WASHINGTON – William Barr's 19-page memorandum was striking enough when it emerged last month.
The attorney general under President George H.W. Bush had just been nominated to the same post in Donald Trump's administration when the document revealed his stinging critique of Russia special counsel Robert Mueller’s inquiry into possible obstruction by Trump.
Not only did Barr object to any demand that “the president submit to interrogation” by Mueller’s team, but he asserted that the special counsel’s likely theory – that Trump sought to obstruct Mueller’s inquiry by firing FBI Director James Comey – was “fatally misconceived.”
Barr’s unsolicited counsel directed last June to Deputy Attorney General Rod Rosenstein, who was overseeing Mueller’s work, was not meant for public consumption. But it promises to be among the most incendiary flashpoints in the 77th attorney general’s bid to become the nation’s 85th chief law enforcement officer Tuesday before the Senate Judiciary Committee.
Last week, Barr’s controversial work was thrust further into the spotlight when it was revealed that Rosenstein intended to leave the department after Barr’s anticipated confirmation.
Some Democrats, concerned that the nominee’s memo represented a threat to Mueller, called on Barr to recuse himself from the Russia inquiry as a condition of his confirmation.
“I want him to completely disavow that theory of limits of the authority of the special counsel,” Sen. Richard Blumenthal, D-Conn., a committee member, told USA TODAY. “I want ironclad, specific limits and possibly even recusal.”
Sen. Dianne Feinstein of California, the top Democrat on the panel, asked Barr who requested the memo and to whom he provided it after seeing reports he gave it to Trump’s personal lawyers in addition to Rosenstein. She said that in 25 years on the committee, she had never seen a nominee write such an in-depth legal memo for no reason.
Former Republican attorneys general concede that Barr has some explaining to do, signaling that the nominee could best calm the turbulent political waters by ensuring lawmakers that his private counsel was offered as just that – without the benefit of any inside knowledge of Mueller’s investigation.
“This is someone who has held the biggest jobs at the Justice Department,” former Attorney General Michael Mukasey told USA TODAY. “He was attorney general, deputy attorney general and directed the Office of Legal Counsel. He is a formidable lawyer who might best explain his work as any good lawyer would: that he will always follow the law.”
Barr will have to assess a multitude of weighty questions, from the boundaries of the president’s executive authority to the challenge of lifting sagging morale inside a sprawling department that for the past two years has been a punching bag for the president.
“I can’t think of a more potentially consequential time for any attorney general than the issues facing Justice today," Mukasey said.
Trooping to and from private meetings with committee members last week, Barr declined public comment, though he made a few brief exceptions.
Asked about his relationship with Mueller, who served under Barr during the investigation in 1988 into the bombing of Pan Am Flight 103 over Lockerbie, Scotland, the former attorney general responded with one word: "Terrific."
The legal challenges ahead
Indeed, if confirmed, the first days and weeks of a Barr tenure are likely to bring a host of challenges, any one of which would probably define an entire term in any other administration.
As Barr prepares for Tuesday's hearing, the president is weighing a key test of his own executive power: whether to declare a national emergency that would allow him to bypass Congress and tap billions in federal money to build a long-promised wall along the U.S.-Mexican border – a possible path toward ending a shutdown of the federal government.
The move is all but certain to prompt a legal challenge from Democrats that would require the Justice Department to argue the president's case.
There are questions about whether Trump – as a sitting president – could be subject to indictment, given the criminal investigations that claimed some of his former top aides. The Justice Department has taken the position that such a prosecution would unconstitutionally interfere with any president's capacity to run the government.
This month, new House Speaker Nancy Pelosi, D-Calif., declared the proposition an "open discussion."
As attorney general, Barr would serve as the ultimate arbiter on the public release of any final accounting of the investigative work by Mueller's team. The special counsel has filed charges against 33 people since taking control of the inquiry in May 2017.
"I think you have to go back to the Nixon era to appreciate the issues awaiting a new attorney general," said David Weinstein, who served for more than a decade as a federal prosecutor in Miami.
Jimmy Gurule, a University of Notre Dame law professor who was an assistant attorney general under Barr in the Bush administration, described his former boss "as a decent and honorable man," but his confidence was shaken by Barr's writings.
Citing a passage deep in Barr's memo to Rosenstein in June, Gurule said the nominee appeared to take the position that the president had the authority to shut down a criminal investigation if he believed the inquiry to be "bogus" and run by "political opponents."
"It would neither be corrupt nor a crime for a new president to terminate the matter and leave further investigation to Congress," Barr wrote. "There is no legal principle that would insulate the matter from the president's supervisory authority and mandate that he passively submit while a bogus investigation runs its course."
Gurule said Barr's reasoning "should be alarming to every American."
"It appears to place the president beyond judicial review in direct conflict with the fundamental principle that no one is above the law," Gurule said.
Asked about Barr's memo shortly after it was first made public in a report by The Wall Street Journal, Rosenstein defended the author, saying it merely reflected the opinion of the former attorney general, who had not been briefed on the Mueller investigation.
Rosenstein said he had not shared any details about the investigation with Barr.
"Bill Barr will be an outstanding attorney general when he is confirmed," Rosenstein said.
'This is not a good starting point'
Confirmation will be up to the Senate, where Republicans control a solid majority. Nevertheless, Barr is likely to be closely vetted by wary Democrats.
“Rosenstein’s departure definitely increases the threat level,” Blumenthal said. Amid the prospect of additional subpoenas and criminal charges, Blumenthal said, the attorney general would have to “support, not just avoid active interference.”
Illinois Sen. Dick Durbin, the assistant Democratic leader and a committee member, said determining whether Barr is a worthy candidate became more urgent in light of Rosenstein’s impending departure.
Durbin said his concern extended to acting Attorney General Matthew Whitaker, who has served in the interim since November when Jeff Sessions was ousted by Trump. Citing Whitaker's separate criticism of the Mueller inquiry, Durbin said he worried that Whitaker might intervene in the Mueller investigation before Barr took office.
“I’m concerned when this man, who has a good reputation as a lawyer and professional, volunteers to the Trump administration that they should constrain Mueller’s investigation,” Durbin told USA TODAY about Barr’s memo. “This is not a good starting point for someone who as attorney general would have supervisory authority over the investigation.”
Sen. Christopher Coons, D-Del., said Thursday after meeting with Barr that he found his answers about the Mueller investigation “encouraging” but that he would repeat his questions at the public hearing.
Barr said “he knows and respects Robert Mueller and served alongside him, that he intends to allow that investigation to conclude, to reach its natural conclusion unhindered, that he sees it as critical to the rule of law and the legitimacy of the Department of Justice,” Coons said.
Republicans were confident Barr would be confirmed.
“I had a good meeting with him,” said Sen. Lindsey Graham, R-S.C., the Judiciary Committee chairman, adding that Barr told him he has a high opinion of Mueller and thinks he is doing a professional job. “I think he’ll be fine.”
Sen. Ted Cruz, R-Texas, said Democrats “will certainly try” to block Barr because they “have demonstrated that they will treat almost anything like a political circus.”
“I fully expect more Spartacus moments in the next two years ahead of us,” Cruz said.
Sen. John Kennedy, R-La., said the shutdown diverted his attention from the Barr hearing but vowed that he would be prepared.
“I’ll ask him tough questions,” Kennedy told USA TODAY. “I’m sure the question about the Mueller investigation will come up. I’m sure the question about his opinion about the relationship between Justice and the other parts of the executive branch, including but not limited to the office of the presidency," will be reviewed.
This article originally appeared on USA TODAY: William Barr: Democrats to question attorney general nominee about criticism of Robert Mueller inquiry