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Barr says he’d resign rather than fire Mueller without cause

Attorney general nominee fills in some blanks with new answers on special counsel probe, border wall, abortion

William P. Barr, nominee to be attorney general, speaks during his confirmation hearing in the Senate Judiciary Committee on Jan. 15. (Bill Clark/CQ Roll Call file photo)
William P. Barr, nominee to be attorney general, speaks during his confirmation hearing in the Senate Judiciary Committee on Jan. 15. (Bill Clark/CQ Roll Call file photo)

Attorney General nominee William Barr assured senators that he would not fire special counsel Robert S. Mueller III without good cause or change Justice Department regulations for the purpose of firing him.

“I would resign rather than follow an order to terminate the special counsel without good cause,” Barr said in written answers to questions from Senate Judiciary Committee members released Monday.

Barr asserted his independence from the White House during his Jan. 15 confirmation hearing but he did not say that so directly, testifying only that he would “not carry out that instruction.” He also said, “Frankly it’s unimaginable to me that Bob would ever do anything that gave rise to good cause.”

That prompted several senators to ask follow-up questions about whether he would protect the Mueller-led investigation into connections between President Donald Trump’s campaign and Russian interference in the 2016 election.

Barr also gave more details in the written answers on several high-profile topics.

Mueller’s report

Barr laid out his view of the process for making public the contents of the Mueller report at the end of the probe, though he said he does not know “what will be included in any report prepared by the special counsel, what form such a report will take, or whether it will contain confidential or privileged material.”

Barr told senators that the Justice Department regulations say that a special counsel will make a report “explaining the prosecution or declination decisions,” and that it will be handled as a confidential document similar to “internal documents relating to any federal criminal investigation.”

That could mean a limit to the information that ultimately is released, since Barr added that another regulation “cautions prosecutors to be sensitive to the privacy and reputational interests of uncharged third parties,” and that it is policy “not to criticize individuals for conduct that does not warrant prosecution.”

And he said regulations require the attorney general to notify Congress when the investigation ends and allows for public release of information that is in the public interest.

“I believe it is very important that the public and Congress be informed of the results of the special counsel’s work,” Barr wrote. “Where judgments are to be made by me, I will make those judgments based solely on the law and department policy and will let no personal, political, or other improper interests influence my decision.”

Barr also suggested lawmakers could release the information they get, writing that the law “does not restrict what Congress may do with the report” when it comes to nonclassified information.

Sens. Charles E. Grassley, an Iowa Republican, and Richard Blumenthal, a Connecticut Democrat, announced legislation Monday that would require a special counsel report directly to Congress and the public whenever an investigation finishes, or if the special counsel is fired or resigns.

Emergency for border wall

Barr told senators that he is “not in a position to comment” on whether he would advise Trump to invoke national emergency powers to build a wall on the U.S.-Mexico border.

Congress generally authorized the president to declare emergencies, and the president’s decision should be informed by laws, precedents of prior presidents and factual determinations by executive branch agencies, Barr said.

“I have not examined the facts and circumstances pertaining to security on the southern border with this issue in mind, and therefore, I am not in a position to further comment on what would constitute a national emergency,” Barr wrote. “If confirmed, I will ensure that the department’s advice on this subject is consistent with any applicable law, including the National Emergencies Act.”

House Armed Services Chairman Adam Smith, who is holding a hearing on the southern border on Tuesday, has indicated that Democrats plan to take legal action if Trump declares an emergency to pay for the wall.

“There would immediately be a lawsuit,” the Washington Democrat said in a C-SPAN “Newsmakers” interview Friday. “Taking billions out of the Pentagon’s military construction budget would be a big problem, and there’s bipartisan opposition to it.”

Abortion rights

Barr told senators that Roe v. Wade, the Supreme Court’s landmark 1973 decision establishing the right to an abortion, has been “reaffirmed many times” and that “the department has stopped, as a routine matter, asking that Roe be overruled.”

But Barr stopped short of saying he would not advocate to overturn Roe in court.

“I would respond to any case presenting that question by consulting with the Solicitor General and other members of the Executive Branch to determine our position based on the facts of the case, the governing law, and the federal government’s interests,” Barr wrote.

Presidential illegal actions?

Barr told senators that a president could breach his obligation to faithfully execute the laws when it comes to pardons or asking the FBI to drop an investigation, depending on facts and circumstances.

Delaware Democratic Sen. Chris Coons asked whether it would be permissible for Trump to pardon former national security adviser Michael Flynn, former campaign manager Paul Manafort or former personal lawyer Michael Cohen to cover up his own criminal activity.

A president’s constitutional power to pardon is broad, but is subject to abuse, Barr replied.

“A president who abuses his or her pardon power can be held accountable in a number of different ways by Congress and the electorate,” Barr wrote. “And as I explained in my testimony, under applicable Department of Justice policy, if a president’s actions constitute a crime, he or she may be subject to prosecution after leaving office.”

And in response to another Coons question about directing the FBI to stop investigating Flynn in order to hide the administration’s Russia connections from the American people, Barr said that a president could violate the Constitution “if he were to halt a lawful investigation for an improper purpose.”

“The department’s investigative and prosecutorial decisions should always be based on the facts, the applicable law and policies, the admissible evidence, and the Principles of Federal Prosecution (Justice Manual § 9-27.000), and should be made without bias or inappropriate outside influence,” Barr wrote.

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