William Barr is right man for the times

In ordinary times, William Barr’s confirmation hearing before the Senate Judiciary Committee would have been uneventful. Barr’s qualifications for the position of attorney general are extraordinary. There will be no learning curve because he has occupied this position before. Nevertheless, these are not ordinary times.

Only one other person served as AG for two different administrations. That man, John Crittenden, is not a household name. Crittenden, who served twice in the 19th century, is a mere footnote in American history. Barr, on the other hand, will be retaking the job amid a firestorm.{mosads}

One potential obstacle to Barr’s confirmation is a memo he wrote regarding the great amount of power granted to a president by Article 2 of the Constitution. Barr’s memo casts some doubt on whether any president, as the sole repository of executive power, can commit obstruction of justice by taking actions permitted by the Constitution, such as firing a subordinate. Barr’s critics contend this memo — which was widely circulated, including to the Department of Justice (DOJ) and to President Trump’s attorneys — was, in essence, a job application. Barr disputes that claim, arguing instead that the memo stems from his practice of speaking out on constitutional issues that might have an impact on the rule of law over time.

Evidencing that practice, Barr similarly reached out to the DOJ regarding the prosecution of U.S. Sen. Robert Menendez (D-N.J.), which he believes was inappropriate, notwithstanding the senator’s different political party and political beliefs.

But let’s get to the elephant in the room: The public’s attention was riveted on Barr’s testimony because of the Senate committee’s concern regarding special counsel Robert Mueller’s investigation. Barr was pressed on whether he would recuse himself from supervising Mueller’s investigation and whether he would solicit an opinion from career ethics attorneys at DOJ on recusal. The committee also asked Barr detailed questions about his conversations with the president and his opinion of Mueller.

On the question of recusal, there really is no mystery. While Barr acknowledged that he would seek an ethics opinion, he stressed that the ultimate decision on recusal would remain his. Despite some fencing with Sen. Kamala Harris (D-Calif.), Barr did not waver from that position. Few things in life are certain, but this comes close: Barr will not recuse himself. He does not want to suffer the fate of his predecessor, Jeff Sessions. 

As to his conversations with President Trump and his opinion of Mueller, Barr testified that he told the president that he and Mueller are friends. Indeed, Barr called Mueller a “straight-shooter” and praised Mueller’s ability and integrity. To the president’s credit, he nominated Barr despite that praise of Mueller.

Members of the committee expressed concern about Mueller’s job security. Hearkening back to the days of Watergate, they asked Barr to promise that Mueller would have job security, just as then-Attorney General Elliot Richardson promised that Archibald Cox would have job security and be fired only for cause. When President Nixon ordered Richardson to fire Cox, Richardson declined to follow that order and resigned, rather than breach the promise he made to the Judiciary Committee.{mossecondads}

Current regulations provide that Mueller can be fired only for “good cause,” and Barr testified he could not imagine that occurring — and, because of his high regard for Mueller, it would take even more than good cause. Subsequent to the hearing, Barr wrote in response to a question from Sen. Corey Booker (D-N.J.), “I would resign rather than follow an order to terminate the Special Counsel without good cause.” Barr also said he would resign rather than do anything illegal. Further, Barr committed to protecting the integrity of the investigation and letting Mueller finish his work without political interference.

Of great interest to Congress is Mueller’s pending report and what version of it is released to lawmakers and the public. Barr said that, when it comes to dissemination of the report, he intends to be as transparent as possible. He added that this transparency must be consistent with regulations and laws.

It is possible that transparency will be illusory. Potential obstacles to total disclosure are grand jury secrecy, national security matters and presidential claims of executive privilege. While Barr testified that he would not allow the president or his counsel to change or modify the report, fairness requires that the president and his counsel be given the opportunity to read the report to determine if they want to assert any privileges or prepare a response.

I could not help but draw a comparison between Barr and Leon Jaworski, my boss during the Watergate scandal. When Jaworski was pressed into service, he, like Barr, was 68 years old. Like Barr, Jaworski had a successful career in private practice; he had been president of the American Bar Association and a senior partner in a powerful law firm. And, because of his age, Jaworski had no political aspirations.

In his book, “The Right and the Power,” Jaworski explained his struggle with the question of why he would accept the position of special prosecutor in view of the firing of his predecessor during the “Saturday Night Massacre”:

“Are you, Leon Jaworski, at sixty-eight and with a fair share of good fortune, willing to take on something that probably will be nothing but trouble? For years I had been exhorting my fellow lawyers not to shun unpopular cases. So I decided that as hard as the Special Prosecutor’s job was going to be — and it could destroy me — I would always feel better if I took it rather than letting it go by.”

Having watched Barr’s testimony, I would sum it up in two words: “Trust me.”

Most notable was Barr’s explanation why he would ever accept this job, given the current state of affairs. I was impressed with his answer, which was not unlike Jaworski’s answer. Barr explained that, at 68 years old and having been blessed with a very good life, he has no political aspirations and no reason or need to curry favor from either party. Barr’s acceptance of the job must be based on his allegiance to our institutions and his fealty to the rule of law.

Former AG Michael Mukasey — for whom I have a great deal of respect, and can personally attest that he is of the highest integrity — lauded Barr’s qualifications and described him as “an honorable, decent, smart man.” I believe that a person such as Barr, who pledges dedication to the rule of law, deserves the trust of the Judiciary Committee, the Senate and, most importantly, the American people.

Barr has the credentials, experience and integrity to meet this challenge. He is the right man for the time — and, yes, I trust him.

Jon A. Sale was an assistant special prosecutor to Archibald Cox and Leon Jaworski during the Watergate investigation. He served as assistant U.S. attorney for the Southern District of New York and the District of Connecticut, and as chief assistant U.S. attorney for the Southern District of Florida. He is of counsel and a co-chair of the national white-collar and government investigations practice group in the Miami office of Nelson Mullins Broad and Cassel.