Lessons From Watergate: What the Senate Judiciary Committee Should Ask Bill Barr

By Mikhaila Fogel, Quinta Jurecic and Benjamin Wittes, Lawfare

15 January 19

illiam Barr, President Trump’s nominee to head the Justice Department, will appear on Jan. 15 before the Senate Committee on the Judiciary for what promises to be a contentious confirmation hearing. The controversy about Barr does not concern his qualifications to be attorney general; it’s hard to imagine better qualifications than having already served as attorney general, along with having served as deputy attorney general and having run the department’s Office of Legal Counsel. And while Barr has many policy views with which reasonable people disagree, the controversy is not about policy either. The controversy over Barr boils down to a simple anxiety: Given his public statements about Special Counsel Robert Mueller’s investigation into Russian election interference, his actions with respect to it and his known views on matters of executive power, is he the proper person to oversee the Mueller probe?

This is actually not the first time such questions have arisen when the Senate judiciary committee was considering an attorney general’s nomination in the midst of a national scandal and an investigation of that scandal that was consuming a presidency. In fact, it is not even the second time.

Twice in 1973, the committee confronted nominees to head the Justice Department as the Watergate investigation was unfolding—first when President Nixon nominated Elliot Richardson and second when, following the Saturday Night Massacre, he appointed William Saxbe. The hearings for both men are highly instructive. Indeed, in both cases, the hearings were dominated by senators seeking confidence that the new attorney general would allow an independent and impartial investigation of Watergate to go forward to completion.

In the case of Saxbe, the hearing actually featured a dramatic appearance by Special Prosecutor Leon Jaworski, whom Sen. Robert Byrd asked the committee chairman to summon. Byrd requested Jaworski’s presence, as he stated at the hearing, because, “I think it is imperative that the committee get your [Saxbe’s] assurance of a strong commitment to Mr. Jaworski, and I think it is important to Mr. Jaworski that he not only be able to read that commitment in the record, but that he also be present when that commitment is made.” Jaworski was actually sworn in and sat next to the nominee while Byrd exacted promises from Saxbe to honor the terms of the special prosecutor’s charter, literally going line by line through the guidelines getting both men to state that they would honor them.

The following are 15 questions drawn from those hearings which senators may wish to pose to Barr:

1. When Richardson appeared before this committee, he committed himself “to pursue the truth wherever it may lead.” He said he had “examined [his] conscience on that score” and was “satisfied that [he was] prepared to do that without fear or favor and with regard solely to the public interest.” In your written statement yesterday, you said that “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 [Mueller] will be allowed to complete his work.” Are you, like Richardson, committed to pursuing the truth wherever it may lead? Have you examined your conscience and are you satisfied that you are prepared to do that without fear or favor and with regard solely to the public interest?


2. In service of this commitment, Richardson promised the committee to appoint a special prosecutor, who turned out to be Archibald Cox. Here is how Richardson described the sort of person he would appoint: “the most capable possible person ... a highly qualified and experienced individual of high character and broad experience.” You said in your written statement yesterday that “I have known Bob Mueller personally and professionally for 30 years. We worked closely together throughout my previous tenure at the Department of Justice under President Bush. We’ve been friends since. I have the utmost respect for Bob and his distinguished record of public service.” Do you believe Robert Mueller meets Richardson’s description of the special prosecutor he would appoint? Do you believe that, as the president has said, Mueller is an angry Democrat leading other angry Democrats in a witch hunt?


3. Both men promised to protect the integrity of the investigation and to guard it from political interference. Richardson committed to giving the special prosecutor “all the independent authority he needs to do the job that I am asking him to do,” for example. And as Byrd put it to Saxbe, “[Y]ou will have no part in exerting indirect or direct pressure on the Special Prosecutor … you will not allow a narrowing of his jurisdiction or authority … you will protect his independence and insulation from pressures from the executive branch and from the legislative branch … you, to the very best of your ability, will make public such attempts, rather than see his investigation impaired.” Saxbe responded, “I will do anything in my power not to see the investigation impaired.” In an environment in which the president of the United States is publicly declaring the answers to questions currently under investigation, demanding investigations of his political enemies and deriding the investigation as it exists, how will you make sure this investigation is shielded from political interference?


