Hearing on Barr nomination set

The Senate Judiciary Committee has set January 15 and 16 as the dates for the confirmation hearing of William Barr, President Trump’s nominee to serve as Attorney General. The Committee now consists of 12 Republicans and 10 Democrats. Cory Booker and Kamala Harris remain on the Committee, so there will be no shortage of showmanship and viciousness. Lindsey Graham now chairs the committee, so there will be some comedy mixed in.

Jeff Flake is gone, for which we should be grateful.

I expect Barr to be confirmed, probably on a straight party vote. Democrats will demand that he (1) commit to recusing himself from the Mueller investigation and, failing that, (2) commit to letting Mueller do whatever he pleases.

Barr will reject these demands, I should think. To ensure Republican support he will probably have to provide some assurances that Mueller will have a fair amount of latitude. But he need not promise that Mueller can do whatever he pleases.

Barr is already on record that certain matters Mueller reportedly is investigating — e.g., the firing of James Comey — are not obstruction of justice as a matter of law and that a contrary view would damage the presidency. He should politely defend this position.

Democratic members may secretly hope Barr is confirmed. They aren’t fans of Matt Whitaker, the acting AG, nor are they likely to be fond of the alternatives to Barr whom Trump would probably consider if Barr is not confirmed.

The Dems will be hoping that after Barr is confirmed, Justice Department ethics lawyers will say he should recuse himself the Mueller investigation, due to his past statements about the proper scope of the investigation. Even if Barr rejects this opinion, the Democrats will still have a talking point with which to attempt to discredit Barr if he interferes with Mueller in any way.

The notion that Barr is disqualified from overseeing the Mueller investigation because he has opined about a particular legal theory Mueller may be considering strikes me as baseless. It’s not unusual for an incoming Attorney General to have taken legal positions on matters the Justice Department handles.

Jeff Sessions had served on the Judiciary Committee for years. It’s likely he had expressed opinions on various legal matters relevant to the DOJ — e.g. the legality of DACA — before he became the AG.

Robert Kennedy’s opinions on organized crime were well known and oft expressed before he became Attorney General. He might well have made public statements about the legal theories that should be used to attack it. If he did, this was no reason for him to recuse himself from the Department’s investigation and prosecution of organized crime.

Like almost every lawyer in America, Barr has opinions about the Mueller investigation. Like many lawyers, he has expressed some of his opinions.

If Senators disagree with Barr’s opinions, that’s possible reason to vote against confirming him, just as strong disagreement with Sessions’ view on immigration law were a legitimate reason for voting against him. But if Barr is confirmed, he need not recuse himself from overseeing the Mueller investigation, whatever the ethics lawyers may recommend. (Matt Whitaker has already declined to follow the DOJ’s ethics lawyers advice that he recuse himself).

Once Barr is in place at the DOJ, he can pick a successor to Rod Rosenstein. The sooner Rosenstein departs the better.

The sooner Barr takes command, the better too. Jeff Sessions had a good run, but with him gone the DOJ needs a Senate confirmed replacement to steer the ship so as to make maximum use of the next two years.

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