Updated 3:40 p.m. | The Senate Judiciary Committee will press attorney general nominee William Barr about a possible “ginormous loophole” in his commitment to make public what the special counsel investigation finds about President Donald Trump.
Committee member Sen. Sheldon Whitehouse, a Rhode Island Democrat, on Tuesday highlighted two possible ways in which Barr’s commitment to transparency could actually mean he would release no information about Trump or anyone else who is not charged with a crime.
Senate Democrats have made release of information about special counsel Robert S. Mueller III’s investigation — which has resulted in indictments of Trump’s former campaign manager, personal lawyer, national security adviser and informal aide — a central issue to whether Barr should be confirmed as the nation’s top law enforcement official.
Chairman Lindsey Graham of South Carolina said during Tuesday’s committee hearing that the potential loopholes are “a good question to get answered” and said he would ask Barr.
“You could use those two things to really shut down what the public gets,” Graham said.
After the hearing, however, Graham said the issue was not enough to derail the committee vote, which has now been officially set for Feb. 7.
The issue comes down to what Barr meant when he told the committee that he would be as transparent as possible “consistent with the law” when it comes to the report Mueller would submit to him at the end of the investigation.
Whitehouse said lawyers know “there are weasel words that can be put into sentences, and the question of what transparency is ‘consistent with the law’ is a ginormous loophole in his transparency pledge.”
That’s because Barr also told the committee that Justice Department policy is to not release derogatory investigative information about people who are not charged with a crime. And there’s a decades-old internal DOJ legal opinion, never tested in court, that a sitting president cannot be indicted.
“What if there actually is an indictment-worthy case to be made, and they then take the position that, ‘Well, he’s an uncharged person and therefore this is derogatory information and we’re not going to talk about it,’” Whitehouse said.
Whitehouse also noted that Barr could determine that an assertion of executive privilege by the White House could be consistent with the law. “That takes the transparency of the report out of the special counsel process in the hands of the attorney general, and moves it over to White House counsel,” Whitehouse said.
Graham told reporters after the meeting that those questions “make sense.”
When it comes to the DOJ opinion that a sitting president cannot be indicted: “Should that be used as a reason to deny disclosure of information? Probably not,” Graham said.
And Graham said the White House has a right to claim executive privilege, “and how you balance that claim against transparency, I’d like to know more about how he would evaluate that process.”
Whitehouse asked for answers from Barr on his concerns before the committee vote next week.
This story has been updated to reflect the official date set for the committee vote.
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