General Barr. Well----
Senator Booker [continuing]. That somehow that is immoral
behavior.
General Barr. What I was getting at is, I think there has
to be a live and let--in a pluralistic society like ours, there
has to be a live and let live attitude and mutual tolerance,
which has to be a two-way street. And my concern, and the rest
of the article addresses this, is, I am perfectly fine with the
law as it is, for example, with gay marriage--perfectly fine--
but I want accommodation to religion. And what I was concerned
about----
Senator Booker. But, I guess that is not my concern. We
live in a country right now where, especially LGBTQ youth are
disproportionately bullied at school.
General Barr. Yes.
Senator Booker. Many of them.
General Barr. Hate crimes.
Senator Booker. Hate crimes, serious hate crimes. Many of
them are missing school because of fear, disproportionately
homeless. And I guess what I am more concerned about is do you
believe that laws designed to protect LGBTQ individuals from
discrimination contribute to what you had described as a
breakdown in traditional morality.
General Barr. No.
Senator Booker. You do not.
General Barr. No.
Senator Booker. Okay. Since----
General Barr. But I would like to say what--I also believe
there has to be accommodation to religious communities.
Senator Booker. You and I both believe in freedom of
religion. I guess what I am talking about, again, is
discrimination. And I know you believe--I know you believe--you
do not need to say it for me that you believe that firing
somebody simply because they are gay is wrong.
General Barr. Totally wrong.
Senator Booker. I understand that you believe that, but do
you believe the right to not be fired just because of your
sexual orientation should be something that should be protected
under civil rights law?
General Barr. I am sorry. Your right not to be fired?
Senator Booker. Sir, right now----
General Barr. In other words, are you saying that it should
be part of--part of Title VII?
Senator Booker. I am saying that right now in the United
States of America in the majority of our States, someone can be
fired. They can post their wedding pictures on their Facebook
page and be fired the next day just because they are gay.
General Barr. I think that is wrong.
Senator Booker. You think that is wrong.
General Barr. Yes.
Senator Booker. And so you would believe that efforts by
the Department of Justice to protect LGBT kids or individuals
from harassment from hate crimes and efforts to protect the
civil rights of LGBTQ Americans----
General Barr. I support that.
Senator Booker. You support that. Okay.
General Barr. That is what I said in the beginning. I am
very concerned about the increase in hate crime.
Senator Booker. Oh, I was really happy about that. You said
you recognize that violence based on sexual orientation is not
acceptable and that you will work to combat that. I was really
happy to read that in your written testimony and hear it again.
Will you recognize, then, that there is a place for the
Department of Justice, which is supposed to protect the civil
rights of Americans, vulnerable communities, that there is a
place for the Department of Justice to protect the civil rights
of LGBT Americans by banning discrimination based on sexual
orientation or gender identity?
General Barr. If Congress passes such a law, I--you know, I
think the litigation going on now on Title VII is what the 1964
Act actually contemplated. But personally, I think----
Senator Booker. So you--I am sorry. You do believe the 1964
Act contemplated protecting individuals from having--being
discriminated upon----
General Barr. No, no, no, I think it was male/female that
they were talking about when they mentioned sex in the 1964
Act.
Senator Booker. So protecting someone's basic rights to be
free from discrimination because of sexual harassment is not
something that the Department of Justice should be protecting.
General Barr. No. I am saying Congress passes the law. The
Justice Department enforces the law. I think the 1964 Act, on
its face, and this is what is being litigated, what does it
cover? I think, for, like, 3 or 4 decades the LGBT community
was trying to amend the law.
Senator Booker. But the Obama administration--as you know,
the Justice Department under the Obama administration was
working to protect LGBTQ kids from discrimination. Are those
practices that you would be pursuing as well?
General Barr. I do not--I do not know what you are
referring to. You know, I am against discrimination against
anyone because of some status, like, you know, their gender or
their----
Senator Booker. I understand. Really briefly----
General Barr [continuing]. Sexual orientation or whatever.
Senator Booker. Thank you. With the indulgence of the
Chair, just very briefly, the Department of Justice reversed
the Federal Government's position in Veasey v. Perry after
arguing that--for almost 6 years, that the Texas voter ID law
intentionally discriminated against minorities. Even the Fifth
Circuit of Appeal, one of the more conservative Circuits, ruled
that the Texas law discriminated against minority voters. You
said very strongly that voting--the right to vote is paramount.
General Barr. Mm-hmm.
Senator Booker. And I am wondering if confirmed, will you
bring the Department of Justice back on--into the mode of
defending the right to vote because they have now pulled out of
a lot of cases that were--that were affirming people's access
for the right to vote.
General Barr. I will vigorously enforce the Voting Rights
Act.
Senator Booker. Okay. And then I will just say--Mr.
Chairman, I just want to say to you, please, I hope we get a
chance to talk more. I imagine this is our second round, and I
am grateful for you today answering my questions. Thank you,
sir.
Chairman Graham. Now, Senator Harris.
Senator Harris. Thank you. Sir, you were the Attorney
General, obviously under President H.W. Bush, and in the Reagan
White House, a senior policy advisor, so I am going to assume
that you are familiar with the Presidential Records Act. And my
question is, in the context of a Washington Post report that
the President took possession of an interpreter's notes
documenting the President's meeting with the Russian President
Putin in 2017. And the question then is, does that violate the
Presidential Records Act?
General Barr. Your initial assumption, I am afraid, was
wrong. I do not--I am not familiar with that Act.
Senator Harris. You are not familiar at all with it?
General Barr. At some--at some time I was, but I--it is--
you know, I really do not know what it says.
Senator Harris. You do not what it says?
General Barr. No.
Senator Harris. Okay.
General Barr. At some time--at some point I was----
Senator Harris. It requires the President to keep--to keep
documents and not destroy them, essentially.
General Barr. Okay. At one point I knew what it said, but I
am not familiar with it right now.
Senator Harris. Okay. In December, a Texas Judge struck
down the Affordable Care Act. If the decision is upheld, the
results could include an estimated 17 million Americans losing
their health insurance in the first year alone. Protections for
pre-existing conditions would be eliminated, and seniors would
pay more for prescription drugs. And some adults would no
longer be able to stay on their parents' insurance plans until
the age of 26.
Attorney General Sessions refused to defend the Affordable
Care Act in court. As you know, when there is a change of
Attorney General in the Justice Department, there is often a
change of priorities from the previous AG. So in the context of
also understanding that many lawyers, including conservative
legal scholars, have criticized the Texas decision, including
Philip Klein of the Washington Examiner, would you reverse the
Justice Department's position and defend the Affordable Care
Act in court?
General Barr. That is a case that I, if I am confirmed,
would want----
Senator Harris. If confirmed.
General Barr. If I am confirmed, I would like to review the
Department's position on that case.
Senator Harris. Are you open to reconsidering the position?
General Barr. Yes.
Senator Harris. Attorney General Sessions also issued a
memo limiting the use of consent decrees. This came up earlier
in your hearing. And the limitation was on the use of consent
decrees between the Justice Department and local governments. I
am asking then, within your first 90 days, will you commit to--
if confirmed--providing this Committee with a list of all
consent decrees that have been withdrawn since Attorney General
Sessions issued that policy? We would like some transparency
and information about what consent decrees have been withdrawn
during the Sessions' administration of the Justice Department.
Would you commit to doing that?
General Barr. Yes.
Senator Harris. And if confirmed, will you commit to
providing this Committee with a list of any consent decrees
that you withdraw during your tenure?
General Barr. Through the tenure?
Senator Harris. Yes.
General Barr. Yes.
Senator Harris. And if confirmed, within 90 days of your
confirmation, will you commit to convening civil rights groups
to listen to their concerns about this policy in the Department
of Justice?
General Barr. I will--I am very happy to convene that
group.
Senator Harris. I am going to interpret that as a
commitment that you will.
General Barr. I am not--I am not sure about 90 days. Give
me 120.
Senator Harris. Okay.
[Laughter.]
Senator Harris. That is fine. That is the agreement then,
within 120 days. That is terrific. And then the Voting Rights
Act, you are familiar, of course, with that, I am going to
assume, yes?
General Barr. Yes.
Senator Harris. Okay. And under the Act, the record of
discriminatory voting practices, those States that have a
record of such practices, had to obtain Federal approval in
order to change their voting laws, as you know.
General Barr. Yes.
Senator Harris. And then came the 2013 Shelby decision
where the Court, by a 5-to-4 vote, pretty much gutted the Act,
ending the Federal pre-approval requirement. So, within weeks
of that ruling, you are probably aware that legislators in
North Carolina rushed through a laundry list of voting
requirements. A Federal Appeals Court later held those North
Carolina laws to be intentionally discriminatory against
African-American voters, targeting them, quote, ``with almost
surgical precision.'' Do you believe there are currently laws
on the books that target African Americans or have the effect
of discouraging African Americans from voting in our country?
General Barr. Well, it sounds like those laws do.
Senator Harris. Sure. Do you have any concern about that
there may be other laws that have the same----
General Barr. I would be concerned if there are other laws,
and that is why I would vigorously enforce Section 2 of the
Voting Rights Act.
Senator Harris. And would you make it then part of your
mission to also, in spite of the fact that the Voting Rights
Act has been gutted, to make it your mission to also become
aware of any discriminatory laws in any of the States,
including those that were covered by the Voting Rights Act
because of their history of discrimination and use the
resources of the Department of Justice to ensure that there is
not voter suppression happening in our country?
General Barr. Yes.
Senator Harris. Thank you. My time is up. I appreciate it.
Chairman Graham. That was very efficient.
I think that is the end of the two rounds that I promised
the Committee we would do.
I think, Senator Hirono, you have a few more questions. Is
that correct?
Senator Hirono. Yes, thank you very much, and I thank
Senator Kennedy, as he was sitting in the Chair, to give me
permission to go a little bit further, so I will be as brief as
I can.
Last year, the Justice Department in Zarda v. Altitude
Express--it was a Second Circuit case--argued that Title VII--
it filed an amicus brief and argued that Title VII of the Civil
Rights Act of 1964 did not prohibit discrimination on
employment on the basis of sexual orientation. So both the
Second and the Seventh Circuits have rejected the Department's
argument. So if confirmed, would you appeal this decision to
the Supreme Court?
General Barr. I think it is going up to the Supreme Court.
Senator Hirono. So is DOJ going to continue to argue that
Title VII does not protect discrimination, employment
discrimination?
General Barr. You know, it is pending litigation, and I
have not gotten in to review the Department's litigation
position. But the matter will be decided by the Supreme Court.
Senator Hirono. Well, I take it that--that sounds like a
``yes'' to me, that the Department will continue to push the
argument that has been rejected.
General Barr. Well, it is not just the Department's
argument. It has been--it is sort of common understanding for
almost 40 years.
Senator Hirono. So, employment discrimination on the basis
of sex is something that it would be okay by you if that----
General Barr. No, that is not at all what I am saying. I am
saying the question is the interpretation of a statute passed
in 1964. As I have already said, I personally, as a matter of,
you know, my own personal feelings, think that there should be
laws that prohibit discrimination against gay people.
Senator Hirono. So perhaps, should you be confirmed, you
will review the Department's position on making the argument,
continuing to put forth the argument that Title VII does not
prohibit employment discrimination. Would you review----
General Barr. No, because there is a difference between law
and policy. The question in law is what was--I will enforce the
laws as passed by Congress. I am not going to amend them. I am
not going to undercut them. I am not going to try to work my
way around them and evade them.
Senator Hirono. Well, the DOJ also does not have to file an
amicus brief either.
Let me move on. Recently, The New York Times reported that
the Department of Health and Human Services wanted to redefine
gender for Federal anti-discrimination law such as Title IX--so
now we are talking about Title IX--as being determined by the
biological features one has at birth. So do you believe that
transgender people are protected from discrimination by Title
IX?
General Barr. I think that matter is being litigated in the
Supreme Court, too.
Senator Hirono. Do you know what the Justice Department's
position is on whether--well, if they are going to go along
with what the Health and Human Services Department wants, then
the Justice Department's position is that Title IX does not
protect discrimination on the basis of transgender----
General Barr. I do not know what the position----
Senator Hirono. This is probably another one that I would
ask you to review.
General Barr. Okay.
Senator Hirono. Last questions. You have been asked this
already, but after the Shelby County v. Holder decision, there
were some 13 States that passed various kinds of laws that one
could--that the argument could be made that they were intended
to suppress voters. In fact, some of them were intentionally
intended, not just the effect of discriminating against
basically minority voters. So you did say that you would
vigorously enforce the Voting Rights Act, so that is good.
The Washington Post reported last week that officials in
North Carolina reported strong allegations of election fraud
related to absentee ballot tampering to the U.S. DOJ. We are
talking about election fraud, not voter fraud. But the Justice
Department did not appear to take any action, and now that
congressional race is still being decided. But one thing the
Department of Justice did manage to do in North Carolina was to
request that North Carolina turn over millions of voting
records to Immigration and Customs Enforcement, ICE, apparently
as part of a needle-in-the-haystack effort to prosecute voting
by non-citizens.
If confirmed, will you continue to put resources into this
kind of effort to prosecute voting by non-citizens, which the
evidence is very clear that there is not this kind of voter
fraud going on in spite of the fact that the President said
there were some, I do not know, 3 million people who were not
supposed to vote voting? So would you continue to expend
resources on requiring turning over of millions of voter
records to be turned over to ICE?
General Barr. Well, I do not know what the predicate for
looking into that is.
Senator Hirono. It was to get at voter fraud, which,
according to the President, is going on in a massive way, which
it is not.
General Barr. Well, yes, but the predicate, I do not know
what information triggered that review, but, you know, when I
go into the Department, I will be able to discern whether or
not that is a bona fide investigation, and if it is, I am not
going to stop it.
Senator Hirono. What if the trigger was that there is
massive voter fraud going on, which is not the factual--it is
not a factual basis. I would hope that as Attorney General you
would make decisions based on facts, not on some kind of
ideological need to go after people. So that is all I am
asking. I would just ask you to----
General Barr. You are right, I----
Senator Hirono [continuing]. Make that the predicates are
based on some factual basis so that we are not wasting short
resources to go after fraud that is not even--there are plenty
of other things that you could be doing to make sure that
people are able to vote.
General Barr. Right.
Senator Hirono. Thank you.
Chairman Graham. Okay. Can you make it a few more minutes?
General Barr. Sure.
Chairman Graham. Okay. I know comfort breaks are necessary.
So what I would like to do, Senator Kennedy has one question--
right? Senator Blumenthal has a couple. Then we are going to
wrap it up. If you had 10 minutes to live, you would want to
live in this Committee.
[Laughter.]
Chairman Graham. So 10 minutes is a long time. Senator
Kennedy.
Senator Kennedy. General, I am still confused about one
point. Let us assume that Mr. Mueller at some point, hopefully
soon, writes a report and that report will be given to you.
What happens next under the protocol, rules, and regulations at
Justice?
General Barr. Well, under the current rules, that report is
supposed to be confidential and treated as, you know, the
prosecution and declination documents in an ordinary criminal--
any other criminal case. And then the Attorney General, as I
understand the rules, would report to Congress about the
conclusion of the investigation, and I believe there may be
discretion there about what the Attorney General can put in
that report.
Senator Kennedy. So you would make a report to Congress?
General Barr. Yes.
Senator Kennedy. Based on the report you have received?
General Barr. Yes.
Senator Kennedy. Okay. Thank you.
Chairman Graham. All right. A couple questions by Senator
Blumenthal, and we are going to wrap it up.
Senator Blumenthal. Thank you for your patience and your
perseverance, and I appreciate, let me say, your willingness to
come meet with me, and so I am going to cut short some of my
questions. And, also, I hope that you will come back regularly
to the Committee. Obviously, the Chairman is the one who
determines when and whether we have witnesses, but the
frequency----
Chairman Graham. He comes every 30 years----
[Laughter.]
General Barr. Twenty-seven.
Senator Blumenthal. Twenty-seven. You were asked by Senator
Leahy about your statement that the Uranium One deal was more
deserving of investigation than collusion with Russia. You
answered that you were not specifically referring to the--
referencing the Uranium One deal, but just generally referring
to matters the U.S. Attorney might be investigating.
General Barr. I cannot remember the exact context of that.
There was a series of questions a reporter was asking, and then
the article sort of put them in a sequence that, you know, did
not necessarily show my thoughts.
Senator Blumenthal. Well, The New York Times just
published, in a Tweet, the email that you sent them, and you
did reference Uranium One specifically.
General Barr. Okay.
Senator Blumenthal. I will ask that it be made part of the
record.
Chairman Graham. Without objection.
[The information appears as a submission for the record.]
General Barr. So what did I say?
Senator Blumenthal. The Tweet from Peter Baker of The New
York Times says, ``Questions have been raised about what Bill
Barr told us for a story in 2017. Here is his full email from
then, responding to our request for comment. We are grateful he
replied and hope this clarifies any confusion.'' And the email
from you says--and I will take the relevant part of the
sentence--``I have long believed that the predicate for
investigating the uranium deal, as well as the foundation, is
far stronger than any basis for investigating so-called
collusion.''
General Barr. And what came before that?
Senator Blumenthal. I will read the full email, with the
permission of the Chairman.
Chairman Graham. Yes, please.
Senator Blumenthal. ``Peter, got your text. There is
nothing inherently wrong about a President calling for an
investigation. Although an investigation should not be launched
just because a President wants it, the ultimate question is
whether the matter warrants investigation, and I have long
believed that the predicate for investigating the Uranium deal
as well as the foundation is far stronger than any basis for
investigating so-called collusion. Likewise, the basis for
investigating various national security activities carried out
during the election, as Senator Grassley has been attempting to
do. To the extent it is not pursuing these matters, the
Department is abdicating its responsibility.'' Signed, ``Bill
Barr.''
General Barr. Right. So the abdicating responsibility, I
was actually talking about the national security stuff, and
that was my primary concern. You know, the Uranium One deal,
the sort of pay-for-play thing, I think at that point--I may be
wrong on this, but I think it was included in Huber's portfolio
to review, suggesting that there was something to look at
there. But the point I was really trying to get at was that
there was a feeling, I think, a strong feeling among many
people that it appeared, at least, on the outside, that there
were double standards being applied. And I thought it was
important that the same standard for investigation between used
for all matters. But I have no, you know, specific information
about Uranium One that would say that it has not been handled
appropriately.
Senator Blumenthal. Well, that is really my question. What
was the factual basis for your saying that the Uranium One deal
was more deserving of investigation than Russian collusion,
given what you have----
General Barr. I think the----
Senator Blumenthal [continuing]. Very articulately
described as the potential threat to the national security of
the United States from Russian interference in our election?
General Barr. Yes, I think at that time there was a lot of
articles appearing about it. I think maybe Congressman
Goodlatte had written a letter about it. So there was smoke
around the issue, as there has been smoke around a number of
issues that have been investigated. But I was using it really
as an example of the kinds of things that were floating around
that some people felt has to be looked at as well.
Senator Blumenthal. So the factual basis was whatever that
smoke was----
General Barr. Well, the public information that a lot of
opinions are being formed.
Senator Blumenthal. And how about as to the foundation?
What was the basis of your claim that the foundation was more
deserving of investigation than Russian collusion?
General Barr. Well, the foundation--I did not necessarily
think the foundation was--should be criminally investigated,
but I thought----
Senator Blumenthal. Well, you did say that in the email.
General Barr. I did? Criminally?
Senator Blumenthal. Well, let me read that part of the
sentence again: ``I have long believed that the predicate for
investigating the Uranium deal as well as the foundation is far
stronger than any basis for investigating so-called
collusion.'' You were referring to the criminal investigation,
as I read it.
General Barr. Yes. Well, the foundation I always wondered
about--it was the kind of thing that I think should have been
looked at from a tax standpoint and whether it was complying
with the foundation rules the way a corporate foundation is.
And I thought there were some things there that, you know,
merited some attention. But I was not thinking of it in terms
of a criminal investigation of the foundation.
I would like to--you know, Attorney General Mukasey said
something that I agree with. He said, ``It would be like a
banana republic putting political opponents in jail for
offenses committed in a political setting. Even if they are
criminal offenses, it is something we just do not do here.''
And one of my concerns, frankly, is, you know, politics
degenerating into, you know, this kind of thing about should we
investigate this, investigate that, about political opponents,
and that concerns me. So, that is why I said I think in, if not
that, some other article, I do not subscribe to this ``Lock her
up'' stuff.
Senator Blumenthal. But a political or public official,
even the President of the United States, has to be held
accountable. No one is above the law.
General Barr. Oh, yes, absolutely.
Senator Blumenthal. And just one more question. You
referred earlier in response to a question from Senator
Feinstein about the emoluments issue, and I ask this question
in the interest of full disclosure. I will tell you that I am
the lead plaintiff in a litigation called Blumenthal, Nadler v.
