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Five Dealbreakers for Confirming Trump’s Next Attorney General

If Bill Barr can’t answer “yes” to these few simple questions, the Senate should reject him.

Alex Wong/Getty Images

Bill Barr is no stranger to the Senate confirmation process. President Donald Trump’s nominee to be the next attorney general already went through it twice before, first to serve as deputy attorney general in 1990 and then to become attorney general from 1991 to 1993. That experience, as well as the Republican majority in the chamber, will make it somewhat easier when he faces two days of intense questioning by the Senate Judiciary Committee beginning on Tuesday.

If confirmed, Barr would take command of the Justice Department at a grim moment in modern American history. He would lead an immigration system defined by its cruelty and malice under his predecessor Jeff Sessions. He would report to a president who cares little for the rule of law or the Justice Department’s traditional independence. Most crucially, he would oversee special counsel Robert Mueller’s investigation into Russian meddling in the American democratic process.

It’s the duty of every attorney general to uphold the Constitution and the law, of course. Since the Watergate crisis, it’s also been the attorney general’s responsibility to stand at arm’s length from the political maneuvering of the White House. Any Justice Department nominee put forward by Trump deserves extra scrutiny, and Barr’s recent actions have called into question his good faith. He has publicly defended Trump’s dismissal of former FBI Director James Comey, and drafted an unsolicited memo last summer criticizing Mueller’s obstruction-of-justice inquiry. Barr reportedly shared the memo with one of Trump’s lawyers.

Trump has frequently told reporters that he craves an attorney general who shows personal loyalty and protects him from damaging investigations. Sessions, to his credit, was not that man. Barr’s track record suggests that he may yet be the loyalist attorney general that Trump desires. Unless Barr can give a resolute “yes” under oath to each of these five questions, the Senate should refuse to entrust him with one of the nation’s most important jobs.

Will you give Mueller all the independence he needs to complete his investigation, and protect the inquiry from interference by the White House?

The two-year Russia investigation has ensnared many of Trump’s former aides and colleagues, including former Trump campaign chairman Paul Manafort and former National Security Adviser Michael Flynn. Though Trump has frequently denied it, the evidence made public so far suggests that there was at least soft collusion between the Trump campaign and the Kremlin to sabotage Hillary Clinton’s presidential bid. Mueller may yet uncover even more.

It’s no secret that Trump wants to shut down the inquiry. He criticizes it almost daily, and reportedly tried to fire Mueller at least twice. So senators should demand a promise from Barr to protect him.

We’ve been here before. In May 1973, Richard Nixon nominated Elliot Richardson to lead the Justice Department as the Watergate crisis began to intensify. Senators quickly declared that they would not confirm Richardson unless he named a special prosecutor and gave him the independence to pursue the case to the end. Richardson named former Solicitor General Archibald Cox, pledging that he would “not countermand or interfere with the special prosecutor’s decisions or actions.” Richardson resigned six months later rather than obey Nixon’s order to fire Cox, citing his pledge to the Senate.

The Saturday Night Massacre, as it became known, irreversibly placed Nixon on the path to his eventual resignation. It also set the precedent that the Senate can demand a similar pledge under oath from future attorneys general before confirming them. If Barr believes in the rule of law, he should have no trouble giving it.

If the president directs you to open a criminal investigation into his political opponents, will you refuse?

In addition to arguing that the attorney general should protect him from politically damaging investigations, Trump has shown a desire to use the Justice Department against his opponents. He led “Lock her up!” chants during the 2016 campaign, and during a presidential debate, threatened to jail Clinton if he were elected. Earlier this year, The New York Times reported that he tried to order the Justice Department to open investigations into Clinton and Comey, though he ultimately demurred on the abuse of power.

This is the stuff of Old World dictatorships, not a mature liberal democracy. Few things could be more corrosive to free government than wielding the powers of state to criminalize political opposition. Trump may not show similar restraint in the future, especially if his own legal and political situation becomes more precarious. Barr should be willing to state under oath that he would not carry out such an order.

Will you also rebuff Trump if he directs you to violate federal law or the Constitution?

In an interview last month, former Secretary of State Rex Tillerson made the casual admission that he frequently had to persuade the president not to break the law. “So often, the president would say here’s what I want to do and here’s how I want to do it,” he told CBS News’ Bob Schieffer, “and I would have to say to him, ‘Mr. President, I understand what you want to do, but you can’t do it that way. It violates the law. It violates [a] treaty.’” (Trump responded by calling Tillerson “dumb as a rock.”)

This isn’t the first sign that Trump shows little fidelity to the American rule of law or constitutional governance. He routinely castigates federal judges for ruling against his legally dubious policies or for their ethnic ancestry, and suggested last November that he would bypass the Constitution’s guarantee of birthright citizenship by executive order. Tillerson’s account only highlights the need for cabinet officials who will place their oaths to defend the Constitution above their loyalty to the president.

Will you release Mueller’s report to the public if he writes one, and give him final authority over any redactions from it?

Under Justice Department regulations, the special counsel can submit a report on his findings to the attorney general at the conclusion of his or her investigation. There are persistent rumors that Mueller is currently drafting such a report, though the special counsel’s consistent silence makes it hard to determine the trajectory or progress of his inquiry. What happens to the report from there is unclear; some have expressed fears that a hostile attorney general could suppress its findings.

The Mueller report could ultimately give a damning account of foreign collusion and criminal wrongdoing by the president and his associates during the 2016 campaign. It could also fall short of the high expectations held by Trump’s opponents. Whatever its conclusions may be, it will be a valuable record of perhaps the worst attack on the American democratic process in the nation’s history. South Carolina Senator Lindsey Graham told reporters on Wednesday that Barr gave him private assurances that he would “err on the side of transparency” when it came to releasing Mueller’s report. If that’s the case, he should have no problem giving the Senate a similar pledge next week.

Will you forbid federal law-enforcement officials from taking any public steps, in the 90 days leading up to the 2020 election, that could affect its outcome?

Not every misfortune that befalls American democracy comes at the hands of Donald Trump. One of the most egregious breaches of election norms in recent history came from James Comey, the former FBI director. Less than a fortnight before the election, Comey sent a letter to members of Congress announcing that the FBI had reopened the investigation into Hillary Clinton’s use of a private email server while serving as secretary of state. FBI agents wrapped up the investigation a few days later, having found nothing yet again that would justify criminal charges.

Comey’s letter may have changed the course of the 2016 presidential election, and of American history. FiveThirtyEight’s Nate Silver concluded, based on opinion polls taken before and after the letter became public, that Comey’s intervention likely cost Hillary Clinton the presidency. (Some election analysts are more skeptical.) The Justice Department currently has a policy against making any moves that could alter the outcome of an election. Barr should enthusiastically vow to uphold that rule during the 2020 election and beyond.

Senators may also find other good reasons to vote against Barr’s nomination. His track record on criminal-justice matters is especially troubling. He championed harsh and punitive policies during his last stint at the Justice Department, in the early 1990s, that strengthened mass incarceration’s grip on American life. Most experts, including many conservatives, have now embraced reforms that make it easier for prisoners to rejoin society. It’s worth probing whether Barr has had a similar change of heart.

But it should not be difficult for a public official who believes in the rule of law to answer “yes” to the five questions above. If he refuses to do so, the Senate should roundly reject his nomination.