4. In describing his own role in supervising the investigation, Richardson said he would retain for himself only “ultimate authority” over the investigation, by which he meant only the authority to remove the prosecutor in the most extreme situations. Saxbe too promised repeatedly, in Jaworski’s presence, to respect his independence. Under the special counsel regulations, which you say you will follow “scrupulously and in good faith,” do you believe Mueller has similar “independent authority” over the current investigation subject only to your “ultimate authority”? How would you describe the proper relationship between the attorney general and Mueller? In what senses will you and will you not exercise authority over him?


5. Explaining his view in lengthy colloquies with senators, Richardson made clear that he would broadly defer to the special prosecutor even if he thought he was wrong. “If I thought, and I can scarcely imagine that it would be otherwise, that he was acting on a basis that reflected a reasonable, professional judgment, within the scope of the authority and the jurisdiction vested in him, I would not interpose my own judgment. I would respect his judgment. The decision, therefore, would be his,” Richardson testified. “I might think that the special prosecutor was clearly wrong and still not substitute my own judgment.” Saxbe, with Jaworski sitting by his side, gave an even stronger statement, promising that he would not countermand the special prosecutor, that Jaworski “would operate completely independent[ly], and the only time he will have contact with me is when he wants something I can provide him.” Can you offer similar assurances? Under what circumstances would you overrule a considered course of action Mueller undertook to pursue?


6. Richardson was specifically asked whether he would defer to the special prosecutor if the latter “determined it was necessary to get the president’s affidavit or have his testimony personally.” Richardson testified, “Yes, In that case, I think if there were any problem with it at all, it would be a problem raised by counsel to the President” in resisting the request. Likewise, Saxbe told the committee that if there were a dispute between the special prosecutor and the president over the production of evidence, even classified evidence, the special prosecutor would be the “sole judge of whether anything that comes up in this investigation is of such importance to national security that it cannot be disclosed, and I would not interject myself into the determination.” Can you offer similar assurances? If Mueller seeks the president’s testimony, will you—as Richardson suggested—permit the issuance of a subpoena and leave it to the president’s counsel, and White House counsel, to respond on his behalf?


7. Richardson famously promised that he would only fire Cox for “extraordinary improprieties.” Saxbe went further with Jaworski, whose appointment charter required the concurrence of congressional leadership and of the leadership of the House and Senate judiciary committees for his dismissal. In response to questioning, Saxbe stated his view that no one other than the attorney general could revoke or amend the charter and that, if the president asked him to do so, he would refuse. He committed to revising the charter only in coordination with Jaworski and the Senate Judiciary Committee. Do you take the view that the existing regulations governing Mueller’s work as special counsel—in particular, the requirement that he may be dismissed only for good cause—may be revoked or amended only by the attorney general, or may the president do so personally? If the president asked you to revoke or amend the regulations, would you do so?


8. In response to a question about whether the special prosecutor should have a “free hand” to make information public in response to efforts to impede his investigation, Richardson testified, “one of the important protections that the public interest has in this situation is the right of the special prosecutor to make any public disclosure that he believes he should.” Asked specifically whether executive privilege would bind the special prosecutor in such circumstances, Richardson testified, “No, certainly not.” He went on, “He has to understand and you have to understand that he makes the call on what is to be made public.” You state in your written testimony that, “I also believe it is very important that the public and Congress be informed of the results of the Special Counsel’s work. For that reason, my goal will be to provide as much transparency as I can consistent with the law.” Do you believe that executive privilege binds Mueller in making public disclosures? Do you believe that he makes the call on what is to be made public? Do you believe that he should be able to speak freely to the extent he believes at any point that investigation has been impaired? Do you commit that the Congress of United States will see Robert Mueller’s conclusions to the extent they are produced in writing in a report? Do you commit that the public will be able to see those conclusions?


9. Unlike either Richardson or Saxbe, you are in the unusual position of having been nominated to supervise as attorney general an investigation of the president, having reportedly been previously asked by the president to represent him as his attorney in that same investigation. Can you explain precisely the nature of your interactions with the president or his attorneys over the possibility of your representing him in any matter or matters in which such conversations may have taken place?