Trump that raises the issue of emoluments and the payments and
benefits that have been going to the President of the United
States without the consent of Congress in violation of the
chief anti-corruption clause in United States law, the
Emoluments Clause of the United States Constitution. So we
claim.
You said that your understanding of emoluments was that it
was--that it pertained only to stipends.
General Barr. No--well, first----
Senator Blumenthal. Maybe----
General Barr. I have not looked at that clause, you know, I
have not researched it, and I have not even looked up the word,
``emolument.'' But all I said is just colloquially, off the top
of my head, that is what I always thought the word meant.
Senator Blumenthal. So you are not necessarily disputing
the conclusion of at least one District Court, perhaps others,
that emoluments relates to payments and benefits much broader
than just a stipend. You were speaking only of your colloquial
understanding.
General Barr. Yes. I mean, my colloquial understanding is
that emoluments does not refer to exchange of services and
stuff like that.
Senator Blumenthal. Which is not----
General Barr. Commercial transactions.
Senator Blumenthal. Which is not necessarily the
understanding of the Founders and Framers of the Constitution.
General Barr. We will see.
[Laughter.]
Chairman Graham. Well, that is a good way to end. We will
see. Thank you, Senator Blumenthal.
Senator Blumenthal. Thank you.
Chairman Graham. Thank you, Mr. Barr, to your family. Thank
you. You should be proud. This was a very thorough examination
of a very important position in our Government. If confirmed,
you will be the chief protector of the rule of law, and I
really appreciate your time, attention, and your patience.
Any further questions can be submitted for the record by
January the 21st. This hearing is adjourned, to be reconvened
tomorrow at 9:30. Thank you.
[Whereupon, at 6:12 p.m., the Committee was recessed, to
reconvene at 9:30 a.m., Wednesday, January 16, 2019.]
[Additional material submitted for the record for Day 1
follows Day 2 of the hearing.]
CONTINUATION OF THE CONFIRMATION
HEARING ON THE NOMINATION OF
HON. WILLIAM PELHAM BARR TO BE
ATTORNEY GENERAL OF THE UNITED STATES
----------
WEDNESDAY, JANUARY 16, 2019
United States Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 9:32 a.m., in
Room SH-216, Hart Senate Office Building, Hon. Lindsey O.
Graham, Chairman of the Committee, presiding.
Present: Senators Graham [presiding], Grassley, Cornyn,
Cruz, Sasse, Hawley, Tillis, Ernst, Kennedy, Blackburn,
Feinstein, Durbin, Whitehouse, Klobuchar, Coons, Blumenthal,
Hirono, Booker, and Harris.
OPENING STATEMENT OF HON. LINDSEY O. GRAHAM,
A U.S. SENATOR FROM THE STATE OF SOUTH CAROLINA
Chairman Graham. Good morning, everyone. To our witnesses,
thank you very much for sharing your testimony with the
Committee.
We have nine very distinguished people. If you could keep
it to 5 minutes, we appreciate it. We have your written
testimony, and we will certainly look at all of it.
Senator Feinstein, thank you. Yesterday, I thought it was a
very good hearing, asked a lot of good, tough questions that
were appropriate. Nominating an Attorney General is no small
matter, and I thought the Committee acquitted itself well. And
Mr. Barr, I think, is a unique individual, and I am glad the
President nominated him.
Today, the purpose is to hear from people that have
concerns and support, and we are honored that you showed up. If
you do not mind, I will mention who is here, then turn it over
to you. Is that okay?
Senator Feinstein. That is okay.
Chairman Graham. Thank you.
Our first witness will be the Honorable Michael Mukasey,
former United States Attorney, former U.S. District Judge, and
former everything. Yes.
Mr. Derrick Johnson, president and chief executive officer
of the National Association for the Advancement of Colored
People from Baltimore. Welcome.
The Honorable Larry Thompson, former United States Deputy
Attorney General. Welcome, Larry. Good to see you.
The Honorable Marc Morial. Is that right, sir? Morial.
Sorry. President and chief executive officer of the National
Urban League.
Mrs. Mary Kate Cary, former speechwriter for President
George H.W. Bush and a senior fellow at the Miller Center,
University of Virginia.
Professor Neil Kinkopf, professor of law, Georgia State
University College of Law, Atlanta, Georgia.
Professor Jonathan Turley, TV star, smart guy. That is
enough.
Reverend Sharon Washington Risher from Charleston, South
Carolina, Mother Emanuel. God bless you. Thank you for coming.
Mr. Chuck Canterbury, the national president, Fraternal
Order of the Police.
And I will now turn it over to Senator Feinstein.
OPENING STATEMENT OF HON. DIANNE FEINSTEIN,
A U.S. SENATOR FROM THE STATE OF CALIFORNIA
Senator Feinstein. Thanks very much, Mr. Chairman, and I
very much enjoyed your leadership yesterday and look forward to
it in the future.
Chairman Graham. Thank you. Thank you.
Senator Feinstein. So thank you.
I would just like to take a moment to thank our panelists
today and just a few comments, if I may, on the discussion that
we had yesterday.
Yesterday, many of us from, I think, both sides of the
aisle asked Mr. Barr about his legal memo, and that was
allowing the Special Counsel to complete his work unimpeded and
making the report at the end of the investigation public. His
answers were good. He clearly understands the need for
independence and the importance of protecting the Department,
as well as Mr. Mueller, from political interference.
I was concerned by his equivocation regarding the report at
the end of the Special Counsel's investigation. Mr. Barr was
clear that he would notify Congress if he disagrees with Mr.
Mueller, which I am grateful for. But his answers on providing
a report to Congress at the end of the Special Counsel's
investigation were confusing.
When I first asked him about the report, he said he would
make it available. However, it seemed to me that as the day
progressed, he referenced writing his own report and treating
the Mueller report as confidential. I am going to follow up
with him in writing on this. I think it is essential that
Congress and the American people know what is in the Mueller
report.
I first met Bob Mueller when he was U.S. Attorney and I was
mayor in San Francisco, and I know his reputation, I know his
integrity. And this is a big report, and the public needs to
see it. And with exception of very real national security
concerns, I do not even believe there should be very much
redaction.
So I am hopeful that that report will be made public, and
my vote depends on that, Mr. Chairman, because an Attorney
General must understand the importance of this to the Nation as
a whole, to us as a Congress, as well as to every American.
I also plan to follow up on questions that Senator
Blumenthal asked about Roe and whether he would defend Roe if
it were challenged. This has always been a critically important
issue for me and, I believe, the majority of American women,
and I very much regret that I did not get to ask follow-up
questions.
Mr. Barr's nomination comes at a time when we are very
divided on many issues, ranging from immigration and civil
rights enforcement to the very independence of the Justice
Department, and the witnesses today are going to speak to those
key issues. For example, Professor Kinkopf from Georgia
University served in the Justice Department's Office of Legal
Counsel, and he can speak today about issues he is focused on,
primarily presidential authority, as I understand it, and
separation of powers.
Sharon Risher is an ordained pastor who lost her mother and
cousins to gun violence in the horrific hate crime that took
place at Emanuel AME Church in Charleston, South Carolina, and
can speak to the importance of enforcing common sense gun laws.
We will also hear from two prominent leaders of the civil
rights community who could speak to the impact of the Justice
Department's policies under President Trump. Mr. Marc Morial--
Where are you, Marc?--whose sister has been a colleague of
ours, and it is great to see you, the president and chief
executive officer of the National Urban League now. And Mr.
Derrick Johnson, the president of the NAACP.
So, on behalf of this side, I welcome everyone here.
Thank you, Mr. Chairman.
Chairman Graham. Thank you, Senator Feinstein.
If it is okay, lead us off. Oh, sorry. Got to swear you in
first.
Would you please stand? All of you. Raise your right hand.
Do you solemnly affirm that the testimony you are about to
give this Committee is the truth, the whole truth, and nothing
but the truth, so help you God?
[Witnesses are sworn in.]
Chairman Graham. All right, General Mukasey.
HON. MICHAEL B. MUKASEY, FORMER UNITED STATES ATTORNEY GENERAL;
FORMER U.S. DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF NEW
YORK; AND OF COUNSEL, DEBEVOISE & PLIMPTON LLP, NEW YORK, NEW
YORK
Judge Mukasey. Thank you.
Good morning. Mr. Chairman, Ranking Member Feinstein,
Members of the Committee, it is a tremendous honor as well as a
great pleasure to be here to testify on behalf of Bill Barr to
serve as Attorney General.
I do not know of any nominee who has had his background and
his credentials for this job. Obviously, the job is about a lot
more than credentials, but he has done literally everything
that you could possibly do, including serving as Attorney
General, to prepare him.
Now, obviously, the Department of Justice is a different
place today from the time that he served. It is different from
the time that I served. But he is obviously well equipped to
deal with whatever problems he faces.
He was with the CIA. He headed the Office of Legal Counsel,
which is, I think, the office that attracts, along with the
Solicitor General's Office, the best legal minds in the
Department. He headed that office. He was Deputy Attorney
General. So he knows how the Department runs. And, of course,
he was Attorney General. It is impossible to improve on that.
Not only what he did, but the way he did it.
When he was Acting Attorney General, he supervised the
liberation of hostages at a Federal prison in a way that
prevented any casualties, and then follow that up by not taking
any public credit for it. That is the kind of person he is, and
that is the kind of judgment he has.
And as far as pressure from the White House, he was asked
at one point whether he could come up with a theory to justify
the line-item veto. And he did a lot of research and found
that, well, there was no precedent in our law. There was
something that might be called common law, going back to about
the 15th century.
He said there was a Scottish king who had done something
that looked like a line-item veto. But, of course, that
Scottish king, as it turned out, was suffering from syphilis
and was quite out of his mind. And so you would have to call
that the syphilitic prerogative if you did it, Mr. President.
And so the President decided not to assert the power.
That is the kind of judgment he has. That is the kind of--
--
Chairman Graham. You learn a lot on this Committee.
Judge Mukasey. Yes, it was a revelation to me, too. It is a
terrific story. But it illustrates what he is like. He does
not--he is not intimidated by questions or by the source of
them.
When I--a couple of months ago, when General Sessions was
leaving, I thought to write an article pointing out all the
good things that he had done. And I called up Bill Barr to ask
whether he would join in that article. He did not hesitate for
a nanosecond. He said he would.
He said it was the right thing to do, it was the correct
thing to do, and he was glad he had done it. And that, I think,
tells you in substance what it is this person is about. He is
an honorable, decent, smart man, and I think he will make a
superb Attorney General.
Thank you very much.
[The prepared statement of Judge Mukasey appears as a
submission for the record.]
Chairman Graham. Mr. Johnson.
DERRICK JOHNSON, PRESIDENT AND CHIEF EXECUTIVE OFFICER,
NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE,
BALTIMORE, MARYLAND
Mr. Johnson. Good morning, Chairman Graham and--is that
better? Great.
Thank you for allowing me to testify on the nomination of
William Barr to be Attorney General of the United States.
My name is Derrick Johnson, and since October 2017, I have
had the honor of serving as the president/CEO of the NAACP.
Founded in 1909, the NAACP is our Nation's oldest, largest, and
most widely recognized civil rights organization. The NAACP
opposes Mr. Barr's nomination, and I urge every Member of this
Committee to vote against his confirmation.
The Senate considers this nomination in extraordinary
times. Under the Trump administration, we have experienced the
worst erosion in civil rights in modern history. We have seen
reversals and rollbacks of longstanding policies and positions
that have enjoyed bipartisan support from their creation. We
have seen an undermining of both substantive protections and
the tools necessary for civil rights enforcement, such as the
disparate impact method for proving discrimination and the use
of consent decrees to address abuse by police agencies.
The next Attorney General of our United States has the
opportunity to reverse course and place the Justice Department
back on the track to fulfill its historic role of safeguarding
our civil and constitutional rights. The Senate must seize this
second chance for justice and insist upon an Attorney General
capable of independence and willing to enforce our Nation's
civil rights laws with vigor and resolve.
After a thorough evaluation and review of the record,
William Barr is not that candidate. Mr. Barr's record
demonstrates a lack of strong commitment to protecting the
civil and human rights of all Americans. The community served
and represented by the NAACP will have a difficult time placing
our trust in the Justice Department and, by extension, the
American criminal justice system overall, even with the
improvements just signed into law with the First Step Act.
The Justice Department's enforcement of our voting rights
laws is of paramount importance. But the current Department has
jettisoned protections for the right to vote. It has reversed
positions in lawsuits to support voter suppression measures and
to purge voters from the rolls.
Because Shelby County v. Holder eliminated said guards
under Section 5 of the Voting Rights Act, litigation under
Section 2 of the Act is all more important. But the Justice
Department has filed no Section 2 claims since this
administration has been in place.
As the Nation experienced rampant voter suppression
throughout the 2018 mid-term elections, the Justice Department
stood silently as communities of color across the Nation were
denied access to the polls. At a time when the Justice
Department has abandoned voting rights protections, the need
for Federal enforcement has never been greater.
The U.S. Commission on Civil Rights recently reported that
voter suppression is at an all-time high and unanimously called
on the Department to pursue more voting rights enforcement in
order to address aggressive efforts by State and local
officials to suppress the vote.
Mr. Barr's record on criminal justice is abysmal. As
Attorney General, he championed mass incarceration and deprived
countless persons of color of their liberty and dramatically
limited their future potential. His Justice Department tenure
was marred by extraordinarily aggressive policies that harmed
people of color.
He was a general in the war on the crime on drugs that was
rooted in racism. He literally wrote a book on, ``The Case for
More Incarceration,'' which stands in contradiction of the
First Chance Act.
But William Barr did not and does not recognize racially
discriminatory impact of our criminal justice system policies.
In 1992, he said, ``I think our system is fair and does not
treat people differently.'' And just yesterday, he told Senator
Booker, ``Overall,'' and I quote, ``the system treats Blacks
and Whites fairly.''
This statement is singularly disqualifying. We need an
Attorney General who understands both the history and
persistence of racism in our criminal justice system.
The Government response to inhumanity is inconsistent as it
relates to this administration's enforcement of immigration
rights. The NAACP, we filed a lawsuit as it relates to DACA. We
need an Attorney General who respects the rights of
individuals.
Finally--and I am trying to rush through this quickly now--
Mr. Barr's recent actions make his impartiality on the ongoing
investigation into Russian interference in the 2016 elections
suspect. And for the NAACP, we are very clear. Matters of
international questions is not under our purview.
But any time a foreign nation used the worst common
denomination in this Nation's history of racism to suppress
African-American votes in an effort to subvert democracy, it is
a question of national security, and we need an individual who
has the independence to stand up and be fair and make sure we
protect democracy.
Thank you, Members of the Committee.
[The prepared statement of Mr. Johnson appears as a
submission for the record.]
Chairman Graham. Thank you, Mr. Johnson.
Mr. Thompson.
HON. LARRY D. THOMPSON, FORMER UNITED STATES DEPUTY ATTORNEY
GENERAL, AND PARTNER, FINCH McCRANIE LLP, ATLANTA, GEORGIA
Mr. Thompson. Good morning, Chairman Graham, Ranking Member
Feinstein, Members of the Committee.
It is my great honor to appear before you this morning in
support of Bill Barr's nomination to serve our country once
again as Attorney General of the United States.
I have known Bill since 1992. I can attest to the fact that
Bill has a deep, deep respect for and fidelity to the
Department of Justice. Bill will go where the law leads him. In
fact, as Attorney General, he did not hesitate when required by
law to appoint or seek to appoint various Special or
Independent Counsel in high-profile matters.
He served with great distinction as Attorney General and is
highly respected and admired on a bipartisan basis by the
career prosecutors and investigators he oversaw in the
Department. Importantly, Bill knows how to develop much-needed
partnerships with State and local law enforcement. He was very
successful at this during his tenure as Attorney General and
created strong and effective joint task forces across the
country to combat white-collar and violent crime.
Bill believes that every citizen, no matter where he or she
lives, deserves the full protection of the law. Bill also
understands that Federal law enforcement cannot do the job
alone. In 1992, Bill visited my hometown of Atlanta, Georgia,
and spoke with members of the Southern Christian Leadership
Conference.
He said that when cleaning up crime-infested neighborhoods,
and I quote, ``It cannot be a Washington bureaucratic project.
It must be a project where the solutions are found in the
community itself.''
He acknowledged to the Reverend Joseph Lowery that in the
past decade, the Federal Government's anti-crime efforts have
relied too heavily on prison construction and not enough on
crime prevention.
Now, as a former general counsel of a large public company
myself, I also appreciate and admire Bill's approach to his
work in the private sector. Bill was very supportive of the
lawyers who worked with him. He was collaborative with his
colleagues. He welcomed input, dialogue, and discussion.
He created opportunities for everyone he oversaw to develop
and grow in their careers, including many female lawyers and
lawyers of color. He was also supportive of diversity in the
legal profession.
In 2002, the company Bill served as general counsel
received the Northeast Region Employer of Choice Award from the
Minority Corporate Counsel Association for successfully
creating a more inclusive work environment.
Finally, Members of the Committee, I think the most
important point I can share with you is that Bill Barr is a
person of very high integrity. He led the Department of Justice
as Attorney General with an unbending respect for the rule of
law. As general counsel of a large public company, he
emphasized the importance of complying with all laws, rules,
and regulations, and he stood up for his corporate client a
world-class compliance program.
Bill Barr's integrity is rock solid. He will not--and I
repeat--will not simply go along to get along. Last January, he
resigned from his position as the director of an important
public company board. Bill let his conscience and his integrity
guide his decision.
As a citizen, I thank Bill for his willingness to return to
public service. He is needed, and I look forward to his tenure
again in service to our great country as Attorney General.
Thank you.
[The prepared statement of Mr. Thompson appears as a
submission for the record.]
Chairman Graham. Thank you, Mr. Thompson.
Mr. Morial.
HON. MARC H. MORIAL, PRESIDENT AND CHIEF EXECUTIVE OFFICER,
NATIONAL URBAN LEAGUE, NEW YORK, NEW YORK
Mr. Morial. Thank you.
Chairman Graham, Senator Feinstein, and Members of this
Committee, I want to thank you for the opportunity to testify
on the nomination of William Barr to be Attorney General of the
United States.
I am Marc Morial and have the pleasure of serving as
president and CEO of the National Urban League. Before doing
so, I served 8 years as the mayor of my beloved hometown, New
Orleans, president of the national--the United States
Conference of Mayors, a Louisiana State senator, a college
professor, and a practicing lawyer involved in one of the most
important civil rights and voting rights cases to come before
the Supreme Court in the 1990s.
The National Urban League was founded in 1910. It is an
historic civil rights and urban advocacy organization with a
network of 90 community-based affiliates, and we have
affiliates in every town represented by the Members of this
Committee. We have worked hard and fought for civil rights,
justice, and equal opportunity, along with fairness, for our
entire existence.
My illustrious predecessor, the late Whitney Young, was one
of the ``Big Six'' of civil rights leaders who worked for the
1964 Civil Rights Act, the 1965 Voting Rights Act, and the 1968
Fair Housing Act. One of our prime missions is to ensure that
each of these laws is aggressively, faithfully, and
consistently executed and enforced by every President, every
Congress, and every Attorney General. That is why I am here
today.
Mr. Chairman, on behalf of our entire Urban League movement
across this country, I urge this Committee and the entire
Senate, based on a careful examination of this nominee's
record, to soundly reject the nomination of William Barr as the
next Attorney General of the United States. Let me tell you
why.
For the past 2 years, the Justice Department has been led
by an Attorney General intent on restricting civil and human
rights at every turn. This Nation needs an Attorney General who
will dramatically change course and enforce civil rights laws
with vigor and independence. Based on his alarming record, we
are convinced that William Barr will not do so.
Indeed, in a recent op-ed, Mr. Barr called Jeff Sessions,
the architect of these restrictive civil and human rights
policies, an outstanding Attorney General and offered praise
for his anti-civil rights policies. It is clear, based on the
record, that Mr. Barr intends to follow Mr. Sessions down the
same regressive, anti-civil rights road map.
The confirmation of William Barr, who espouses former
Attorney General Sessions' policies, would enormously
exacerbate our Nation's current civil rights crisis. When we
submitted comments to the United States Commission on Civil
Rights raising concerns relative to Sessions' actions on
various civil rights issues, they were as follows: overturning
a memo from former Attorney General Eric Holder aimed at
reducing mass incarceration by avoiding mandatory sentencing,
disproportionately subjecting African Americans and other
minorities to long-term incarceration; abandoning the Justice
Department's Smart on Crime Initiative; ending the Community
Oriented Policing Services' Collaborative Reform Project, a
Justice Department program that helped build trust between
police officers and the communities that it served; announcing
a Justice Department school safety plan that militarizes
schools; offering a sweeping review of consent decrees with law
enforcement agencies related to police conduct, nothing but a
subterfuge to undermine a crucial tool in the Justice
Department's efforts to ensure constitutional and accountable
policing.
Mr. Barr has a troubling record that tells us that there
will be no redress of Sessions' blunders. Last year, after
arduous work done by many Members of this Committee, we passed
the First Step and the Juvenile Justice Reform Act of 2018, and
I want to thank the Committee for its support of that. Mr.
Barr's record on criminal justice places these achievements at
serious risk and gives us no confidence that these hard-won
reforms are going to be carefully executed.
Why? As Attorney General, Barr pushed through harsh
criminal justice policies--or rather, he pursued them that
escalated mass incarceration in the war on drugs. His 1992
book, ``The Case for More Incarceration,'' argued that the
country was incarcerating too few individuals.
Barr led an effort in Virginia to abolish parole, build
more prisons, and increase prison sentences by as much as 700
percent. Yesterday, Mr. Barr testified to this Committee of his
intent to implement the First Step Act. If that is the case,
this Committee should ask him for a commitment to rescind the
guidance that Mr. Sessions issued on May 10, 2017, instructing
all United States Attorneys to seek the maximum penalty in
Federal criminal prosecutions.
The Attorney General has a duty to vigorously enforce our
Nation's most critical law--to protect the rights and liberties
of all Americans, to serve as an essential independent check on
the excesses of an administration. And we feel the evidence is
clear that Mr. Barr is ill-suited to serve as chief enforcer of
our civil rights laws, and therefore, we urge this Committee,
as a part of its deliberations, its duty, and its
responsibility, to reject Mr. Barr's nomination as our next
Attorney General.
And I want to thank you for your time.
[The prepared statement of Mr. Morial appears as a
submission for the record.]
Chairman Graham. Thank you, sir.
Ms. Cary.
MARY KATE CARY, FORMER SPEECHWRITER FOR PRESIDENT GEORGE H.W.
BUSH, AND ANNE C. STRICKLER PRACTITIONER SENIOR FELLOW, THE
MILLER CENTER, UNIVERSITY OF VIRGINIA, WASHINGTON, DC
Ms. Cary. Chairman Graham, Senator Feinstein, and Members
of the Committee, thank you for the invitation to testify
today, and I am here to give my enthusiastic support for the
nomination of William P. Barr as our next Attorney General.
My name is Mary Kate Cary, and I was a White House
speechwriter for President George H.W. Bush from 1989 to 1992.
In January of 1992, I moved to the Justice Department from the
White House for the final year of the Bush 41 administration to
serve as Deputy Director of Policy and Communications,
overseeing the speechwriters in the policy shop and serving as
one of two spokesmen for the then-new Attorney General Bill
Barr.
When I first started working for General Barr, I was 28
years old. I got to know him very well, as speechwriters do,
and quickly learned the way he thinks. I found that Bill Barr
has a brilliant legal mind. He knows Mandarin Chinese, and he
plays the bagpipes. He has got a great sense of humor and an
easy laugh. He is a kind and decent man, a dedicated public
servant, and one of the best bosses I have ever had. He is
always a gentleman.
Bill and I flew thousands of miles that year in a four-
seater prop plane to towns and cities all over America, where
he met with local law enforcement leaders, small town mayors,
city council members, victims' rights advocates, criminal
justice reform leaders, residents of public housing, prison
wardens, Federal prosecutors, religious leaders, really all
kinds of people from every walk of life.
We were often traveling in support of Bill's visionary
initiative, Operation Weed and Seed, which sought to remove
violent criminals and drug gangs from underserved neighborhoods
and then allow grassroots organizations and programs to
flourish, bringing hope of a better life to residents through
education, opportunity, and stronger civil rights.
As we met with people in communities all over America, I
saw that Bill was a good listener. He was masterful at drawing
out people's concerns, and he had a knack for finding the best
solutions on the ground, figuring out what worked in a
neighborhood, and then putting the right policies in place. He
made sure politics never entered into it.
Bill Barr treated everyone with the same respect, whether
they were an up-and-coming chief of police, a receptionist at
the Department of Justice, or an 80-year-old resident of public
housing. I believe this is why Bill Barr continues to be held
in high esteem by the career staff and the civil servants at
the Department of Justice and why he was such a successful
Attorney General.
I also believe that in addition to being good policy, Bill
Barr's leadership style is why Operation Weed and Seed
continued on for many years after he left office.
Everywhere we went that year, we were accompanied by rank-
and-file FBI agents, and he was admired by every one of them
that I met. More than once, I can remember being in very
dangerous situations where the agents were concerned for his
physical security. Every time, he was more concerned about my
security. The fact that the Attorney General of the United
States was more concerned about the safety of a 28-year-old
staffer than his own safety tells you volumes about him.
Despite his top-notch education and his stunning intellect,
Bill Barr is not an ivory tower kind of guy. He went out of his
way to build friendships at the Department and across the
United States, checking in when someone was sick, helping
people get jobs, just staying in touch. He and his wife,
Christine, came to my wedding, and we have stayed friends for
the 27 years since we have worked together.
Like President Bush 41 did, Bill Barr has a devoted and
wide collection of friends, each of whom think of him as a
really good friend. I remember when he was Attorney General at
the age of 42 and his three daughters were young girls. Despite
the long hours he kept, the tremendous amount of travel, and
the time spent away from his family, his daughters admired his
devotion to the law so much that each of them later went to law
school in order to follow in his footsteps.
As a mother myself, that, too, tells me volumes about the
way he has lived his life and the example he has given to young
people, especially women. It is no surprise to me that he is
one of the few people in American history to be asked to be
Attorney General of the United States twice. It is an honor for
me to highly recommend William P. Barr to you for confirmation.
Thank you.
[The prepared statement of Ms. Cary appears as a submission
for the record.]
Senator Cornyn [presiding]. Thank you.
Professor Kinkopf.
NEIL J. KINKOPF, PROFESSOR OF LAW, GEORGIA STATE UNIVERSITY
COLLEGE OF LAW, ATLANTA, GEORGIA
Professor Kinkopf. My thanks to the Committee for the honor
and privilege to appear here today and testify on the
nomination of William Barr to be Attorney General.
In his testimony yesterday, William Barr minimized his 2018
memorandum on obstruction of justice. He characterized it as a
narrow analysis of a particular interpretation of a specific
statute. That is true in a sense, but to answer that very
narrow question, he elaborated a comprehensive and fully
theorized vision of the President's constitutional power.
He declared without limit or qualification, and I quote,
``Constitutionally, it is wrong to conceive of the President as
simply the highest officer in the executive branch. He alone is
the executive branch. As such, he is the sole repository of all
Executive powers conferred by the Constitution. Thus, the full
measure of law enforcement authority is placed in the
President's hands, and no limit is placed on the kinds of cases
subject to his control.'' That manifesto of an imperial
Executive has alarming implications for the Mueller
investigation and for the whole of the executive branch.
First, I wish to highlight two implications for the Mueller
investigation. William Barr gave reassurances yesterday
regarding what he would or would not do. These assurances are
beside the point because, on Barr's theory, the power rests
with the President. Therefore, the President does not have to
ask Barr to do anything. In his view, the Attorney General and
the Special Counsel are merely the President's ``hand.'' Again,
a quote.
The President needs only ask the Attorney General, ``Can I
terminate the Special Counsel's investigation,'' and Barr's
answer to that question will be, ``Yes.'' This is not
speculation or inference drawn from the Barr memo. The Barr
memo takes this on very directly. Again quoting the memo: ``Say
an incumbent U.S. Attorney launches an investigation of an
incoming President. The new President knows it is bogus, is
being conducted by political opponents, and is damaging his
ability to establish his new administration and to address
urgent matters on behalf of the Nation. It would be neither
corrupt nor a crime for the new President to terminate the
matter.'' Well, President Trump has told us that that is
exactly how he regards the Mueller investigation.
Next, there was a great deal of discussion around the
release of Mueller's report. First, it is clear that Barr takes
the DOJ regulations to mean that he should release not the
Mueller report, but rather his own report. Second, he reads DOJ
regulations and policy and practice to forbid any discussion of
decisions declining to indict, declination decisions. In
combination with the DOJ view that a sitting President may not
be indicted, this suggests that Barr will take the position
that any discussion or release of the Mueller report relating
to the President would be improper and prohibited by DOJ policy
and regulations.
I wish to close by noting one consequence of the Barr
memo's theory of Executive power that extends outside the
Mueller probe. The memo asserts that the President has, and I
am quoting again, ``illimitable discretion to remove principal
officers carrying out his executive functions.'' This would
mean, for example, that the President may order the chairman of
the Federal Reserve not to raise interest rates and to fire the
chairman of the Federal Reserve if the chairman refuses to
follow that order.
The independence of the Federal Reserve, the SEC, the FEC,
the FTC, the FCC, the dozens of administrative--of independent
administrative agencies are unconstitutional under Barr's
theory of Executive power. This is in spite of the fact that
for over 80 years, the Supreme Court has consistently upheld
the constitutional validity of the independence of those
entities.
Mr. Barr's theory of presidential power is fundamentally
inconsistent with our Constitution and deeply dangerous for our
Nation.
[The prepared statement of Prof. Kinkopf appears as a
submission for the record.]
Senator Cornyn. Professor Turley.
JONATHAN TURLEY, J.B. AND MAURICE C. SHAPIRO PROFESSOR OF
PUBLIC INTEREST LAW, THE GEORGE WASHINGTON UNIVERSITY LAW
SCHOOL, WASHINGTON, DC
Professor Turley. Thank you, Senator Cornyn. Also allow me
to thank Chairman Graham, Ranking Member Feinstein, and all the
Members of the Committee for the honor of speaking to you
today.
I have known General Barr for many years in my capacity as
both an academic and a litigator. I actually represented him
with other former Attorneys General during the litigation
leading up to the Clinton impeachment. I can think of no better
person to serve at that--in this position and lead the Justice
Department at this critical time.
I come to this as someone that holds different views of the
Constitution from General Barr. I am unabashedly a Madisonian
scholar, and I admit--I have always admitted in testimony that
I favor the legislative branch in fights with the executive
branch. I also have been a critic of the expansion of Executive
power. My default is in Article I. General Barr's default is
Article II. He tends to take a robust view of Executive
authority. Despite our different defaults, however, I have
always admired him. I have always found him to be one of the
most knowledgeable and circumspect leaders in the United States
when it comes to constitutional history and theory.
Now, I have already submitted written testimony addressing
the 1989 and 2018 memos. I respectfully disagree with my
friend, Neil, even though I found many of the things he said
very compelling. We disagree on both what General Barr has said
and also the implications of his views. But ultimately this
Committee has a difficult task regardless of the resume of a
nominee. You have to try to determine what is the person's core
identity and values.
For me, that question has always come down to a rather
curious and little known fact about the Seal of the Attorney
General that sits underneath the Attorney General whenever he
speaks. It has the familiar image of a rising eagle with the
olive branch and the 13 arrows and talons, but under it is
actually a Latin legend that we continue to fight about how
that legend was put on the seal. What we know is that it
appears to be derived from how the Attorney General was
introduced to the Queen.
The British Attorney General was introduced as one ``who
prosecutes for our Lady the Queen.'' That phrase was clearly
adopted by someone--there is a huge debate about who or when or
even why--but they made one change. It would not do to use that
language. So they changed the last words to ``Domina
Justitia,'' ``our Lady Justice.'' It would not do for the
Attorney General to litigate or appear on behalf of any leader.
The Attorney General appears on behalf of the Constitution, not
the President.
I know that Bill Barr understands that distinction. He has
said so yesterday. He has maintained that position through his
whole career. He has a record of specific leadership, not just
at the Department of Justice, but in this very position. He is
only the second person ever to be nominated to fit--fill that
position twice. There are few nominees in history, as General
Mukasey said, who has the resume that Bill Barr has.
I will not go into depth about the discussion of the memo
that Neil was talking about other than to say this. I do go
into it in my written testimony. As Deputy Attorney General Rod
Rosenstein said, it is not uncommon for former Justice
officials to share their views about issues that they believe
concern the Department. Indeed, General Barr wrote to other
Justice officials about the prosecution of Senator Menendez. He
had no connection with Senator Menendez, no interest in that
case. His interest was the theory of prosecution being used
against Senator Menendez, that he was concerned swept too
broadly under the Criminal Code.
The 2018 memo is vintage Bill Barr. It is detailed. It is
dispassionate. It is the work of a law nerd, and that is what
he is. He is a law nerd. I should know because I am a law nerd,
and I teach with other 80 other law nerds. When people are
suspicious why would anyone write a memo this long
spontaneously and send it to anyone, that is because you do not
know law nerds, okay? We write these memos so that we do not
follow strangers on the street trying to talk about the unitary
executive theory. Indeed I think the best thing we could do for
Christine and the family is to reincarcerate Bill on the fifth
floor of Main Justice where he can talk about this all day
long.
Now, the dispute about that obstruction provision is a real
one. I am a little taken aback from the criticism. From a civil
liberty's standpoint, I have been critical of the expansion of
the--of the obstruction theory. It sweeps too broadly for me,
and it--as a criminal defense attorney, I have been critical of
it for a very long time. The issue that he was raising is a
real one. He raises it from the Article II standpoint. Some of
us have raised it from the civil liberties standpoint.
What he really is arguing is not that the President cannot
be prosecuted. He says exactly the opposite. He says the
President can be charged with Federal crimes in office. He
believes the President could be charged with obstruction in
office. So he says the diametrically opposed thing to what many
people are saying about him.
What he believes is, just as Confucius said, that, ``The
start of wisdom is to call things by their proper names.'' He
wants to call this by its proper name. If the President commits
a crime, he wants that crime to be defined. He does not say, by
the way, that that same conduct cannot be another type of
crime. He was only talking about the Residual Clause of 1512.
Those were fair questions about statutory interpretation. I do
not agree with everything in his memo. I have said that
publicly. I disagree on some of his conclusions, but I
wholeheartedly agree with him that this is a serious problem
and it has to be defined.
Now, ultimately, I believe if you read his testimony, you
will find that he is more measured than some of my friends have
suggested. Even Clinton's own former appointees, like James
Clapper, said that yesterday he went as far as he could go as
Attorney General giving assurances. But this is a historic
moment for the Justice Department. I hope it does not pass.
They need this man, and they need it now.
I brought my children today, Aiden and Maddie, because I
think that they really should be here. I suspect they are here
because they heard that Senator Feinstein was giving out junk
food to kids.
[Laughter.]
Professor Turley. But I hope that they will also understand
the historic moment for what it is. And I thank you for the
honor of being part of this.
[The prepared statement of Prof. Turley appears as a
submission for the record.]
Chairman Graham [presiding]. Thank you.
Reverend Risher.
REV. SHARON WASHINGTON RISHER, ORDAINED
PASTOR, CHARLOTTE, NORTH CAROLINA
Reverend Risher. Good morning, Chairman Graham, Ranking
Member Feinstein, and Members of the Senate Judiciary
Committee. It is my honor to appear before you today to testify
on the nomination of William Barr to be Attorney General of the
United States.
My name is Reverend Sharon Risher, and I live in Charlotte,
North Carolina. My life, like so many other people's throughout
this Nation, has been forever changed by gun violence--gun
violence that is preventable with effective enforcement and
commonsense safety laws. On Wednesday, June 17th, 2015 is the
day that my life changed.
As a hospital trauma chaplain, I have worked and
experienced grief and tragedy and pain and loss as I worked
with patients and families to comfort them. But that night, I
was the one in need of comforting when I received the telephone
call that no American deserves to get. My beloved mother and
two of my cousins had been shot and killed in the church along
with six other parishioners at the Emanuel African Methodist
Episcopal Church in Charleston, South Carolina.
In the Charleston community which I was raised, when the
doors of the church was open, my family was in the pews. That
Wednesday was no different. A young White man entered the
church at the beginning of the Bible study. In the spirit of
our faith, he was welcomed in by the congregation and sat near
the pastor. After studying the Gospel of Mark, they held hands,
and bowed their heads, and closed their eyes, and held hands in
prayer. That was the final moment for many in that church. That
day that young man pulled out his gun and started firing. Some
ran, some hid under tables, but they were gunned down.
A house of worship is supposed to be a refuge from the
storms of everyday life, but that young man robbed my family
and the eight other families of their loved ones. Five people
survived. Five people have to live every day with that tragedy
in their hearts. After the massacre in Charleston, I struggled
to answer why my loved ones and so many others had been killed.
I was disturbed to learn that the shooting was premeditated and
driven by hate. The shooter targeted parishioners at Emanuel
simply because of the color of their skins.
Along with so many Americans, I was baffled at how such a
hateful man was able to get his hands on a gun. We later
discovered that a loophole in our gun laws allowed the shooter
to obtain the gun used to murder my mother and my cousins and
the six others in that church. That loophole allowed hatred to
be armed to kill. The person that killed my family members
should have not been able to buy that gun.
The National Instant Criminal Background Check System was
designed to keep guns out of the wrong hands, including
criminals, domestic abusers, and unlawful users of controlled
substances. The Charleston shooter had previously been arrested
for drug possession, something that should have blocked him
from obtaining a gun under our existing laws. Yet he was able
to legally purchase one because of a loophole in the Federal
law. You see, if the FBI does not finish a background check
within 3 days, the sale can proceed regardless of whether the
check had been completed, and that is exactly how the man who
killed my family exploited a loophole and got his gun.
And he is not the only one. The FBI reported that in 2017
alone, gun dealers sold at least 4,864 guns to prohibited
people before the background checks had been completed. Those
nearly 5,000 sales were primarily made to felons, domestic
abusers, or, like the man who killed my family, unlawful users
of controlled substances. A strong background check system is
the foundation for commonsense safety laws that keep guns out
of the hands of the wrong people. We cannot stop--we can stop
hate from being armed, but we need background checks on all gun
sales, and law enforcement needs enough time to complete the
background check.
Each day I wake up motivated to ensure that hate will not
win. As a member of the Everytown Survivor Network, I share my
story to put a human face on our Nation's gun violence crisis.
Our community of survivor advocates for change to help ensure
that no other family faces the type of tragedy we have
experienced. If he is confirmed as our Nation's next Attorney
General, Mr. Barr will serve as our Nation's top law
enforcement officer in a position of great power and influence.
I hope he will make it a priority to prevent gun violence and
work with Congress to update our laws and close loopholes that
enable guns to get in the wrong hand, just like that young man
filled with hate, murdered my family.
Nine lives were cut short in Charleston. Today I say the
names of my mother and my cousins and the six other people to
honor them in this most sacred place: my mother, Mrs. Ethel
Lance; my two cousins, Mrs. Susie Jackson and Tywanza Sanders;
my childhood friend, Myra Thompson; the pastor of the church,
Reverend Clementa Pinckney; Reverend Daniel Simmons; Reverend
Sharonda Coleman-Singleton; Mrs. Cynthia Hurd; Reverend DePayne
Middleton-Doctor. I pray that whenever you hear their names,
you feel empowered to help bring about change.
Thank you for listening, and I will answer any questions
that you have.
[The prepared statement of Rev. Risher appears as a
submission for the record.]
Chairman Graham. Thank you, Reverend.
Mr. Canterbury.
CHUCK CANTERBURY, NATIONAL PRESIDENT,
FRATERNAL ORDER OF POLICE, WASHINGTON, DC
Mr. Canterbury. Good morning, Mr. Chairman, Ranking Member
Feinstein, and distinguished Members of the Committee on the
Judiciary. I am the elected spokesperson of more than 345,000
rank and file police officers, the largest law enforcement
organization in the United States. I am very pleased to have
the opportunity to offer the strong and unequivocal support of
the FOP for the nomination of William P. Barr to be the next
Attorney General of the United States.
In my previous appearances before this Committee, I have
been proud to offer the FOP support for a number of nominees
with the expectation that they would be good leaders, that they
would serve our country honorably and effectively. In this
case, however, there is no need to speculate whether or not Mr.
Barr would make a good Attorney General because he has already
been a good Attorney General in the administration of President
George H.W. Bush. He had the experience, the knowledge, and the
ability to lead the Department then, and he certainly does now.
Mr. Barr's career of public service began as a clerk for a
judge on the U.S. Court of Appeals for the District of
Columbia, and he served a short tenure in the Reagan White
House. He then joined the Bush administration as Assistant
Attorney General for the Office of Legal Counsel in 1989.
President Bush took note of his leadership, integrity, and
commitment to law enforcement and promoted him to Deputy AG in
1990.
In 1991, he was named acting Attorney General and was
immediately faced with a public safety crisis. At the Talladega
Federal Prison, more than 100 Cuban inmates awaiting
transportation back to their country staged a riot and took
seven corrections officers and three Immigration and
Naturalization employees hostage. In the first hours of the
standoff, General Barr ordered the FBI to plan a hostage rescue
effort.
The Cuban inmates demanded that they be allowed to stay in
this country and released one of the hostages. Over the course
of the 9-day siege, it was clear then that negotiations were
failing. General Barr ordered the FBI to breach the prison and
rescue the hostages. They were freed without any loss of life,
and the incident was ended because of General Barr's decisive
action.
Following the successful resolution of this incident,
President Bush nominated him to be U.S. Attorney General.