10. Like you, Richardson faced questions from this committee about whether activity he engaged in prior to his nomination required his recusal from supervision of the investigation, in particular his association with the Committee to Reelect the President on the campaign trail in 1972 and his work with White House aide John Ehrlichman. Richardson responded that he had conducted “a careful search of my own conscience to determine whether or not I could properly undertake this responsibility.” What were the circumstances that led you to write your lengthy memorandum addressing what you took to be Special Counsel Mueller’s obstruction of justice theory? How did you come to decide to write this memorandum? Given that Mueller has publicly articulated nothing whatsoever about the theory behind his investigation of the president’s interactions with law enforcement officials, why were you confident you understood the legal theory well enough to address it? Why should this committee be confident that you were not jumping to conclusions about the facts?


11. It has been reported that you shared the memo not just with the Justice Department but also with the president’s lawyers. Is this true? Please describe all contacts you had with the president’s lawyers with respect to this memorandum. Are these the only contacts you have had with the president’s lawyers concerning matters currently under investigation? If not, please describe any other contacts you may have had with the president’s legal team. Have you ever advised or consulted with the president’s legal team or with the president himself?


12. Asked whether he should recuse himself from supervising the Watergate investigation if confirmed as attorney general, Richardson declared: “If I felt ... there were any basis for recusing myself or disqualifying myself for my responsibility in this or related matters, it would make no sense for me to be here.” When a senator suggested that he thought there both institutional and personal reasons counseling recusal, Richardson responded, “In that event, my nomination should be rejected.” Are you, like Richardson, confident that there is no basis for your recusing yourself in this matter? Are you confident that career Justice Department ethics officials will agree with you on this? And do you commit to following their guidance if they recommend recusal?


13. Saxbe was also scrutinized for his comments regarding the Watergate investigation before his nomination to be attorney general. In particular, senators questioned him regarding comments he made regarding the existence of the White House tapes at a meeting in Hong Kong, in which he reportedly said, “I personally wish I had never heard of the tapes … If they are incriminating, they should be destroyed.” At his hearing, Saxbe did not stand by his statements. In November 2017, you commented to the New York Times that there was more to Hillary Clinton’s involvement in the Uranium One deal than there was to potential collusion between the Trump campaign and the Russian government, and said that, “To the extent it is not pursuing these matters, the department is abdicating its responsibility.” Do you stand by that statement today?


14. Saxbe was asked whether “executive privilege in your mind be used to cover up evidence of wrongdoing by members of the executive branch?” He responded, “There is a body of law that is well determined. I think it cannot.” Do you believe there is a crime-fraud exception to executive privilege? To the extent evidence shows wrongdoing but might reflect executive branch or presidential confidentialities, under what circumstances, if any, is such information privileged from disclosure to Congress and the public?


15. During Richardson’s confirmation, Sen. Ted Kennedy asked if the nominee would feel obligated to keep the president informed of developments in the Watergate investigation. Richardson responded, “No, and indeed, the President has told me that he does not want to be informed.” He went on to say that the relationship between the Department of Justice and the special prosecutor and the White House should be “arm’s length.” You have said in your written testimony that President Trump has sought “no assurances, promises, or commitments” from you of any kind, including regarding the Mueller investigation. Can you describe how you plan to communicate with the White House on this matter? What level of communication with the president do you believe is appropriate in a matter that directly involves his own conduct? Do you agree with Richardson that the relationship should be “arm’s length”?

Finally, in the tradition of Byrd’s request to hear from Jaworski, there’s a question on which the Senate Judiciary Committee would benefit from input from Mueller himself. “Thus far, have all personnel under the Department of Justice, including the U.S. Attorneys, cooperated to the fullest extent possible with you, Mr. Jaworski?” asked Byrd.

“I have had no difficulty whatsoever,” Jaworski responded. The committee should ask a similar question of Mueller, who should be able to address the question if posed formally by a congressional committee.

Hearing from the special counsel that his investigation has not yet been impeded, along with Barr’s prospective commitment to not impede but protect it, would go a long way—as it did in the past—to satisfying skeptics that, as Barr has said he wants, “this matter [will] be resolved by allowing the Special Counsel to complete his work” and that the country will get “a credible resolution of these issues.”