The Committee on the Judiciary reported his nomination
unanimously, and the Senate confirmed him as the 77th Attorney
General. Through his service and his actions, he demonstrated
he was the right man for the job. The FOP believes he is the
right man for the job, again, today.
Two years ago, just after his inauguration, President Bush
issued three--oh, excuse me--President Trump issued three
Executive orders on law enforcement and public safety, the
first directed to the Federal Government to develop strategies
to enhance the protection and safety of our officers on the
beat. The others created a task force on crime reduction and
public safety, and for the development of a national strategy
to combat transnational criminal organizations trafficking in
human beings, weapons, and illicit drugs.
Mr. Chairman, during his tenure as Attorney General, Mr.
Barr directed and oversaw a similar transformation at the
Justice Department by refocusing its resources by making crimes
of violence, particularly gang violence, a top priority for law
enforcement. I submit to this Committee that Mr. Barr is the
perfect person to complete the work begun by General Sessions
with respect to focusing Federal resources to fight violent
crime because he has not only done it before, he has done it as
the Attorney General.
President Trump has clearly made law enforcement and public
safety a top priority. His nomination of William Barr to be the
next Attorney General demonstrates that these priorities have
not changed. We know Mr. Barr's record and abilities as well as
his prior experience in that office. The FOP shares his views,
and we confident that Mr. Barr will once again be a stellar top
cop. We believe the President made an outstanding choice, and
for Mr. Barr to return to public service as the Attorney
General of the United States will serve this country well.
The FOP proudly offers our full and vigorous support for
this nominee, and we urge this Committee to favorably report
this nomination just as you did in 1991. Thank you for the
opportunity to testify. I will be glad to answer any questions.
[The prepared statement of Mr. Canterbury appears as a
submission for the record.]
Chairman Graham. Thank you, all, very much. I appreciate
your testimony, and I will get us started here quickly.
Reverend Risher, thank you for your coming up here and
sharing your loss and your story and your hurt. Some comfort I
hope is that Mr. Barr said, if he is the Attorney General, he
will pursue red flag legislation that I am working on with Mr.
Blumenthal and others that would allow law enforcement, if they
have appropriate information, to go and deny somebody a gun who
is showing dangerous behavior. I think that is a real gap in
our law. Most of these cases, people are screaming before they
act, and we are just not listening. The guy down in Florida did
everything but take out an ad out in the paper, ``I am going to
kill somebody.'' And it would have been nice if the police
would have had a chance to go in and stop it before it
happened.
As to Dylann Roof, who is facing the death penalty in South
Carolina, he applied for a gun in West Columbia, South
Carolina. The system said he had just been arrested. During the
3 days of looking into the arrest, he had not been convicted.
The FBI agent called the wrong solicitor's office. There are
two counties in Columbia, and they did not find out the fact he
had admitted to being--possessing and using a substance that
would have kept him from owning a gun. So we need to reform the
laws, but that was sort of a mistake more than it was a
loophole.
Mr. Turley, thank you for very much for what you had to
say. The Special Counsel regulation is 28 CFR Sec. 600.8. It
says ``at the conclusion of the Special Counsel's work, he or
she shall provide the Attorney General with a confidential
report explaining the prosecution or declination decisions
reached by the Special Counsel.'' So do you think Barr will
take this report seriously if given to him?
Professor Turley. Absolutely.
Chairman Graham. Okay. It also says, ``The Attorney General
will notify the Ranking Member and Chairman of the Judiciary
Committee in both bodies.'' Do you think he will do that?
Professor Turley. Absolutely.
Chairman Graham. Okay. It also says, ``To the extent
consistent with applicable law, a description and explanation
of instances, if any, in which the Attorney General concluded
that a proposed action by a Special Counsel was so
inappropriate or unwarranted under established departmental
practices that it should not be pursued.'' So, under this
regulation, if Mr. Muller recommends a course of action and Mr.
Barr says I do not think we should do that, he has to tell us
about that event. Do you--do you agree that is what the
regulation requires?
Professor Turley. Absolutely.
Chairman Graham. Do you believe he will do that?
Professor Turley. Absolutely.
Chairman Graham. Okay. It also says, ``The Attorney General
may determine that public release of these reports would be in
the public interest to the extent that their release would
comply with applicable legal restrictions.'' Do you think he
will be as transparent as possible?
Professor Turley. Yes, and he said that, and I could add
one thing to this, Mr. Chairman. The Committee pressed him on
what he meant by that. I know that Ranking Member Feinstein
also raised this in her comments. But as James Clapper and
other people noted yesterday, there is only so much that--so
far that a nominee can go. You cannot ask that he satisfy
ethical standards when asking him to commit in advance to the
release of information that he has not seen yet, because part
of his duty is to protect things like Rule 6(c) information,
grand jury information, and the derivative information,
privileged information. He is duty-bound to review that. So the
only thing a nominee can say is that he is going to err on the
side of transparency and try to get as much of the report to
Congress as possible.
Chairman Graham. Based on what you know about Mr. Barr,
should we take him at his word?
Professor Turley. Absolutely. I have never known Bill
Barr--in all the years that we have known each other, I have
never known him to be anything but honest and straightforward.
The last time he came in front of this Committee, the Chairman
of that Committee, one of your predecessors, praised Barr. He
said that this is sort of a throwback to what Committee
hearings used to be like where the nominee actually answered
questions. He is a very honest person. And if he said that he
is going to err on the side of transparency, you can take it to
the bank.
Chairman Graham. Okay. So, Mr. Johnson, thank you for
coming today. I listened to your concerns about Mr. Barr. I
voted for Holder and Lynch. Do you think I made a good decision
voting for them to be Attorney General?
Mr. Johnson. I do.
Chairman Graham. Why?
Mr. Johnson. I think their presentation before this
Committee was honest, direct, but more importantly, they
committed to protect our democracy. For African Americans,
protecting democracy is to also rigorously enforce efforts to
ensure that all citizens can cast their ballot. They committed
to that, and they demonstrated that while they were in office.
Chairman Graham. Okay. And you believe Mr. Barr will not be
committed to that?
Mr. Johnson. I have serious reservations and concerns.
Those concerns first start with this administration, their lack
of enforcing Section 2 of the Voting Rights Act.
Chairman Graham. How much of it is about this
administration versus Mr. Barr?
Mr. Johnson. In many ways it is difficult to separate the
two.
Chairman Graham. So I just want to suggest something to
you. There are a lot of concerns I had about the Obama
administration. I will not bore you with my concerns. But I
thought he chose wisely with Mr. Holder and Ms. Lynch because
they have differences on policy than I, because I am a
Republican, but I thought they would be good stewards of the
law and they would be fair arbiters being Attorney General. It
never crossed my mind that I would vote against them because I
had policy disagreements. If that is going to be the new
standard, none of us are going to vote for anybody on the other
side. So thank you for your input----
Mr. Johnson. But if I may, Mr. Chair?
Chairman Graham. Please.
Mr. Johnson. Going beyond policy disagreement, this Nation
has had a long history of discriminatory practices,
particularly in the criminal justice system. And any time we
have a nominee come before this Committee who truly do not
appreciate the disparities in the criminal justice system, as
he stated yesterday, that goes beyond policy disagreement. That
goes toward whether or not we understand the equal protection
of the law should be afforded to all citizens.
Chairman Graham. Well, I want to make sure you understand
what he said, because I remember Senator Booker asking him, and
he says, yes, that crack cocaine sentences were
disproportionate to the African-American individual, and that
is why we changed the disparity between powder cocaine and
crack cocaine. He acknowledged that. But in 1992, he thought
the biggest victims of rampant violent crime were, you know,
low-income, mostly minority communities. So I do not buy what
you are saying about him not understanding their differences
and how one group is affected, particularly in the drug arena.
So, I think, what he was trying to do is talk about crime.
But here is what is perplexing to me. The NAACP has been in
the fight for social and racial justice for a very long time,
and I do not know how we got here, but you do a scorecard every
year. And in 2017, every Democrat got 100 percent. I got 22
percent; Grassley got 11; Cornyn got 11; Lee got 11; Cruz got
11; Sasse got 6; Ernst got 11; Kennedy got 17; Tillis got 11;
and Crapo got 6.
There is a disparity here. I would hope you think because I
disagree with your scorecard rating that I am not a racist. And
I certainly do not know how to close this gap, but I would like
to.
Mr. Johnson. Right. So the NAACP, we are a nonpartisan
organization. Our scorecard is not based on political parties.
Our scorecard is based on our agenda, and our agenda----
Chairman Graham. Well, how do you explain the differences?
Mr. Johnson. If you will allow me, our agenda is set by the
delegates from across the country, and we are very clear that
discrimination should not be a part of any agenda.
Chairman Graham. How many of them are Republican?
Mr. Johnson. Excuse me.
Chairman Graham. How many of them are Republican?
Mr. Johnson. We do not determine how many members are
Republicans. We have Republicans among our membership, on our
national board.
Chairman Graham. I do not want to----
Mr. Johnson. But if you will allow me to explain the report
card.
Chairman Graham. Please.
Mr. Johnson. And so we establish our agenda not based on
political parties, because we understand that political parties
are nothing more than vehicles for agendas. And as many African
Americans were members of the Republican Party before the 1965
Voting Rights Act, many African Americans may decide their
agenda based on the party's platform. And if party platforms
align with the needs and interests of our communities, then
they will vote for a platform that support their needs, whether
it is access to quality public education, ensure that all
African Americans can cast a fair ballot, fair housing
policies, making sure we have true tests to determine disparate
impact. Those are the issues we are concerned about. Those are
not partisan issues. Those are policy issues. And individuals
who run under party labels, they decide based on the platform
that they believe which party label they run under. We do not
make partisan decisions. We make policy decisions that are
informed by members across the country. Some are Democrats,
some are libertarians, some are Republicans.
Chairman Graham. You may not think that you are making--
that your agenda is party-neutral. All I can tell you, as
somebody who wants to solve problems, it is pretty odd to me
that every Democrat gets 100 percent, and I do the best as a
Republican getting 22. Maybe the problem is all on our side. I
do not think so. I think the agenda that you are pursuing in
the eyes of conservatives is not as good for the country as you
think it is, and it has got nothing to do about Republican and
Democrat. It is more it has to do about liberal and
conservative.
You have got to ask yourself: Why does every conservative
on this Committee--the best I can do is to get 22?
Mr. Morial. Mr. Chairman?
Mr. Johnson. Well, I think it is a different question. I
think the members of the Republican Party should ask
yourselves: Are you willing to be expansive enough and
inclusive----
Chairman Graham. That is a good question.
Mr. Johnson. To ensure the rights of individuals despite
their racial background, their interests are met, not based on
conservative or liberal tendencies but based on those
individuals' needs----
Chairman Graham. Fair enough.
Mr. Johnson. And the interests that they advocate for.
Chairman Graham. Will you ask yourselves why I cannot get
better than 22 percent from conservatives?
Mr. Johnson. Yes, sure, we can go down each one of the
policy agendas----
Chairman Graham. Fair enough.
Mr. Johnson. And we can go through each one of them, and we
can make a determination.
Mr. Morial. Mr. Chairman, let me----
Chairman Graham. That is a good discussion.
Mr. Morial. I want to sharpen this discussion, because I
think it is an important discussion, and give you what concerns
me when it comes to this entire discussion. This is about
whether the nominee is going to aggressively, faithfully,
enforce the civil rights laws, and let me give you a couple
facts.
Chairman Graham. Can I ask you one question? Then you can
give me all the facts you want.
Mr. Morial. Yes.
Chairman Graham. Name one Republican that you would
support.
Mr. Morial. I am not here to talk about Republicans and
Democrats. I supported him when he was a Democrat.
Chairman Graham. I just cannot think of a better person to
pick than Mr. Barr if you are a Republican. So, I do not know
who is going to do better than him in terms of experience,
judgment, and temperament. So, if this guy does not cut it, I
am at a loss of who we can pick.
Mr. Morial. Well, but, Senator, let me make my point
because I want the Committee to be extremely clear on this, and
I want to cite two examples. Attorney General Sessions--and we
have to talk about his record because the question for us is
whether Mr. Barr is going to continue the policies of Attorney
General Sessions when it comes to enforcing civil rights laws.
In two instances, Attorney General Sessions, in his first days
and months in office, had the Justice Department change sides
in the middle of an important civil rights case.
Chairman Graham. Elections matter.
Mr. Morial. Texas--but, Senator, the enforcement of the law
does not. Enforcement of civil rights laws is neutral when it
comes to elections. So what Attorney General Sessions had the
Justice Department do is, switch in a Texas voter ID law after
the judge had made a finding, a preliminary finding that the
Texas voter ID law was discriminatory. You know what it would
be an example of? If Drew Brees or Tom Brady, after leading his
team to a lead, went in at halftime and came out with the
jersey of the other team on. In the middle of the case.
Second, in the Ohio voter-purge case, the same thing
occurs. Why did the Justice Department, without any discussion
with the Congress, without any discussion with the civil rights
community, switch sides miraculously and immediately? That
should not have anything to do with who wins an election.
Chairman Graham. I will say this: I could have given you a
hundred examples of where Eric Holder and Loretta Lynch had a
different view of a statute or a policy than I did. But if you
do not expect elections to matter, that is a mistake. The
policy differences we have are real. To expect Trump to win and
everything Obama did stay the same is unrealistic. All I am
asking is let us look at qualifications, because a Democrat
will win 1 day and they will nominate somebody with a
completely different policy view than I have. It will be a very
simple decision. If I can find a difference, I will vote no.
The question I am trying to ask the country is: Do you expect
quality people to be chosen by the other side who has
differences with you? If the answer is ``Yes,'' then Mr. Barr
is as good as it will get.
Mr. Morial. Well, you know, Senator, lots of us thought you
were going to be nominated as Attorney General.
Chairman Graham. Would you have supported me?
Mr. Morial. Hey, guess what? I know we would have had a
discussion, and I would not close the door on that.
Chairman Graham. Well, I appreciate that.
Mr. Morial. So I will say that. We thought you were going
to be nominated----
Chairman Graham. But I do not think I am nearly as
qualified as Mr. Barr. I do not think I could hold a candle to
him. But the fact you said that about me, I appreciate the hell
out of it. And let us see if we can find a way to get me above
22 percent.
Mr. Morial. Let us work on it.
Chairman Graham. All right. We may change a few policies.
Senator Feinstein.
Senator Feinstein. Reverend Risher, I just want to say
something to you personally. I will never, ever forget your
words, your emotion, the truth you spoke, and your feelings.
And I just want you to know that there are so many of us that
now know so many victims of guns in this country that we will
continue to fight on to change this environment. So just know
that. And I am so happy. You are one of the best witnesses I
have ever heard, and your words will not be lost. I hope your
family is in a better place. Thank you.
Reverend Risher. Thank you so much.
Senator Feinstein. Thank you.
Mr. Kinkopf, if I may, Mr. Barr has stated that the memo
that I spent all day reading and is very complicated, has
stated that that memo was narrowly focused on obstruction of
justice. However, Mr. Barr's arguments outline broad
presidential powers. Please explain how his view of Executive
authority could impact the Mueller investigation.
Professor Kinkopf. Okay. Well, in any number of ways, I
think most fundamental is his claim, without limit or
qualification, that the President is the executive branch and
that, therefore, all Executive power is vested in the President
personally, that the President can personally exercise that
power. And not leaving this to speculation or to chance, the
memo specifically says that the President can control any
litigation, any prosecution or investigation, including a
prosecution or investigation of the President personally or the
President's family members. And, further, it says that the
Attorney General, the Special Counsel, anyone serving under the
President, is merely the President's hands.
Senator Feinstein. Well, it was certainly the case for the
unitary executive and the all-powerful central figure. There is
no question, I think, about that. In my mind, the question is,
you know, how--does he really mean this? And it is hard if you
do not know a man--and he is here and he is in front of you for
the first time and you meet him--it is very hard to make those
judgments.
He is obviously very smart. He was Attorney General before.
No one can say he is not qualified. The question comes we are
at a time and a place where there are a lot of other subjects
that are important.
He has stated that his memo was narrowly focused. Mr.
Turley--we have got a Defense Counsel, I guess--how do you see
that same question I asked Professor Kinkopf?
Professor Turley. It is a fair question, and Neil and I
agree actually on a great deal because we both have real
difficulty with the expansion of Executive authority. We are
both critics of aspects of the unitary executive theory, but we
disagree on the Barr memo. I think it was narrow. He says in
the memo that he believes the President can be charged with
obstruction in office. He believes that a President can be
charged with other crimes in office.
And where I disagree with Neil is that it is true that he
says in his memos that the Constitution does not limit the
power of the presidency in these regards, and that is
demonstrably true. It is not in the Constitution. There are not
those limitations. But he has said repeatedly in writing and
before this Committee that he believes that a President can be
charged for acts in office. He also believes that if the
President misuses his authority, it can be an abuse of power
and it can be a violation of his duty to faithfully execute the
U.S. laws.
Senator Feinstein. Well, it does not mean that Mr. Mueller
could recommend indictment of the President and Mr. Barr could
disagree.
Professor Turley. On that, I am not sure where Neil is----
Senator Feinstein. Now, that is an esoteric question, I
understand, but I think it is along the line of your thinking.
Professor Turley. And I agree with some of the Senators on
this Committee. I have always said that a sitting President
could be indicted in office. I disagree with the OLC memos in
that respect. Would a General Barr change that position? My
guess is he probably would not. Would the Special Counsel ask
for a change? My guess is probably not. It is not really--if
you look at the history of both of these individuals, they are
not like to either disagree or move for a change.
Senator Feinstein. Let me ask both of you or anyone who
wants to answer this, this memo and the whole concept of the
unitary executive, all powerful, I think, has never been better
expressed in a contemporary way than I have read it in this
memo. And I was thinking last night, obviously Mr. Barr is
qualified, he is bright, he is capable. But it is hard for me
to understand why, with our Constitution, our Bill of Rights,
why we want somebody that is all powerful in every way to take
these actions.
Professor Kinkopf. Senator, I think----
Senator Feinstein. My question was not well stated, but I
think you got the gist of it.
Professor Kinkopf. Right. Senator, I think we do not. So I
would agree that William Barr is amply well qualified by virtue
of experience, by virtue of intellect, by virtue of integrity.
I have no doubt that he will stand up for his vision of the
Constitution, and that is what I find so troubling, because his
vision of the Constitution is so expansive and alarming with
respect to the President's power. That is why I have quoted it.
It is not my characterization. He says directly, ``The
President alone is the executive branch.'' He speaks repeatedly
through the memo of the President's ``illimitable'' powers. And
while it is true that the Constitution does not specifically
authorize Congress to limit the President's prosecutorial
discretion by its text, it also does not by its text give
prosecutorial discretion to the President. All investigation
and prosecution is done pursuant to laws enacted by Congress,
and within that authority to enact those laws is the authority
to establish the parameters on that power. You do that, and you
do that validly and legitimately. The Supreme Court has said
that repeatedly. And what is so alarming about the Barr memo is
that it reads the Constitution in a way that frees the
President from those constraints.
Professor Turley. This is where we do disagree, and I
thought the question was presented quite well, because it does
isolate where we depart, and that is, first of all, even though
I do not like the unitary executive theory, there are many,
many judges and lawyers who believe fervently in it. Also,
there is not one single definition of that theory. There is
sort of a gradation of where you fall on that.
Bill Barr actually disagrees with the position of the Trump
legal team. He expressly said that they are wrong, that it does
not curtail a President's authority to prosecute him in office.
So he is not at the extreme on this.
But the other thing I wanted to note is, that I think where
Neil and I disagree is that Neil is taking Barr's statement as
to the constitutional footprint, the mandate of the
Constitution, which does not have limitations in these areas,
from how they would apply, where he said very clearly the
President cannot do whatever he wants; there are consequences;
he can even be prosecuted.
Senator Feinstein. Thank you.
Thank you, Mr. Chairman.
Chairman Graham. Senator Hawley.
Senator Hawley. Thank you, Mr. Chairman, and thanks to all
of you for being here today.
General Mukasey, can I start with you, I think? And thank
you, General, for your long service both as Attorney General,
distinguished service, and on the Federal bench. As a former
Attorney General yourself, of course, you know the office
firsthand. You have done this job. You have done it at a time
of great national security peril for this country.
You referenced in your opening statement the qualifications
that Bill Barr brings, would bring to this job, and the
advantages in some ways he would have having done the job
already. Can you just speak more to that? I mean, I imagine if
you were coming back to be Attorney General again, there are
things you would do differently, knowing the job as you do now.
So can you just elaborate for us why you think that his prior
experience is a major plus?
Judge Mukasey. Quite simply, he does not have and will not
have the same steep learning curve that I had coming out of
Article III. He does not have to do DOJ 101 and learn how each
office runs, and he does not have to learn how they interact.
He does not have to contemplate from ground zero the powers and
the authority of each of the offices under him. He has seen it
and done it.
But I do not want to overstate the degree to which his
experience prepares him. Obviously, we are living in a
different time, and the issues are different. He is going to
have to face that. But he is going to be able to devote 100
percent of his energy to doing that rather than learning the
basics. That is what I meant.
If I can go back, if I may, to the conversation you were
just having about the President's powers, I do happen to
believe in the unitary executive, unlike the other two folks,
and this is not a question of a religious belief, and it is not
some quirky attitude. The Constitution says at the beginning of
Article II, ``The Executive authority shall be vested in the
President of the United States.'' It does not say, ``all except
a little bit of it.'' It does not say, ``most of it.'' It says,
``the Executive power.'' That means, all of it.
Obviously--obviously--the President can be removed not only
for crimes, but also for using his conferred powers in an
improper way, and the President runs the political risk of
having that happen every time he does something that comes
close to the line or goes over the line. And that, I think, is
the constraint. And it has so far been a reliable constraint.
Everybody says that, ``Well, he could remove Mueller.'' Perhaps
he could. But guess what? He has not done it yet, and there is
good reason why he has not done it yet: because the Earth would
open up and swallow him. We all know that. So I think that that
is really what is at stake here, the political risk.
Senator Hawley. General Mukasey, just staying with that
point, because I think this is interesting, and, again, as
someone who has held this office and advised Presidents and
enforced the law as you have, you are familiar with Mr. Barr's
views on Executive authority, Article II power. Do you think
that those are out of the mainstream?
Judge Mukasey. I do not.
Senator Hawley. Do you think that they are inconsistent
with the Constitution?
Judge Mukasey. No. They are faithful to the Constitution.
That is what he is faithful to.
Senator Hawley. Go ahead. I mean, explain to us why you
think it is important that the fact that Article II vests all
Executive power in one person, in the President of the United
States, why that is an important concept and important for the
functioning of our constitutional system.
Judge Mukasey. It is important because it assures that
there is going to be political responsibility lodged someplace.
It assures that when people in the executive act in a
particular way that they, and the person at the top, can be
held responsible for what they do. People spoke about
independent agencies. They are in a sense independent in the
sense that they do not relate to other agencies. But they are
not a fourth or fifth or sixth branch of Government. They are
within the executive. And it is important that that be true,
because there has got to be somebody responsible for how that
functions.
The people who wrote the Constitution were--if they were
afraid of anything, what they were afraid of was their
experience under the Articles of Confederation where there had
been a very weak executive and no ability of the govern--of the
country to defend itself. They needed a strong executive, and
that was the Constitution they wrote. If we want to amend it, I
guess we can. But that is what is there.
Senator Hawley. Tell me this: In your view, the Vesting
Clause, the fact that the Vesting Clause in Article II gives
the Executive power to a President of the United States, a
single President of the United States, does that mean that this
individual, the President of the United States, has illimitable
power or is able to do whatever he or she may please?
Judge Mukasey. No, because the one duty that it imposes on
the President--and this is also imposed by the Constitution--is
to see to it that the laws are faithfully enforced. That is
just as much a constitutional duty as any other. And if he does
not do that, he is subject to removal. That is his obligation.
That is his really principal obligation.
Senator Hawley. Thank you very much.
Mr. Canterbury, I want to ask you, you lead the Fraternal
Order of Police. It is incredibly important to me that the top
law enforcement officer in this country, the Attorney General,
have the confidence of the men and women of our Nation's police
forces. Can you just elaborate for us what the most important
issues were for your members that led your group to support
former Attorney General Barr, hopefully future Attorney General
Barr, for this nomination?
Mr. Canterbury. One is his past experiences, his job that
he did in the prior administration. We have been around a long
time, and we knew him then. We saw the way he administered the
Department of Justice, the way he worked with State and local
law enforcement.
Regardless of who leads the Justice Department, if there is
no outreach to State and local law enforcement, then it really
does not transcend to the State and local level. Under former
Attorney General Barr, he did just that, and as General
Sessions did and as Eric Holder did. You know, we have
testified for a number of nominees over the years. Eric Holder
had a tremendous reputation as a prosecutor in the law
enforcement community, so I sat at this very table and
testified for him. It is all based on the experiences that they
had as either U.S. Attorney, Federal judges, or even in private
practice.
Senator Hawley. Why do you think it is so important to
police officers that they have a capable, effective,
experienced Attorney General?
Mr. Canterbury. Just the administration of justice. I have
heard the complaints about the Civil Rights Division, but we
know from experience that a collaborative effort rather than
consent decrees have real consequences in the cities. For
instance, in Cincinnati, when the administration entered a
collaborative agreement and all parties were at the table, we
came out with a plan to help bring that city back together. In
the last election in Cincinnati, the FOP endorsed a member of
the NAACP to be a city councilmember. That would not have
happened if they had not gotten to know each other sitting
around a table working together for the betterment of that
community.
We favor the collaborative approach for consent decrees
because they are real circumstances other than just say you
will do this or, you know, we will not leave. Then they do it,
and then obviously nothing ever changes. But when it is
collaborative and everybody is at the table, we saw real
change.
Senator Hawley. Thank you very much.
Thank you, Mr. Chairman.
Chairman Graham. Thank you.
Senator Durbin.
Senator Durbin. Thanks, Mr. Chairman.
Reverend Risher, thank you. Thank you for your testimony,
and thank you for your touching words about that telephone
call. I will remember that, because so many people receive that
telephone call about people that they love who are victims of
gun violence. I am honored to represent the city of Chicago.
Sadly, we have a lot of gun violence and a lot of victims,
families just like yours who will never, ever forget as long as
they live what happened.
I often think about what I am going to say to them. I
stopped saying, ``Let me tell you about a new law that I have
got in mind.'' I have stopped saying that because we do not
pass laws on gun safety in this United States Congress. We do
not. And it is unfortunate. We do not even pass the most basic
and obvious things about background checks. We just cannot do
it, politically cannot do it. A lot of reasons for it I will
not get into here, but I will just suggest to you that, as fate
would have it, sitting to your left is a gentleman, Mr.
Canterbury, representing--345,000, did you say?
Mr. Canterbury. Yes, sir.
Senator Durbin. Members of the police who put their lives
on the line every single day, and those guns on the street are
aimed at them many times. And if there is ever a moment when
the victims of gun violence like you, Reverend Risher, and Mr.
Canterbury and the police ever come together on agreement on a
piece of legislation, call me immediately. It will be a
breakthrough moment. We can talk about gun safety with credible
voices on both sides.
Mr. Canterbury, while on the subject, thank you for the
First Step Act. The endorsement of the Fraternal Order of
Police and criminal justice reform and prison reform was
historic and meaningful and made a difference.
It was also noteworthy that we had the support of the
prosecutors, the criminal prosecutors across this country, and
the support of the American Civil Liberties Union. Go figure.
How many times has this bunch ever gotten together? Not very
often. But I think we passed something historic as a result of
that, and I just want to personally thank you and publicly
thank you for the role that your organization played in it.
Mr. Johnson, we are looking back on the history of Mr.
Barr, the things that he said, things that he has done, and I
gave a speech that people have heard a few times now, but they
were startled the first time I gave it. The title of my speech
is, ``Let Me Tell You About the Worst Vote I Ever Cast as a
Member of Congress.''
It was over 25 years ago, and I will bet you know what it
was. It was 100-to-1, crack cocaine to powder cocaine. We were
determined to stop this new narcotic in its tracks. It was
super cheap. It was deadly. Pregnant women who got hooked on
crack cocaine would give birth to babies with lifelong
problems, and we came down as hard as we could, not just with
100-to-1 but mandatory minimum sentences on top of it. Three
strikes and you were out for life, and we hit them hard, and we
watched our prison population explode, primarily with African
Americans.
I look back on it as a big mistake, one of the worst I ever
made as a public official, and I have tried to rectify it. We
passed the Fair Sentencing Act 8 years ago. We have now passed
the First Step Act. We are starting to give to these men and
some women a chance to start their lives again.
So now we look at Mr. Barr, and some of the things he said
were consistent with my vote and the votes of a lot of
Democrats back in the day when we were getting tough on
narcotics, and he was as tough as it gets. He was writing books
about building more prisons and putting more people in these
prisons. He has continued in that vein up until the last few
years.
So I just want to tell you, I pray for redemption, both
personal and political. Do you think Mr. Barr is entitled to a
chance to redeem himself when it comes to this issue?
Mr. Johnson. Thank you, Senator Durbin. I think any
individual is entitled to redeem himself when they make a
mistake. Our position on mass incarceration is just that. We
have had a lot of individuals who have made a mistake who
should have been exonerated or not prosecuted to the extent
they were.
I grew up in Detroit, Michigan. I lived through the crack
epidemic in the 1980s. I have seen the damage it did, but I
have also seen many individuals who were thrown away for many,
many years. For an individual who is situated to acknowledge
the history of what took place and, as you have just done, to
say I made a mistake, that is a good thing. I have not heard
that from the nominee. That is my concern.
The other concern I have goes back to the exchange earlier
when we oftentimes conflate civil rights issues, issues of
democracy, with partisan considerations. Ensuring that
individuals have access to the vote is not a partisan issue. It
is an issue of democracy, and any A.G. should vigorously
protect the right of individuals to vote, especially when over
the last 2 years we have seen more attacks on voter suppression
than we have seen in the last 25 years.
Issues of equal protection under the law, it is not a
partisan issue. It is an issue to ensure that all citizens of
this Nation are afforded equal treatment.
So our objection to Mr. Barr's nomination is not a partisan
issue. It is not an issue of disagreement. It is an issue of
concern as it relates to the mass incarceration and the
vigorous prosecution that took place in the 1990s and whether
or not we are considering a nominee who is still thinking in
the 1990s frame or are we looking at a nominee who is really
looking at the First Step Act and the progress that has been
made.
Senator Durbin. I only have a minute left, but I want to
take it to the issue that you took it to, and I invite Mayor
Morial to join in on this too.
This question of election integrity has become a code word.
When you hear election integrity from the other political
party, it is about making sure that people who are not
qualified and not legally eligible do not vote, and I do not
think anybody disagrees with that premise. But there is
something else going on in the name of voter integrity, and
that is obstacles to voting that are totally unnecessary and
really discourage people from using this right which is
fundamental to a democracy.
When I held hearings in this Committee in Ohio and in
Florida and asked them about ID cards and early voting and
said, what is the incidence of voting abuse in your State that
led you to make it harder to vote, there were none. I think it
is just a policy, a political policy, to fight demographics to
try to keep people away from the polls who may change the
outcomes of elections.
I did not hear yesterday from Mr. Barr any commitment to
voter integrity in the terms that you and I would probably
discuss it, and that concerns me. I am not sure I can expect to
hear it under this administration.
But--Mr. Morial, would you close?
Mr. Morial. I think there is something important about what
you are saying. I would certainly point the Committee to exit
polls that took place after the 2018 election wherein people
were asked, Do you believe that voter suppression or voter
fraud was a greater issue? Voter suppression won the poll of
the American people overwhelmingly. These are exit polls where
the numbers were sort of 58, and voter fraud was down, maybe in
the thirties or forties. That is number one.
Number two, the Shelby case has done significant damage,
because it was post-Shelby that 40--the shenanigans of voter
suppression, of cutting back on early voting, on voter ID laws,
on restricting groups like the League of Women Voters in
conducting voter registration drives really, really exploded.
Some 40 States had proposals to restrict access to the ballot
box.
When I think about this, I think about it that we are
waging war to, quote, ``promote democracy,'' Senator Graham, in
Iraq, in Afghanistan. But right here on the home front, how can
we countenance efforts based on no evidence to restrict access
to the ballot box?
The Shelby decision, I predict, will be seen in history the
way Dred was seen, the way Plessy was seen: as a bad, ill-
advised decision. We need--because what we are left with is the
power of the Justice Department under Section 2, and under
Sessions, not one single Section 2 case was brought even though
you have had this explosion of voter suppression efforts.
So, what we need is an Attorney General who says, I am
committed to the utilization of my Section 2 of the Voting
Rights Act powers to enforce the Voting Rights Act. I would
certainly encourage that the nominee be asked his position on
this, because this is so crucial to the protection of
democracy, which is really what this Nation is all about.
Democracy and voting is at the foundation of our system.
Chairman Graham. I will make a quick comment, and then,
Senator Kennedy.
I am glad you mentioned Iraq and other places where we are
trying to help people. There was an attack today on a
restaurant. I think it is the same restaurant I visited with
Kurds and Arabs and others in Manbij, Syria, to hold on to some
representative government. Unfortunately, I believe some
American advisors were killed there by ISIS. So this is not the
subject matter of the hearing, but I want to make a quick
statement.
My concern about the statements made by President Trump is
that you have set in motion enthusiasm by the enemy we are
fighting. You have made people who we are trying to help wonder
about us, and as they get bolder, the people we are trying to
help are going to get more uncertain. I saw this in Iraq, and I
am now seeing it in Syria.
Every American wants our troops to come home, but I think
all of us want to make sure that when they do come home, we are
safe, and I do not know how we are ever going to be safe if
people over there cannot, at least, sit down and talk with each
other. The only reason the Kurds and the Arabs and the
Christians were in that restaurant was because we gave them the
space to be in that restaurant.
You can think what you want to about those people over
there, but they have had enough of killing. They would love to
have the opportunity that we have, to fix their problems
without the force of violence.
So I would hope the President would look long and hard
before he set it in Syria. I know people are frustrated, but we
are never going to be safe here unless we are willing to help
people over there who will stand up against this radical
ideology.
Here is the good news. Very few fathers and mothers over
there want to turn their daughters over to ISIS, their sons
over to ISIS. They just need our help.
So to those who lost their lives today in Syria, you were
defending America, in my view. To those in Syria who are trying
to work together, you are providing the best in hope for your
country. I hope the President will look long and hard about
what we are doing in Syria.
Senator Kennedy.
Senator Kennedy. Thank you, Mr. Chairman.
Pastor, I am very, very sorry for your loss. I wanted to
tell you that personally.
Reverend Risher. Thank you, Senator.
Senator Kennedy. Before I ask my sole question, which I
will direct to each of you to comment briefly, if you could, I
want to do a couple of things. I want to give a shout out to my
former mayor, Mayor Morial. Many of you know him as the
president and chief executive officer of the Urban League. I,
of course, know him in that capacity as well, but I know him as
our mayor in New Orleans and as the head of the League of
Cities and a State senator. We still claim him in Louisiana.
I also want to recognize his sidekick, Senator Cravins--
former State Senator Cravins. We miss him in Louisiana, too.
I listened to the discussion we had about the scorecard
that Chairman Graham brought up. I want to make one very gentle
observation that may be appropriate in other areas, including
but not limited to the challenges we face with the shutdown,
and that is, that so long as all of us on both sides and all
sides and of every political persuasion are drunk on certainty
and virtue, it is going to be hard to make progress. We
probably ought to listen more and talk a little less.
Here is my question, and if you do not care to answer it,
that is okay, or if you do not have any thoughts, but I would
like to know this. As you know, we have a Sixth Amendment right
to counsel in America. It is part of our Bill of Rights. But in
some instances, in too many instances, it is a hollow promise,
and I would like to know your thoughts about our Public
Defender system in America and whether you think it comports
with the requirements of the Sixth Amendment, the right to
counsel.
We will start down here and just go down there, if that is
okay. I would ask you all to be brief because I want everybody
to have a chance.
Mr. Canterbury. From our experience, the Public Defender
system is in dire need of assistance. It leads to plea bargains
that should not have happened, and we would definitely support
more money for right to counsel. We do not take a back seat to
anybody on your right to be represented. The system is woefully
underfunded.
Senator Kennedy. Okay. Thank you, sir.
Pastor?
Reverend Risher. I believe our Public Defender Office needs
resources. Most of the people that receive a Public Defender
are marginalized people without resources, and their
opportunity to have the best counsel they can is not something
they get, and I would want that office to be able to serve
everyone regardless of whether they have money or not.
Senator Kennedy. Okay.
Professor Turley. Senator, I am particularly thankful for
you to raise this issue. As a criminal defense attorney, I can
tell you that the Public Defender system is an utter wreck. It
is underfunded. Judges are sanctioning Public Defenders because
they have too many cases and they cannot get to court. So
Public Defenders are in this position where they cannot handle
all the cases, and yet they are held in contempt, but they do
not want to do a case inappropriately, without zealous
representation.
So they have this absolutely impossible situation, and it
is even worse in the State system. I gave a speech in
Pittsburgh and I sat down with some Public Defenders there. The
Public Defenders in Pittsburgh who I had dinner with are all
moonlighting as bartenders and waiters to try to continue to be
Public Defenders and feed their families. I mean, that is how
bad the system is.
Senator Kennedy. Professor?
Professor Kinkopf. I agree that Public Defenders are heroic
public servants. They are overworked, they are underpaid, and
the system of public defense and provision of counsel needs to
expand far beyond even the limited area it applies to now, into
municipal courts, into infractions that should not, but do, end
up in people serving jail time.
Ms. Cary. Senator, I am the daughter of a criminal defense
lawyer. I am married to a criminal defense lawyer, and he is
the son of a criminal defense lawyer. So I am all in favor of
great lawyering available for all Americans who find themselves
in front of a courtroom.
The thing that I would suggest is, I am aware here, in
Washington, of many law firms who are partnering pro bono with
Public Defender services to try to get young people in court
and get them great experience while also giving good
representation to people who need it. Maybe that is one of the
answers that you can look into. But my understanding is they
need all the help they can get, and maybe young people can
help.
Senator Kennedy. Thanks.
Mr. Morial. A couple of quick things. I had the great
privilege and pleasure last year to speak in Atlanta to the
Federal Public Defender Service at its convening and gathering,
and I would offer to the Committee perhaps this, as an example
of a bipartisan-oriented initiative for this Committee, to hold
hearings and do an examination of both the Federal Public
Defender system, which may be in a little bit better shape but
underfunded and understaffed, as well as local Public Defender
systems, and you will get a real sense of what everyone has
said, how stretched, how overworked, and how damaging this is
to the operation of justice and to the constitutional guarantee
of the Sixth Amendment.
The last thing I would say is, in the late 1980s, Senator
Kennedy, I was part of a small group of lawyers that actually
challenged the very same issue in Louisiana. We challenged it
by asking the State Supreme Court to conduct an investigation,
which they did. They found that the system was underfunded, but
then they took the position that, as the Supreme Court, they
could not instruct the executive branch to adequately fund the
Public Defender system.
The bottom line here is, I would offer this, and I am glad
you raised it, as an important element of this discussion
around criminal justice reform, and that is to repair, to fix,
to reform the Public Defender systems both at the Federal, at
the State, and also at the local levels across this Nation.
Senator Kennedy. Thank you.
Mr. Thompson. Thank you, Senator Kennedy, for raising this
issue. As someone who served on the board, at one time, of the
Atlanta Federal Defender Program, I think that the Public
Defender program, definitely at the Federal level, needs
strengthening. However, at the State level, it is in total
collapse. I think what the Department of Justice can do, and
you can pursue this with Attorney General nominee Barr, is
through the Office of Justice Programs encourage OJP to develop
programs to assist State Public Defender Offices, appropriate
funds for that purpose in terms of the grants, because the
Department of Justice is not the Department of Federal
Prosecution. It is the Department of Justice. Thank you.
Mr. Johnson. I certainly agree with the panelists today
that the Public Defender system is in dire need. I served as a
commissioner on the State of Mississippi Access to Justice
Commission, and we reviewed this issue. Mississippi is one of
the poorest States, similar to Louisiana, and what we found was
a system so corrupt it was one of the primary factors for
prison overcrowding, that a large number of individuals are
sitting in jail as pre-trial detainees because they have
ineffective counsel or no counsel at all. So it is an issue
that I agree with my colleague, Marc Morial, that this could be
a bipartisan issue we could work on because the need is
definitely there.
Senator Kennedy. Judge?
Judge Mukasey. Senator, in my experience, I think it is
probably more limited than virtually the experience of all of
the other panelists because my experience is largely confined
to one district in the United States. That said, my experience
with Federal defenders in the Southern District of New York was
that they were people of unparalleled skill. There was
competition to get those jobs, and they were highly valued.
Similarly, under the Criminal Justice Act we appoint
private lawyers to represent defendants. Again, there is
competition to get on that list, so you really get lawyers, by
and large, in my court who represented indigent defendants were
by and large more skillful in my experience than the privately
retained lawyers, some of whom were simply showboats.
That said, I think the system is definitely in need of
support, certainly at the State level. I second Larry
Thompson's call for having OJP target particular areas with
grants so that there can be demonstration projects that would
show the way.
Senator Kennedy. Thanks to all of you. You honor us with
your time and your testimony today.
Chairman Graham. Senator Whitehouse.
Senator Whitehouse. Thank you, Chairman.
And thank you very much to the panel, particularly Reverend
Risher. I would like to join my colleagues in expressing my
appreciation for your testimony here. I had the opportunity
nearly 3 years ago to visit Emanuel AME Methodist Church with
the Faith and Politics Institute. It was one of the most moving
experiences of my life. It was remarkable, and to meet with the
survivors a few months later here in Washington was impressive,
and I am so glad that you are keeping that tragedy alive in our
hearts because it should not be overlooked, and I appreciate
it.
Reverend Risher. Thank you, sir, for your words. And the
Emanuel Nine will be something that I will continue to talk
about their lives to let other people know that they did not
die in vain, and I thank you for your comments.
Senator Whitehouse. Do not ever stop.
Reverend Risher. Thank you.
Senator Whitehouse. Mr. Mukasey, I have some questions for
you, and I want to let you know right off the bat that this
goes back about 10 years, and so you will have full--I will
give you every chance to answer more fulsomely in written
answers, you know, questions for the record, so that if there
is anything that you do not recall now.
But the reason I wanted to ask you your questions is that I
view it, anyway, as a responsibility of the Attorney General to
fearlessly go where the evidence and the rule of law lead, and
to allow, particularly in investigative matters, to let the
evidence and the law be your guides. Now, given the
circumstances that surround the Department, the willingness of
an Attorney General to be independent where evidence leads to
the White House is of, I think, particular moment.
And that takes me back to the investigation into the
removal of nine U.S. Attorneys in 2006. That report was
concluded in 2008 on your watch as Attorney General. As you
will recall, it was a joint effort. Those do not happen all
that often in the Department, but this was a joint effort
between the Department of Justice Office of Inspector General
and the Department of Justice Office of Professional
Responsibility.
The investigation led both into White House files and into
Office of Legal Counsel files. As to the White House files, the
White House refused to cooperate and refused to provide access
to your OIG OPR investigators to close out their investigation.
The OLC refused to provide un-redacted documents to members of
their own Department.
The report that was issued in 2008 indicated that the
investigation had been, and I quote it here, ``hampered and
hindered'' and left with ``gaps'' as a result of the failure of
the White House and OLC to provide the necessary information to
the investigators.
Judge Mukasey. That was the OIG report?
Senator Whitehouse. Yes, OIG/OPR. It was both of them
together, as you may recall.
So here is my concern. You were the Attorney General at the
time. You could have readily instructed OLC: Knock it off,
guys, provide these folks the documents. And while you cannot
instruct the White House what to do, when the investigation
leads to the White House gates and the White House gates come
down, to me it is the Attorney General's responsibility, at
that point, to walk down to the White House and say, one of two
things is going to happen, we are going to get cooperation in
our investigation or we are going to have a resignation,
because the Department of Justice needs to follow the law and
the facts wherever, including into the files of the Department.
As you know, there is no executive privilege issue as
between the Department of Justice and the White House. That is
a separation of powers issue, and it keeps things from us but
it does not limit documents within the executive branch.
So, I would like to get, now, your recollection in a more
fulsome way, in a written fashion if you would like to
elaborate, why it is that you felt that when the Department of
Justice had an ongoing investigative matter that led to the
gates of the White House, it was okay for the White House to
say, no, we are not cooperating, and for the Department of
Justice to stand down, because I think that would be a lousy
precedent for now.
Judge Mukasey. This goes to the qualifications of Mr. Barr
to serve as Attorney General, does it?
Senator Whitehouse. To the extent that there is a concern
about whether he would be willing to do that, because we do not
want a replay of this. And if he is citing the Mukasey
precedent, I want to know more about the Mukasey precedent.
Judge Mukasey. I doubt that he is citing the Mukasey
precedent, number one.
Number two, my recollection of that, which is dim over 10
years----
Senator Whitehouse. Which is why you----
Judge Mukasey. Nonetheless, older people have a better
recollection of the distant past sometimes than they do of the
recent past, so I do remember it to some extent.
My recollection is that the investigation did not lead to
the gates of the White House. It involves the circumstances
under which nine U.S. Attorneys were terminated, and those
people were offered the opportunity to come back. They were
also offered apologies by me, and that is the way the matter
ended. That is my recollection.
Senator Whitehouse. Okay. Well, I would ask you to take a
look at the question for the record that I will propound to you
because that is different than what the OIG and OPR said at the
time, because they felt that they were hampered, hindered, and
left with gaps in their investigation, and it was White House
files that were at issue.
So my time is expired, but I hope we can settle this
question because I do think it creates a difficult precedent in
a world in which the Department of Justice may now have to ask
similarly tough questions that take it into White House files.
Judge Mukasey. I seriously doubt that one investigation and
how it was handled creates a precedent in any sense for
another, but I will answer your question.
Senator Whitehouse. Thank you.
Chairman Graham. Senator Grassley.
Senator Grassley. First of all, for the Reverend, I do not
understand how people can have so much hate that they do what
they do. That is what comes to my mind all the time when I hear
stories like yours. I remember it from the day it happened.
Thank you for bringing it to our attention.
Reverend Risher. Thank you, sir, for listening.
Senator Grassley. Mr. Canterbury, you have talked some
about the First Step Act. I want to go back to the Fraternal
Order of Police, who was very instrumental in helping get it
across the finish line. And obviously, as the Chairman of the
Committee at that time, I thank you for doing that. We
appreciate your strong leadership.
The First Step Act requires that the Justice Department and
the Attorney General implement a risk and needs assessment
system, allow nonviolent inmates to receive earned time credit
for participating in recidivism reduction programming, and
recalculate good time credit for all inmates.
Given Mr. Barr's past statements opposing criminal justice
reform, especially sentencing reform, do you believe that he
will be able to dutifully implement the system that the
Fraternal Order of Police worked so hard to get passed? To be
fair to Mr. Barr, yesterday he testified that he would
implement the law and not undermine it. Are you comfortable
with that commitment?
Mr. Canterbury. I think his past experience in following
the law speaks volumes to his ability to be able to take what
Congress sent to the President and the President signed and
implement the program. We have full confidence in that.
Senator Grassley. Now, adding to what Senator Durbin said
about the vast support that this legislation had from what I
would say is extreme right to extreme left and everything in
between--law enforcement, the judicial branch, victim rights
groups, civil rights groups, faith groups--in your opinion,
will Mr. Barr be able to work with these stakeholders to
effectively implement the First Step Act?
Mr. Canterbury. Yes, sir. We have full confidence that he
will be able to do that.
Senator Grassley. Now to General Mukasey and to Mr.
Thompson. I am not questioning Mr. Barr's truthfulness when I
ask you this question, but in the past Mr. Barr opposed our
efforts at criminal justice reform. Mr. Barr also had concerns
about the constitutionality of the False Claims Act and opposed
that law. Yesterday, Mr. Barr testified that he would implement
the First Step Act and had no problem with the False Claims
Act. We all know that the Attorney General of the United States
has a duty to enforce the laws in a fair and even manner, and,
of course, without personal bias.
General Mukasey, in your opinion, will Mr. Barr be able to
do that? Do you believe that Mr. Barr will be able to
faithfully implement and enforce the laws that he may not
personally agree with?
Judge Mukasey. I certainly think he will. His record shows
that he is--if he adheres to one thing, it is to the
requirements of the law. And I will tell you in my own case, I
was initially opposed to some part of the First Step Act. I
later became a supporter of it. So I am assuming that he will
have the same open mind, at least, the same open mind, that I
have.
Senator Grassley. Okay. And, Mr. Thompson, along the same
lines, your opinion on Mr. Barr's ability to enforce the laws
fairly, evenly, and without personal bias?
Mr. Thompson. Senator, as you know, I was a very strong
supporter of the First Step Act. If you look at what Attorney
General Barr did when he was Attorney General in the Bush
administration and his emphasis in the Weed and Seed program on
community collaboration, his admitted statements to Reverend
Joe Lowery, as I mentioned in my opening statement, about the
failure of prison, putting more people in prison, to help rid
our crime-infested neighborhoods, he understands the need to do
more than just lock people up. So I think he will faithfully
implement the First Step Act, both in the spirit and literally.
Senator Grassley. Also, do you, Mr. Thompson--since you
have worked with Mr. Barr so much, knowing him as you do, would
you say that he will be independent leader of the Justice
Department that we ought to expect? And--well, let me finish
this because I want General Mukasey also to speak to it. And
maybe these questions come from the fact that we recently had
an Attorney General that referred to himself as the ``wing
man'' for the President. So what is your opinion of Mr. Barr's
ability to be independent head of the Justice Department? Do
you have any doubt that he will be able to stand up to the
President? So, it is kind of the same question to both of you.
Judge Mukasey. I have not got any doubt at all. He has done
it in the past, number one. He is not anybody's wing man. And I
think he understands that if he ever so behaved, he would come
back to the Department to find a mound of resignations on his
desk. So I do not think he would ever do anything like that,
and he is not inclined to do it.
Senator Grassley. Mr. Thompson.
Mr. Thompson. I agree with General Mukasey. Bill Barr
understands the many policies, traditions of the Department of
Justice that have stood for a separation between the Department
and the White House on matters of criminal investigations,
decisions to indict. I do not think that--the men and women
that he has led over the past years in the Department of
Justice, I think he will understand their respect for these
traditions. And I think he will--he understands the nuances
that lead to why we have these policies and traditions, and I
think he will faithfully follow them and support them.
Senator Grassley. Yes. And, for Ms. Cary and Mr. Thompson,
I think I will kind of answer my first question. I think you
would say about Mr. Barr's fitness to be Attorney General in
the United States, but could you tell us some observations you
have had about him that leads you to believe he is the person
that you have worked with and then, in turn, to be a good
Attorney General?
Ms. Cary. The year that he was Attorney General, in 1992,
you may recall, started with President Bush throwing up on the
Japanese prime minister. It was at the beginning of a rough
year. As General Mukasey pointed out, there was the Talladega
prison riots. There was the crack epidemic that Senator Durbin
was talking about. General Barr yesterday was pointing out that
the violent crime rate had quintupled over the previous three
decades. Hurricane Andrew--you may not remember this, but
Hurricane Andrew hit south Florida particularly hard and
knocked out a tremendous amount of Federal law enforcement
resources down there. And there was great fear that it was
going to become sort of a lawless place, where drug dealers
would take control and the Coast Guard would not be able to
control things. And then there was also the Rodney King verdict
and the L.A. riots. So it was a very dangerous year in a lot of
ways.
And I remember going to a press conference we were going to
have in Richmond, I think. It was with the late great Jack
Kemp, who was Secretary of HUD at the time. And as the two
motorcades pulled in with the Attorney General and the
Secretary of HUD, into this public housing project that we were
going to talk about how to make public housing projects more
safe, right before we got there, there was some sort of gang
violence. And the law enforcement had come in and arrested a
whole bunch of people. And there was gunfire. And so, as we got
out of the cars, they came to Secretary Kemp and General Barr.
And they said, ``It is still a little dangerous here. There
could be some stray bullets. We have got two bulletproof vests
for the two of you. And why don't you put these on and head up
to the podium?''
And General Barr points at me and says, ``Well, what about
her?''
And the agent said, ``Oh, I am sorry, sir. We only have two
bulletproof vests.''
And he says, ``Okay. Well, Mary Kate, you take mine.''
And the agent said, ``No, no, no, sir. That is not going to
happen. You take the vest. You head to the podium with
Secretary Kemp.''
And he turns around to me, and he says, ``Well, this is
unacceptable. You get in the car, the armored limo, and just
keep your head down.''
And I thought at the time, ``Boy, that tells you volumes
about him,'' that he even noticed that I was standing there.
But, really, what was going on, the point of the story, is,
that it was a very dangerous place, and there were people who
lived there all their lives. And we were arriving in limos and
going to be able to leave, and they could not. And that, I
think, made a big impression on everybody involved, what
people's lives were like in this crazy year of how dangerous
things were, how bad the violent crime rate was. And all he
wanted to do was try to help some of these people who were in
these horrible situations. And I think that tells you volumes
about him and his motivations and the kinds of things he tried
to do as Attorney General. And, I think, I have no concerns
whatsoever about his enforcement of the First Step Act because
that is the kind of person he is.
Mr. Thompson. Senator, I have observed Bill Barr in
problem-solving situations. Yes, he will be the leader, but he
listens to people very carefully. He has an open mind. He is
respectful of different opinions. And he has a problem-solving
personality in the sense that everything is collaborative. And
I think he will be a terrific leader of the Department of
Justice, and I have no doubt about that.
Chairman Graham. Thank you. It is been a terrific panel.
Senator Klobuchar, then we will take a break. You all have been
going at it for 2 hours. We will take a 10-minute comfort break
after Senator Klobuchar. And we will plow through until we get
done. Thank you all for your patience.
Senator Klobuchar. All right. Thank you very much, Mr.
Chairman.
I am going to talk--start talking here about voting rights.
I asked a few questions of Mr. Barr about this, and it has been
such a problem across the country. I come from a State, as you
know, Mr. Johnson, with one of the highest voter turnouts, the
highest in the last election. And part of that is because we
have same-day registration, a bill that I have sponsored to
bring out nationally. And I have looked at the numbers that
show States that have that. Whether they are more red or more
blue, they always are in the top group for highest voter
turnout. It makes a huge difference to allow people to vote
either with an ID or with a neighbor or with some other forms
of identification. And so I am very concerned about the Supreme
Court's ruling, of course, in the Shelby case.
And yesterday I asked Mr. Barr about the State election
officials in North Carolina who contacted the Justice
Department to express concerns about the integrity of the
elections 9 months before the election and about allegations of
voter suppression. So he was not there, of course, at the time,
but I am just wondering how you think the Department of Justice
responded, how they should have responded when they first heard
from those State officials?
Mr. Johnson. From the NAACP's perspective, we are extremely
concerned with the lack of responsiveness from the Department
of Justice. Ever since the Shelby v. Holder case was decided,
we knew that Section 2 would be the vehicle to protect voters.
The lack of the current administration use of Section 2 was
problematic. Mr. Barr's commending AG Sessions' tenure as AG is
also concerning. His lack of clarity on how he will use his
Justice Department to ensure all Americans can cast a ballot
free of vote suppression or intimidation leaves a huge question
mark for us. Any individual who serves as AG should have a
primary consideration, the protection of the rights to vote of
all citizens. It is not a partisan issue. It should not be seen
as a partisan issue. It should be something that is above
partisanship.
I am a resident of Mississippi. And we have seen the dog-
whistle politics for a very long time. In fact, if you look at
the history of voting in the State of Mississippi, some of the
languages that were used during the period called Redemption
and after 1865 is being used today. Some of the tactics that
was used in 1870 and 1890 is being used today. So we need a
Justice Department that can rise above partisanship and to
appreciate that in order for our democracy to truly work, all
citizens should be afforded free and unfettered access to the
ballot box.
Senator Klobuchar. Very good. Could not have said it
better. Thank you.
Mr. Mukasey, you and I worked together when you were
Attorney General. And, as you know, we had an issue in
Minnesota, and the U.S. Attorney left. And you worked with me
to get a replacement, which I truly appreciated. And we put
someone good in place in the interim, and the Office continues
to be a very strong Office. So, thank you for that.
Could you just briefly talk about when you were Attorney
General. Did you ever say ``No'' to the White House?
Judge Mukasey. Yes.
Senator Klobuchar. Okay. Can you remember some of the
instances where you----
Judge Mukasey. I remember one----
Senator Klobuchar [continuing]. If some of them were
public?
Judge Mukasey. I remember one in particular. And I cannot--
I mean, I do not think I can discuss it here.
Senator Klobuchar. Yes.
Judge Mukasey. But it involved a position that the
Government would take in litigation. And the White House was of
a particular view, and the Department was of a particular view.
And we prevailed.
Senator Klobuchar. So, you think that is an important--but
I had a discussion with Mr. Barr yesterday, just this concept
of yes, you are the President's lawyer and that you are giving
advice, but you are also the people's lawyer. And there are
some times where those may conflict. Do you want to just expand
on that?
Judge Mukasey. Yes. I mean, when it comes to a pure legal
position and the White House has taken a policy position that
affects that legal position, yes, it gets very delicate. And it
did in the one instance that I mentioned. And the Solicitor was
of a particular view and was told, basically, ``You do what you
think the proper view is, and let me take care of the
politics.''
Senator Klobuchar. Very good. All right. Thank you.
Mr. Morial, we--there has been discussion, bipartisan
discussion, up here about the First Step Act. And could you
just talk about some of the steps that we are going to need to
take, that the Attorney General will need to take, immediately
to implement it?
Mr. Morial. Yes.
Senator Klobuchar. Because you can put all of the laws you
want on the books, but if you do not----
Mr. Morial. Certainly. And let me just reaffirm my thanks
to you and every Member of the Committee who supported that. It
was a very, very long and difficult effort to arrive where we
arrived. We supported it early and continue to push for its
improvement, but it is the First Step Act.
The important, I think, step for the Attorney General is to
get this Oversight Committee in place with the right people on
it, and I think the most important thing that is going to be in
the Attorney General's bailiwick is, one, organizing the U.S.
Attorneys who are going to be responsive to those who are going
to go back to the court where they were sentenced and request
resentencing because the resentencing, for example, for the
crack cocaine disparity, is not automatic. It is going to
require a Public Defender service. It is going to require
private lawyers. And my hope is that the United States
Attorneys' Offices are not going to get in the way, not going
to slow down the process, are going to move with speed and
dispatch to facilitate and work with, if you will, criminal
defense lawyers to identify those who might be eligible and get
the Act in implementation.
But I also think that the aspect of it, which involves the
work of the Office of Justice, the Bureau of Prisons, which is
the--and this was a great concern under the Act, whether the
Bureau of Prisons was going to have the enthusiasm and the
resources, Senator, to execute the ability of people to earn
more ``good'' time, which requires them to participate and
develop release plans and take steps toward preparing
themselves for release. That is an entire effort. I think you
authorized some $350 million in order to do that. That has got
to be implemented. That has got to be executed. And we do not
need any foot dragging in order to do that. So, I think, if the
Committee continues to have oversight over the work on
resentencing and the work on the execution of the pre-release
program, and then the third element of it will certainly be--
and this was a great concern of ours--I think the nominee
should be asked to rescind the Sessions guidance that--wherein
he directed U.S. Attorneys to seek maximum sentences or the
maximum prosecution. So, if the nominee is going to be true to,
``I will implement the First Step Act,'' then a good faith
effort by him would be to rescind that guidance, right, to
restore the discretion of the United States Attorneys when it
comes to charging decisions. So, there is a lot of work to be
done and I would urge the Committee to maintain its oversight
role in ensuring that these things are executed.
Senator Klobuchar. Okay. Thank you.
And I am out of time, but I wanted to thank you, Reverend,
for coming forward. And I will ask you on the record, not now,
some questions about our bill that we have on stalking, because
I know you have been supportive of that, and on the boyfriend
loophole. So thank you.
And, Mr. Canterbury, we want to move forward on that cops
bill that we have with the training and the money for the
officers. And thank you for your support and work on that.
Thank you.
Chairman Graham. Thank you. We will take a 10-minute recess
to give you a comfort break. I am going to have to go do
something else. And if Senator Blackburn would be kind enough
to chair the hearing until we are finished, I would appreciate
it. And it has been a great panel. Thank you, all, for coming--
very, very much. So, 10-minute recess.
[Whereupon the Committee was recessed and reconvened.]
Senator Blackburn [presiding]. The Committee will return to
order.
Senator Cornyn, you are recognized.
Senator Cornyn. Thank you, Madam Chairman.
I was just complimenting Senator Blackburn on her rapid
ascension to the Chairman of the Committee. I have been on the
Committee for 16 years, and I haven't quite made it there. So,
congratulations.
Well, thank you all for coming and sharing your views. I
cannot help but comment on the stark differences that we are
hearing from the various witnesses about this particular
nominee. He is either the most-qualified person you could ever
find, or he is the least-qualified person, and there does not
seem to be much room in between.
But let me ask some specific questions. First, I want to
talk a second about criminal justice reform because it strikes
me that of all the topics that we have dealt with here
recently, that is one of the areas that brings us together. And
I will just reflect, Mr. Johnson, I remember being in Dallas,
Texas, maybe 10, 12 years ago. I was visiting with a number of
African-American pastors, and I asked them, I said, What is the
biggest problem in your congregation?
And they said, well, it is formerly incarcerated men who
have a felony on their record, and it is they cannot find a
job, and they cannot find a place to live. And that has sort of
always haunted me a little bit.
But in light of some of the great work that has been done
at the State level on prison reform--and I would have to say I
am proud of the efforts made in Texas and elsewhere to try to
provide people opportunities when they are incarcerated, those
who are willing to accept responsibility for their own
rehabilitation--that we have had some remarkable successes in
the people who have taken advantage of the opportunity to turn
their lives around.
And I think our view as a Government and as a people has
changed significantly. Mr. Barr talked about 1992 and violent
crime back then, and there was a different attitude. And I
think we have learned from our experience.
But I want to go, General Mukasey, one of the things that
you testified to, I think, in a previous Congress when we were
talking about criminal justice reform, you said that really the
test, the ultimate test for the success of criminal justice
reform is the crime rate. I think I am quoting you correctly.
Could you explain that? Because there are a lot of people
who want to focus on other things, like incarceration rates and
other issues, but the crime rate, it strikes me--public
safety--strikes me as the most important one.
Judge Mukasey. Yes. I think that is--that is the ultimate
test for this, the statute that has just been passed and for
future statutes. What does it do to the crime rate?
The criminal justice system is there in substantial part to
protect the public. If it is doing that and the crime rate is
dropping, then bravo to the experience. And to a certain
extent, it is going to be an experiment. We will see how people
do when they get out. We will see how much money is saved and
what it can be directed toward by way of prevention, and
hopefully, our situation will improve.
Senator Cornyn. Well, fortunately, in the criminal justice
field, though, we have actually used the States as the
laboratories of democracy, and we tried this out before we have
implemented at the national level. And I think we have
benefited from those State-based experiences.
In my State, for example, we have reduced not only the
crime rate, but the recidivism rate, and we have closed plans
to build new prisons to incarcerate more people. So it really
strikes me as something that it is one of those unusual
scenarios where, basically, we were able to come together,
people of dramatically different ideology and orientation, and
come together and do something very positive for the country.
And I am--we are going to keep an eye on the crime rate, to me
is the litmus test of the success of what we tried to do.
Professor Turley, I wanted to just, first of all,
compliment you on your article that you wrote in The Hill and
just preface that--the title, of course, was, ``Witch Hunt or
Mole Hunt? Times Bombshell Blows Up All Theories.''
I have been extraordinarily troubled, frankly, by the
politicalization of the Department of Justice, including the
FBI, and I think you pretty much--in this polarized world we
are living in, you talk about cognitive bias. And depending on
the lens you are looking through, you can see a narrative, you
can build a narrative that tells your story.
Would you take a minute to sort of explain the thesis of
your article and the views you express there?
Professor Turley. Thank you, Senator.
What I thought was most interesting about The New York
Times article was actually not the point of the article, which
was that the President may have been investigated under the
suspicion that he could be an agent of a foreign power. But
what came out to me from the article was an insight into what
and how the FBI was looking at this early in the Trump
administration, and we also have an insight of how the Trump
administration was viewing what the FBI was doing. And this
gets to the issue of cognitive bias.
That it is a well-known concept that you can look at a
problem with a bias where you see things that reaffirm your
suspicion. But in this case, the FBI moved early on with an
investigation that the White House was aware of. That fulfilled
the White House's own bias that this was a ``deep state''
conspiracy, and the White House pushed back.
And when the White House pushed back, it fulfilled the
cognitive bias of the FBI that they are trying to hide
something. And if you take a look at the timeline, you see this
action and reaction occurring where each side is reaffirmed by
the actions of the other side.
So what the column raises is a distinct possibility that we
might not have Russian collusion or a ``deep state''
conspiracy. That we may have two sides that are fulfilling each
other's narrative, and we have gone so far down this road that
it is impossible now to stop and say, well, what if neither of
these things actually did exist?
In economics, it is called ``pathway dependence,'' that you
can invest so much into a single path that you can no longer
break from it. And so what the column is suggesting is that
perhaps we can actually use these stories and take a step back.
And instead of assuming the worst motivations by both sides,
look at this as whether both sides were trying to do what they
thought was right or reacting to what they thought was correct,
but they might have both been wrong.
Senator Cornyn. Madam Chairman, my time is up. Could I take
one more minute?
Senator Blackburn. Without objection.
Senator Cornyn. Yesterday, I was asking Mr. Barr about Rod
Rosenstein's memo that is entitled, ``Restoring Public
Confidence in the FBI.'' And to me, one of the most encouraging
things about Mr. Barr's appointment is, I think he is exactly
the kind of person who could do that, having done this 27 years
ago and being willing to do it again for no other reason than
his desire to help restore confidence in the Department of
Justice and the FBI.
So, but if you go back even further, back when James Comey
was--and the FBI were investigating Hillary Clinton's email
server, and he took the unprecedented step of having a press
conference on July the 7th, 2016, at which he essentially
exonerated Ms. Clinton while detailing all the derogatory
information in the investigation. And then later on had to come
back because of that press conference when the Weiner laptop
was identified and say, hey, we found some more emails.
The idea that the FBI and the Department of Justice would
become so tangled up in an election and potentially influence
an election is really unprecedented in our country and very
dangerous, from my perspective. And then, of course, when Mr.
Comey was fired by the President, then folks on the left
thought he was St. James and after he had been the devil, I
guess, previously when he was investigating Ms. Clinton.
So I do think there is some of that cognitive bias going on
here, and we need to identify it and maybe step back from it
and learn from it.
Thank you, Madam Chairman.
Senator Blackburn. Senator Hirono.
Senator Hirono. Thank you, Madam Chair.
Reverend Risher, I, too, have had the opportunity to meet
with some of the survivors of that tragic day, and so thank you
very much for your heartfelt reminder of the work that remains
for us to do.
Professor Kinkopf, you have written a lot about the unitary
executive, and that is something that Mr. Barr subscribes to.
So I found it really interesting what you mentioned today
because there were a lot of questions from so many of us,
seeking reassurances from Mr. Barr that he would not interfere
with the Mueller investigation in any way, shape, or form.
And today, though, you said those assurances are irrelevant
because under the unitary executive theory that if Mr. Barr
were asked can the President fire Mr. Mueller, Mr. Barr would
say yes. So there goes the entire investigation.
I found that to be a really interesting statement on your
part. So that means that let us say that if the President does
fire Mueller, and one would say that under a normal
circumstance that kind of firing could be part and parcel of an
obstruction of justice kind of investigation. But if the entire
underlying investigation goes away because the investigator is
fired, then where are we?
So that is very interesting as we sought to see the kind of
reassurances that would enable us to feel that the Mueller
investigation is, in fact, going to be able to proceed.
So you talked a little bit about what the impact of the
unitary executive--and I do--that theory--and I do understand
that there is a range. It is not--you know, there is a
continuum there. So I just want to ask, under the unitary
executive theory, can a President commit obstruction of justice
with impunity?
Professor Kinkopf. So I will answer based on the memo
that----
Senator Hirono. Yes.
Mr. Kinkopf. Mr. Barr wrote last summer, because, as you
say, there is a range, and so the answer would be different,
depending on where you are on the range.
The Barr memo allows that there may be circumstances where
a President can be understood to have committed obstruction of
justice. Now that is different from saying the President can be
charged with obstruction of justice, and in fact, Mr. Barr
yesterday during his testimony said he sees no reason to
deviate from the Department's policy that a sitting President
cannot be indicted.
But even within that construct that a President can commit
obstruction of justice, it is really difficult to see on his
theory how that would end up happening, because he says when
the President exercises a legitimate Executive power, that that
cannot provide the basis for an obstruction of justice charge.
And therefore, if he exercises his authority to fire someone--
James Comey is the discussion in the memo--then that cannot be
the basis of an obstruction of justice charge.
If President Trump then used his authority to fire Mueller,
that, by extension, would not be something that could serve as
the basis of an obstruction of justice charge on the theory set
forth in the memo. And I think he should be, at least, asked in
follow-up questions, whether or not he would apply the logic of
the memo to that situation, and he should be asked if that were
to transpire, would he resign?
Because I think yesterday, he indicated that that would be
an abuse of power, and that is something an Attorney General
should resign if the Attorney General sees.
Senator Hirono. I think you have given us a further line of
questions to submit to Mr. Barr.
Regarding the Voting Rights Act, so this is for Mr. Johnson
and Mr. Morial, we know that after the Shelby County decision,
there were many, many States that passed all kinds of
legislation that would be considered by a lot of us as voter
suppression.
And yesterday, Mr. Barr testified that he would vigorously
enforce the Voting Rights Act, the Section 2 of the Voting
Rights Act. For the two of you, since there has not been a
single Section 2 proceeding brought by the Justice Department,
what specifically could Mr. Barr--what would you want Mr. Barr
to do to vigorously enforce the Voting Rights Act, as he
testified yesterday?
Mr. Morial. I think, number one, that he should review the
decision by the Justice Department to switch sides in these two
cases. One has been resolved.
Number two, he should ask the Voting Section of the Civil
Rights Division to present to him all instances where the
Justice Department has been asked to initiate Section 2 claims.
Number three, I believe that he should investigate,
evaluate, and review those States that have passed voter
suppression law to determine whether, in fact, they are
discriminatory. And in fact, if they are discriminatory, to
initiate a Section 2 claim.
The issue is, is for the Attorney General and the many
competent lawyers in the Civil Rights Division at Justice to do
their job without political interference, to make
recommendations to him on what steps should be taken. A lot of
stuff has been put into the deep freeze in the Sessions
administration because he was just not interested at all in
enforcing the Voting Rights Act because he disagreed with the
Voting Rights Act and had had a long career of disagreeing with
the Voting Rights Act.
Well, the Attorney General does not have an option to pick
or choose which laws they want to enforce. They must enforce
all laws that are vigorous--vigorously because it is your job,
as the legislative branch, to pass those laws.
So, I think, that there are a number of things that the
Attorney General can do, and most importantly, to publicly
state that he will not follow the policy of Attorney General
Sessions when it comes to the entire realm of civil rights. It
is important for him to be on the record as forceful as
possible, but also to commit to take the necessary steps to
ensure that Section 2 is vigorously enforced and also to look
at those instances where the Justice Department has either
switched sides----
Senator Hirono. Yes.
Mr. Morial. Or refused to take a position. The case I
mentioned earlier in my testimony, the Chisom case, which was a
judicial reapportionment case in which I was a plaintiff. The
case was brought in 1985. It was decided by the Supreme Court
in 1991--was a case where the Justice Department sided with us
during the Reagan administration.
And so the consistency of the Justice Department in siding,
taking an affirmative stand in voting rights cases in support
of those who have been aggrieved is something that until the
Sessions administration was a bipartisan matter. And I think
that this nominee should be asked whether he is going to
restore that emphasis and that integrity to the enforcement of
the Voting Rights Act.
Senator Hirono. Madam Chair, I would like to ask Mr.
Johnson to respond.
Mr. Johnson. I agree with my colleague, but I also think he
should intervene in current litigation. There are several
ongoing voting rights cases that are taking place across the
country.
Second, he should work to fix the issue around Section 5.
The House Special Committee on the Voting Rights Act will be
doing hearings across the country, from my understanding, and
if he becomes the Attorney General, he should seek to also
support a fix in terms of Section 5.
And then, third, review formerly covered jurisdictions to
see if, in fact, they have made changes in their policies,
practices, or procedures and if those changes were, in fact,
vote suppression methods so we can document the record to show
that without a proactive Justice Department and law,
jurisdictions will revert back to past practices of
discriminatory actions.
Senator Hirono. Thank you.
Senator Blackburn. I recognize myself for questions at this
time.
And Mr. Turley, I would like to come to you first. You
spoke last December at the Press Club about privacy rights and
security in a world with changing technology and the rising use
of artificial intelligence and facial recognition technology.
And the challenges that that is going to pose for the Justice
Department, I think we all realize they are going to be there
and will have to be confronted.
And no clear answers have emerged at this point as to who
owns the virtual you, you and your presence online. And more
and more now, on a daily basis we are hearing from consumers
who are wanting to make certain that there are privacy
protections in a digital world and in that virtual space and
that they are for everybody and that everybody plays for the
rules.
So Mr. Barr is going to have to address these issues
because it is going to require greater enforcement from the
Attorney General. And I would like to hear from you on the role
that you see the Department of Justice under Mr. Barr's
leadership playing as we deal with companies like Twitter and
Facebook and some of these edge providers in the technology
space.
Professor Turley. Thank you, Senator.
Of those emerging areas, facial recognition technology is
probably the fastest moving and the one that has to be
addressed the soonest. I have already spoken with people at
Justice Department and to see if there is any way that the
privacy community and the Government and private industry could
find common ground here.
I think that for privacy advocates, we can no longer just
simply say that all facial recognition technology is an evil,
and we are not going to work with it. Part of the reason is
that the Fourth Amendment controls the Government. It does not
control private businesses.
And this market has progressed to the point that you are
not going to get that cat to walk backward. I mean, this is a--
this is an emerging market. The Chinese have put a huge amount
of investment in it. If you just land at Shanghai, you will see
what facial technology is going to look like across--around the
world.
So the question is, how do we then marry the privacy values
that we have with the legitimate security interests of the
Government? And the answer is, there is a couple of things that
we can do. One is, that most of this technology is going to
require a data bank to be used effectively, including facial
recognition data.
We can act proactively to try to create privacy protection
for the access of that information, how long that information
can be stored, for what reasons it can be used. We need to
really get ahead of this. And frankly, Bill Barr is a perfect
person to do this because not only does he have really the law
enforcement chops in terms of understanding how technology is
used, but he has spent a lot of time in private business at the
highest levels.
And so I cannot imagine anyone better on this issue, quite
frankly, to tackle it.
Senator Blackburn. Mr. Thompson, let me come to you with
another technology question because last fall DOJ met with some
of our States' Attorneys General to talk about the frustrations
with Google and Amazon and some of these edge providers and
their failure to protect consumer data and also their anti-
competitive behavior.
And one of the things that came out of this was how Google
prioritizes search results--theirs--to give them a competitive
advantage over Yelp. So we know that these challenges are only
going to be resolved if there is a multifaceted strategy that
includes a partnership with our States' Attorneys General and
if there is enforcement by the Antitrust Division and Consumer
Protection Branch.
So, with that in mind, how would you advise Mr. Barr or how
do you see him moving forward at DOJ to deal with big tech and
these issues that they are really confronting consumers every
day?
Mr. Thompson. What I see with respect to your question,
Senator, is that this is something, number one, that I really
do not know a lot about this. But I think the Attorney General
nominee, if he is selected, would come in and review with
career Department of Justice lawyers and other professionals in
the Department on the issue, review the issues, listen to them
carefully. This is what he has done on other issues of import.
But more importantly to your question is that, I think, he
has great experience in the past of working with joint task
forces, joint efforts with State and local authorities,
especially the State AGs, and he knows how to do this. He has
done it successfully in the past, and I think he would be able
to work with our State law enforcement colleagues and get at
the answers to--that are raised in your question. Very
important, very important matters.
Senator Blackburn. In the minute that I have left and
before I yield--Mr. Blumenthal will be next--I just want to
thank each of you for being here.
And Reverend Risher, I want to thank you for your
testimony. And in the--I came to the Senate from the House, and
we have passed some of the red flag legislation that Senator
Graham had mentioned that he is working on here in the Senate.
We look forward to some of those steps being taken, and I know
that is something that is important to you.
And Mr. Canterbury, we always thank you for the work you do
for the thin blue line.
Mr. Canterbury. Thank you.
Senator Blackburn. And the good work that you all are doing
there.
My time has expired.
Senator Harris, you were actually next. You are recognized.
Senator Harris. Thank you. I appreciate that.
And thank you, Senator Blumenthal.
Mr. Morial, as we have heard, there has been a lot of
discussion about this nominee and the book that was entitled,
``The Case for More Incarceration,'' for which Mr. Barr wrote
the foreword. There has been concern about his opposition to
efforts to lower mandatory minimums.
And so my question to you is based on your experience as
the mayor of New Orleans. During the time you were mayor, you
saw a 60 percent reduction in violent crime. And as General
Mukasey has talked about and others, one measure of the
effectiveness of criminal justice policies is a reduction in
crime.
Mr. Morial. Right.
Senator Harris. So can you talk a bit about what it is that
as mayor you did and perhaps even best practices around the
country that have led to a reduction in crime?
Mr. Morial. Well, thank you very much for your question,
and it was a powerful moment for our community when we changed
the landscape of public safety. And I might add, we embarked on
a plan that was comprehensive in nature. There was a law
enforcement component to it, but there was also a human
services and youth development component to it. And I set aside
the debate between the two and said that we needed to do both.
So our law enforcement component was a comprehensive reform
of what was at that time a very broken New Orleans Police
Department. And that comprehensive reform included weeding out
corruption, dealing with a very brutal police force. It
involved discipline and firing and remaking of how we
recruited, how we trained, how we paid, how we deployed, how we
used technology. It was broad-based. It was highly successful.
We did not have the problems whatsoever because we also put
our foot down and said we were going to have responsible and
constitutional policing. So it is important in the context of
the Justice Department--and when I took office, there was a
Justice Department investigation of the New Orleans Police
Department. And instead of fighting the investigation, instead
of trying to delay the investigation, I worked with the Justice
Department and presented my own far-reaching, far-ranging plan,
which, at that time, went farther--we were prepared to go
farther on a proactive basis than any Department at that time
had gone under a consent decree.
That is number one. But number two, and this is part of the
purview, because Justice, in addition to its law enforcement
responsibility, runs mentoring programs, programs funded by the
Office of Justice Programs. In the old days, Weed and Seed.
We also deployed and made full utilization of all of those
initiatives, too, to invest in youth development, to expand
recreation, to expand after school programs, to expand youth
summer jobs. It was not just law enforcement. It was not just
human services. It was a combination of the two. So I think it
is important to understand that Justice has law enforcement
responsibilities, but also Justice has responsibilities with
respect to investing in a community, investing in youth.
I would point this out, and I think this is important. At
the time, and this was during the Clinton administration, the
Clinton administration worked cooperatively with us both to
help us pursue violent crime through gun prosecutions and drug
prosecutions, but also invested through Weed and Seed and
Office of Justice Programs. Also at that time, you had the
Community Oriented Policing program, which provided us with
additional resources for police technology.
So the lesson to be learned, and I would say this, the
consent decrees that are out there--and this is misunderstood
by people. A consent decree is, by its very definition, a
voluntary agreement between a city and its police department
and the Justice Department. And most of those consent decrees
that are entered into have been entered into in lieu of
litigation that the Department had the right to do.
So the idea that pursuing consent decrees is, in effect, a
voluntary collaboration. And I think General Sessions was
against consent decrees but offered nothing in exchange,
offered no other strategy in exchange. ``I am just against
consent decrees because I think that they negatively affect
police morale,'' but did not offer another approach.
We need this nominee to indicate that he is going to be
committed to constitutional policing, committed to public
safety. But understand that public safety, we have learned, is
not just crack-down law enforcement. It is something much more
comprehensive. It is something much more proactive.
Yes, you have got to prosecute violent offenders, no doubt.
But you have also got to ensure that there are reentry programs
so that when people come out of jail, they are not apt to
repeat. And that is part of, I think, a sensible, smart on
crime initiative.
I hope that helps.
Senator Harris. And, as a follow-up to your point, some of
the best and most innovative initiatives we have seen in the
last few--in a couple of decades on criminal justice policy
have been the result of the U.S. Department of Justice funding
innovation in a way that supports local law enforcement, local
prosecutors, and local community groups to create the kind of
collaboration that you are talking about.
Mr. Morial. There used to be a Local Law Enforcement Block
Grant Program----
Senator Harris. Right.
Mr. Morial. That provided money, which allowed you, because
State--city governments are strapped always for resources, that
created a way for you to invest in some innovation, some
collaboration, some differential sorts of things. And I think
Justice can play a proactive, smart-on-crime role in helping
make our communities safer.
Senator Harris. Thank you. Mr. Johnson, you have testified
about your concern about the nominee's statements that have
been made in the past about the fact that there is not
statistical evidence of racism in the criminal justice system.
He did mention during his testimony yesterday and acknowledged
the disparities between crack and powder cocaine enforcement,
but did not acknowledge or mention any other of the disparities
that we have seen in the criminal justice system, such as
arrest rates that relate to a variety of crimes, but, in
particular, drug crimes, the disparities based on race in terms
of who gets what amount of bail in the criminal justice system,
and, of course, incarceration rates, which there are huge
distinctions based on race in terms of the application of
sentences. So if he is confirmed, what do you believe will be
the ramifications or--of his failure to acknowledge that, and
what do you--what would you recommend he do if he is confirmed
to acknowledge and to be informed about these disparities?
Mr. Johnson. An individual who serves as Attorney General
of this Nation must recognize the long legacy of race
disparity. And as AG, I would hope that he would really look
into the credible research, and it would obvious that in the
criminal justice system there is a huge disparity. Some of that
could be accounted for based on income, but much of it is
accounted for based on the racial makeup of juries. It could be
accounted for selective prosecution. It could be accounted for
as it relates to a myriad of things.
And as the Attorney General, I would hope he would factor
in that race is a problem. We are far from a post-racial
society, and we must attack problems with a racial lens because
there is very little in our criminal justice system that is
race neutral.
Senator Harris. And just one more question, Madam Chair. He
did--I requested that if--within a period of time, if he--if he
is confirmed, that he would meet with civil rights groups to
understand the ramifications of any policies. He agreed to do
that within the first 120 days, if confirmed. I think that we
will all expect that he will do that, and I look forward to
hearing about the results of those meetings. And thank you.
Mr. Johnson. Thank you.
Senator Blackburn. Senator Cruz.
Senator Cruz. Thank you, Madam Chairman. Let me say thank
you to each of the distinguished witnesses for being here, for
being part of this hearing. I appreciate your testimony and
wisdom and judgment.
Judge Mukasey, let me--let me start with you. You have
served as a Federal judge, you have served as U.S. Attorney
General, as has Mr. Barr, and you have built a long and
distinguished career of public service. Can you share, for this
Committee, in your judgment, the importance of rule of law and
the importance of having an Attorney General who is faithful to
enforcing the law and Constitution regardless of party,
regardless of partisan interest?
Judge Mukasey. It is really the only guarantee that we have
because this country is defined by and is constituted by a law,
the Constitution. It is not based on land. It is not based on
blood. It is based on the law. It all started with a law. And
that is what we have built the society on, the notion that you
can have a society in which--that operates fairly, in which
neutral principles neutrally applied allow people to reach
their maximum potential. If that is ever abandoned, if it is
deviated from, if it is ever perceived to be deviated from,
then we are lost. Then we have no--nothing to define us because
we are defined by a law.
Senator Cruz. Now, you have testified today that you know
that Mr. Barr is a, quote, supreme--``superbly qualified
nominee, that he has good judgment, and just importantly, that
he has the will to exercise that judgment despite pressure from
any source.'' Can you share with the Committee what in your
professional or personal experience gives you confidence that
Mr. Barr will once again well and ably carry out the
responsibility of Attorney General of the United States?
Judge Mukasey. Well, as I mentioned, he has had a past
history of doing that when he served as Attorney General,
notwithstanding that a desired--it was a desired result from
the White House, and he kind of deflected it and, as it were,
laughed it off. He is somebody who has testified here that--in
view of the fact that most of his career is the rearview
mirror. He does not really have to concern himself with the
possible negative consequences of resisting pressure from an
administration. So that is an additional--that is an additional
guarantee.
But I think the person himself and who he has been over the
years consistently really speaks to that, and it is not just a
question of his having nothing to lose. I think that is the way
he is constituted. As Professor Turley said, he is a ``law
nerd,'' meaning he is devoted in a--in a way that very few
people are to what defines this country, and that is what he
enjoys. That is his occupation and his preoccupation. And that
is, I think, an excellent guarantee for the way he is going to
approach the job.
Senator Cruz. Well, this Committee, in particular, I think
you will find no criticism for being a law nerd. We tend to
attract more than a few of them.
Mr. Thompson, you, likewise, have a long, distinguished,
honorable career marred only by briefing being my boss at the
Department of Justice. And I apologize for all of my errant
mistakes since then--that time. Let me ask you the same
question I asked Judge Mukasey, which is, in your professional
and personal career and interactions with Mr. Barr, what gives
you confidence that he will once again ably carry out the role
of Attorney General?
Mr. Thompson. Thank you, Senator, and I am very proud to
have you as one of my colleagues and former alums from the
Deputy Attorney General's Office. You have certainly acquitted
yourself well. Bill Barr has a long history in the Department
of Justice as I said in my opening statement. He has a great
love for the Department. I think that may be one of the reasons
he wants to return to public service. He has great fidelity to
the Department.
But in addition to some of the sort of sterile
constitutional questions that we have been discussing this
morning, important but still sterile in my view, he understands
the traditions of the Department of Justice. He respects the
traditions of the Department of Justice. He knows the impact
that his decisions will have on the men and women who are in
the Department, who are in the investigative agencies.
And there are reasons for these policies. There are good
reasons for these traditions, not the least important of which
is public perception, that justice in this country,
investigative decisions in this country are carried out fairly,
without fear or favor of what your status is in society, and,
most importantly, without political considerations. He
understands this, and I think this makes him superbly qualified
to be, again, the Attorney General of the United States.
Senator Cruz. Thank you. Ms. Cary, you have worked with Mr.
Barr some 2 decades. One of the things you testified about was
Mr. Barr's busy schedule, long travel hours, and yet in the
midst of it all, juggling to find time to be a husband and a
dad to his three daughters. As the father of daughters myself,
I know how difficult that can be with public life. Can you
share with the Committee some of what--just what you saw
firsthand about how he managed to carry out his
responsibilities and still be there for his daughters?
Ms. Cary. Yes, he was a tremendous father, as we saw
yesterday, and a grandfather. And as I said in my testimony,
the fact that all three of his daughters went into the law is
huge. My husband is hoping that our daughters do not go into
the law because he thinks it is becoming an increasingly
difficult profession.
But to your question about his demeanor and the way he
conducts himself, which, I think, is an example to his
daughters--we were in Houston and we were there for some
events. And as he was hearing from all these victims of crime
and people talking about how high the violent crime had gotten,
can he please do something to help, he spontaneously turned
around to me and said, what do you say we stop by the Harris
County Jail? And it was not on the--on the agenda at all. For
security reasons, you would never tip that the Attorney General
was going to a prison. And the FBI basically kind of rang the
doorbell over at the prison and said, ``We're here,'' and did
an unannounced visit to the prison.
And the Attorney General--the prisoners did not know who he
was. Obviously, we did not announce it. He went around asking
these guys what their lives were like, what did they do get in
here, what is for lunch today, where do you exercise. And as
much of a law nerd as he is, this was a very compassionate side
of him. He was not showboating. He--there was no press
involved. And to me, it showed the way he could sort of
shoehorn in a quick visit so he could back and see his family,
but yet learn about what people's lives were like, see the
impact, not just of the violent crime on the victims, but also
on proposed reforms on the people who were actually in the
prisons.
And I would be willing to bet there are not a lot of
Attorneys General, present company probably excepted, who have
been inside a cell block like that on an unannounced thing so
that he could get back to his family, but also continue to
learn the impact of the policies in a very real way.
Senator Cruz. Thank you for sharing that wonderful story.
And I will say his grandson, Liam, has become an internet
sensation----
Ms. Cary. Oh, he stole the show.
Senator Cruz [continuing]. Not seen since John Roberts'
son, Jack, did Spiderman at his announcement, and then, he,
too, had a moment of glory.
Ms. Cary. Right.
Senator Cruz. Thank you to each of you.
Senator Blackburn. Senator Blumenthal.
Senator Blumenthal. Thank you, Madam Chairwoman. Thank you
to every one of you, and thank you for all of your written
testimony which I will review. We have only 7 minutes, and as a
matter of fact, we are in the middle of a vote right now, so I
am going to be quick with a number of you.
First of all, Reverend Risher, thank you for being here
today telling your story so powerfully and eloquently, and
making sure we understand that your mother and your two cousins
would be alive if that shooter could not get his hands on a
gun.
Reverend Risher. Thank you.
Senator Blumenthal. A dangerous person with a gun. And I
assume that you would support the legislation that has been
introduced to improve the background check system. As you
probably--I am sure you know, that shooter was able to take
advantage of a loophole----
Reverend Risher. Yes.
Senator Blumenthal [continuing]. In the current laws. But
more broadly, Senator Graham and I have proposed a bipartisan
measure to take guns away from people who are deemed to be
dangerous by a court after due process, and thereby keep guns
out of the hands of criminals and other dangerous people. I
hope that you can lend your voice and your face to supporting
that legislation.
Reverend Risher. I would support that legislation, sir,
yes.
Senator Blumenthal. Thank you very much.
Reverend Risher. Thank you.
Senator Blumenthal. Professor Turley, you and I are in
agreement that the President can be indicted. I think we are in
agreement----
Professor Turley. Yes.
Senator Blumenthal [continuing]. While in office even if
the trial has to be postponed. I articulated that position to
Mr. Barr yesterday and asked him to agree with me, and he would
not. You implied this morning in your testimony that he did
agree with it. Do you have some information that----
Professor Turley. Oh no, actually, I have no information. I
have never spoken to him about it. I was saying that if you
look at the history of both Mueller and Barr, I would not
expect that they would change this longstanding policy. From a
constitutional standpoint, I have never really--I agreed with
it as, I think, we share this view. The Constitution does not
say that the President is immune from indictment, but an
indictment goes to the President as a person. Impeachment goes
to the President as an officeholder.
That does not mean that a President is going to stand trial
during a term, as you have noted ably. And indeed as you also
know as a--as a prosecutor, it is exceptionally unlikely that
when you got to the point of an indictment, that a President
would actually face a trial, let alone incarceration during
that term.
Where Bill Barr falls in this, I really do not know. When
we talk about him being a great advocate of the unitary
executive theory, this is not--I do not--I do not share in
Neil's view that even though I am not a big fan of the theory,
that it is so horrific, you know. He believes in clear lines,
and I share that view of what is an executive function and what
is a legislative function. And when we talk about the avoidance
doctrine of courts in trying to interpret statutes to avoid
conflicts, it is important to remember that same avoidance
conflict protects Congress, right, I tend to favor in Article
I. Courts also avoid conflicts interpreting statutes that might
impede your own authority. So I am not too sure where he comes
out on this specific issue.
Senator Blumenthal. Let me ask you, and I am going to ask a
couple of other members. I am deeply disturbed, an
understatement, by some of the President's comments about the
FBI, about judges, about our judicial system generally. And
shouldn't the Attorney General of the United States be someone
who stands up for--you know, it is easy to say, ``I am for the
rule of law,'' but when the rubber hits the road, he should be
defending all of those institutions. Do you agree?
Professor Turley. I do. What I should caution is that I do
not think that Bill Barr is the type that is going to take a
public stance often against the President, but he is someone
who I think will be quite firm in his support with the--with
the Department. I do not know what the President thought he was
getting with Bill Barr, but I know what he is getting. He is
going to get someone who identifies incredibly closely and
intimately with that Department. And I think he will be a
vigorous defender of it.
Senator Blumenthal. Judge Mukasey, let me ask you, and I
am--I know that you may wish to be referred to as ``General.''
Judge Mukasey. I do not. I have always been uncomfortable
with that even when I was in the position. I thought it was
weird.
[Laughter.]
Senator Blumenthal. As Attorney General--as Attorney
General, I was referred to as ``General'' for 20 years, and I
never was comfortable with it, either.
Judge Mukasey. Yes, in the U.K., they call the Attorney
General ``Attorney,'' which seems a lot more civilized and a
lot more accurate, particularly when there are people in
uniform around.
Senator Blumenthal. As Professor Turley pointed out, in his
testimony about the seal, the UK has a very different system.
And I thought, by the way, the--your history of the seal was
really very pertinent in terms of showing the differences
between the Attorney General as an advocate of justice as
opposed to an advocate for the queen or the President.
Professor Turley. Thank you.
Senator Blumenthal. But let me ask you, are you not deeply
troubled by the President's attacks on the judiciary?
Judge Mukasey. I disagree with them. I think it is
extraordinarily unwise for him to do it, and in that sense--in
that sense I am troubled. Obviously there is a--or there is or
should be a political price to be paid for that, and I think we
are in the process of seeing it paid to a certain extent. But
there has always been a certain level of tension between and
among the branches. How it is expressed and how civilly it is
expressed is a different thing, and I think we are probably in
agreement there. But there is always a certain level of pulling
and hauling. That is built into the constitutional system.
Senator Blumenthal. And are you not also troubled by the
President's attacks on the FBI and the Department of Justice?
Judge Mukasey. Again, the FBI can function on a day-to-day
basis without a rooting section in the White House or a razzing
section in the White House. I think that some of his criticisms
of the FBI may very well turn out to be warranted. So far as
the Department, that is a different story entirely, and I have
articulated that. I think that the former Attorney General had
no choice but to recuse himself. He did, and that was not
something that was--that was not a criticism that ever held any
water.
Senator Blumenthal. Well, I want to, again, thank you all
for being here. I have a lot more questions. Maybe I will
contact some of you privately. My time has expired, and I know
that Acting Chairwoman and I have to go vote. But thank you,
all, for being here today.
Senator Blackburn. Thank you. Without objection and on
behalf of Senator Grassley, I would like to enter this letter
from Taxpayers Against Fraud into the record.
So ordered.
[The information appears as a submission for the record.]
Senator Blackburn. Thank you all for being here today and
for your insight into how Mr. Barr would lead the Department of
Justice in what is a very challenging time.
Excuse me?
[Voice off microphone.]
Senator Blackburn. All right. He is in, just as I am
getting ready to end this hearing.
Mr. Coons, you are recognized.
Senator Coons. Thank you, Senator Blackburn.
Senator Blackburn. You just made it in under the wire.
Senator Coons. Yes, ma'am. Thank you to the panel. I
appreciate your patience. There have been, as you know, votes
and other issues happening in other settings. Reverend Risher,
we did have an opportunity to speak during the break, but I
just wanted to re-confirm my sense of loss at what you shared
with us, and the fact that I had the opportunity to visit, and
to worship, and then to travel with Felicia Sanders and Polly
Sheppard. It was a blessing to get to meet you today, and I
look forward to your upcoming writing, For Such a Time as This,
and talking about reconciliation work together. It is important
and difficult work.
But I wanted to start, if I could, by asking both you and
Mr. Canterbury, with whom I have had the honor of working on
other issues, about background checks in particular. We talked
previously about the ways in which the NICS System does not
currently fully work to deny access to weapons to those who
should under the law be denied access to weapons.
Senator Toomey and I introduced a bipartisan bill in the
last Congress, the NICS Denial Notification Act, that would
make a simple improvement to how we enforce our current law. If
you lie and try, if you go into a gun dealership and fill out
the form and say I am entitled to buy a gun, they run the
background check and come back and say, umm, we are really
sorry, but you spent 5 years in a Federal penitentiary for
armed robbery, we are not giving you a gun today, and you storm
out. In my home State, nothing more happens. In his home State,
because the State police conduct that NICS notification, they
know that they can now go have a conversation with you about
for what purpose were you purchasing this weapon.
This bill, if it were to become law, would require
notification, simple notification, to a State or local law
enforcement contact. And these cases--these so-called ``lie and
try'' cases are rarely prosecuted at the Federal level, partly
because of a lack of knowledge, partly because of a lack of
resources. Mr. Canterbury, I would be interested--I am grateful
for what I understand is the FOP support for the concept in the
bill. I wondered if you would be willing to advocate with
Attorney General Barr, should he be confirmed, for the
resources to enforce ``lie and try'' laws and to make sure that
our NICS system is working as it should.
Mr. Canterbury. Absolutely. We have been very critical of
the lack of resources for the NICS System, and the fact that a
``lie and try'' normally goes without prosecution. So, you
know, we have supported that bill in the past. We are with you
and Senator Toomey on that. And obviously with that will come
the necessary appropriations and authorization to enforce.
Senator Coons. I sure hope. Reverend Risher, would it have
made any difference in the Dylann Roof case if he had been
denied the opportunity to purchase a weapon?
Reverend Risher. Yes, it would have made a difference. I
believe if he was not able to secure his gun at that particular
day, that maybe the tragedy in Charleston may not have
happened. One of the things that we are up against is the 3-day
waiting period that I know that needs to be expanded in order
to be able to have a complete background check. And I think
things would have been different if those things were in place
at the time he bought the gun.
Senator Coons. Thank you, Reverend. As the Co-chair of the
Law Enforcement Caucus, I intend to work in this Congress as I
did in the last to try and find ways that both parties can
support that would strengthen law enforcement and our system of
denying access to weapons to those who should not have them.
Professor Kinkopf, if I might, there was some vigorous back
and forth about the unitary executive theory. We could have a
very long conversation about this, but I am just going to ask a
focused question. Tell me specifically, the unitary executive
theory is that it is theory. It is not currently the law of the
land. Am I right about that?
Professor Kinkopf. That is correct. In fact, the Supreme
Court has rejected it repeatedly in every case beginning with
Humphrey's Executor.
Senator Coons. Yet you suggested that if we were to have an
Attorney General with a very expansive view of Executive power,
it might have some negative implications, and it might have
some negative implications that would have some current
relevance. Could you just explain that just a little bit more?
My superficial and ill-informed view of this is that the
Founders did not actually say ``all'' Executive power is given
to the--to the President, that it was ``the'' Executive power.
And then are examples of ways in which Executive power is
actually shared with other branches historically. I do not want
to get into a wonderful law nerd fight, but I am interested in
what are the practical implications if we have an Attorney
General who has a very broad and expansive view.
My predecessor, Senator Biden, when he was Chairman Biden,
although he was very complimentary of Mr. Barr, did express
real concern about how broad his Executive power theory was.
Professor Kinkopf. Right. So that reading of the Executive
Vesting Clause was argued by President Harry Truman in the
Steel Seizure Case, and specifically rejected by the Supreme
Court, but that did not kill it. It keeps coming back. Lawyers
in the Justice Department, earnestly believing in it, applied
it in the torture memo, most infamously. So it is something we
keep hearing.
And the torture memo is a good example in the sense that it
illustrates that much of what the Justice Department does never
gets into court. And so, the Attorney General is such an
important office because very often the Attorney General is the
rule of law. It is only the Attorney General's willingness to
not only stand up for what the Constitution says, but to
recognize what the Constitution actually says. I have no qualms
about William Barr on the first score. It is on the latter that
I have real trouble.
And so the Attorney General is a crucially important figure
from that standpoint for issues we cannot even begin to
contemplate and we may never know about it. But as the issues
we do know about, that we can be quite certain, and even issues
that may end up in court one day, that role is crucially
important. Suppose the President decides he wants to tell the
Federal Reserve how to run monetary policy.
Now that is something that might end up in court, but the
Myers case, sort of the first case of the modern approach to
the President's removal power, is a case where Woodrow Wilson
fired Frank Myers, the Postmaster First Class in Portland,
Oregon, while he was President. His presidency ended in 1921.
The Myers case was decided by the Supreme Court in 1927. Can
you imagine 6 years of a cloud hanging over the independence of
the Federal Reserve?
So, even if, ultimately, the Supreme Court vindicates the
proper view of the Constitution, we have potential for enormous
chaos in the markets. And that is just one example of one
independent agency and the important role it plays in our
lives.
Senator Coons. And you previously cited a list of
independent agencies in Humphrey's Executor, and this is a line
of questioning I pursued with our most-recently confirmed
Supreme Court Justice. I am very concerned about how this view,
which begins with the Scalia dissent, and now has expanded
significantly in terms of its adherence, what its real
consequences might be. If I might, with deference to the Chair,
ask one last brief question.
Senator Blackburn. Very brief----
Senator Coons. Very brief.
Senator Blackburn [continuing]. Because I have not voted.
Senator Coons. Mr. Morial, about 67,000 Americans every
year are dying of overdoses. Mr. Barr once said, ``I do not
consider it an unjust sentence to put a drug courier in prison
for 5 years. The punishment fits the crime.'' I have come to
the conclusion we cannot incarcerate our way out of the opioid
crisis. Do you believe Mr. Barr will advance policies to help
those suffering from addiction get the help they need without
needlessly prosecuting and incarcerating large numbers of low-
level drug couriers?
Mr. Morial. I do not think we heard anything from him--I
was not here yesterday--or anything in his record that would
suggest that. I think it is going to require strong
constitutional oversight. It is not the--if the way we treat
the opioid crisis mirrors the way we treated the crack crisis,
we are just continuing the ill-advised policies of mass
incarceration. And they certainly do not work particularly for
the user class. The user class. And what we did in the crack
cocaine crackdown is it was users who were incarcerated for 18
months, 2 years, 3 years. Sometimes they repeated, and they
went back to jail a second time.
And the opioid crisis is an opportunity now that we are
losing 60,000 people a year, more than we are losing to gun
violence, to break from those policies and treat the opioid
crisis for what it is. It is a public health crisis, just like
the crack and cocaine crisis--these are people with deep
problems with substance abuse. It is not to exonerate the
pusher, it is not to sanction it, but it is to come up with a
more intelligent approach. So I do not know if the nominee is
there, if--and I think that this Congress and this Committee is
going to have to force him to get there.
Senator Coons. Thank you, Mr. Morial. Thank you to the
whole panel. Thank you to the Chair for your forbearance.
Senator Blackburn. And we thank you all for helping to give
us a clearer picture of what you perceive to be the judgment
and the understanding and the commitment of Mr. Barr. And this
concludes the hearing to consider William Barr as Attorney
General.
I will remind the Senators that the record will be open
until 5 p.m., on January 22nd, to submit questions, and we
request your timely response.
Senator Blackburn. This hearing is adjourned.
[Whereupon, at 1:04 p.m., the hearing was adjourned.]
[Additional material submitted for the record for Day 1 and
for Day 2 follows.]
A P P E N D I X
Additional Material Submitted for the Record
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Questions Submitted to Hon. William Pelham Barr, Nominee
to be Attorney General of the United States, by Senator Tillis
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Follow-up Questions Submitted to Hon. William Pelham Barr, Nominee
to be Attorney General of the U.S., by Senator Whitehouse
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Responses of Rev. Sharon Washington Risher to Questions
Submitted by Senator Klobuchar and Senator Leahy