One thing that can be said about William Barr, whom President Trump has chosen to serve as his next attorney general, is that he knows the ways of the Department of Justice.
Unlike Acting Attorney General Matthew Whitaker, Jeff Sessions’s former chief of staff and a troubling interim replacement in more ways than one, Mr. Barr is intimately familiar with the nation’s chief law enforcement agency, having served as President George H.W. Bush’s attorney general between 1991 and 1993 and as deputy attorney general and assistant attorney general before that.
It was in the earliest role, when Mr. Barr headed the Justice Department’s Office of Legal Counsel, that he provided legal advice to the executive branch and in the process articulated an expansive view of presidential power. His chief thesis, as outlined in a 1989 memorandum he signed, was that the president has exclusive authority given him by the Constitution, and that attempts by Congress to check it — what he called congressional “encroachment” and “incursions” on the executive — must be resisted at every turn.
“Of course, the methods of intruding on executive power are limited only by Congress’s imagination,” Mr. Barr wrote at the time in a seemingly derisive tone. He then listed proposals for how the president could protect his turf — in appointing officials, shielding information from lawmakers and conducting the nation’s foreign affairs.
That should give the Senate, in its confirmation hearings on Mr. Barr, pause. Having been confirmed before will likely smooth the process for the former attorney general. If the past two years have taught the nation anything, however, it’s that the Trump administration needs an attorney general who welcomes more, not less, transparency and accountability for its actions — a legal officer who can provide assurances that the federal government works for the American public and not for any one person.
To that end, Mr. Barr’s writings and constitutional thinking are illustrative and can guide lawmakers as they vet his nomination and determine how he sees the relationship between the Justice Department and the White House, where he feels the department’s priorities should rest, and how he now regards important moments during his last appointment to lead the agency.
It is heartening that Mr. Barr hasn’t come out swinging against Morrison v. Olson, the Supreme Court decision that upheld the legality of the independent counsel law, since lapsed, that gave way to the Justice Department regulations now governing the work of the special counsel, Robert Mueller. But the Republican Party and conservative thinking on independent counsels and special prosecutors have evolved dramatically since the 1980s and ’90s — Justice Brett Kavanaugh, a maximalist on matters of presidential power, has said that he’d “put the final nail” in the Morrison precedent. A number of Republican senators, in opposing a bill to protect the Mueller investigation, have said that the ruling is no longer good law.
The Senate will surely press Mr. Barr on his views on Mr. Mueller’s work as special counsel, and it would be wise to try to extract a vow from him that he will not risk public confidence in the rule of law by undercutting the investigation. That’s what the Senate Judiciary Committee did in 1973 with Elliott Richardson. During Mr. Richardson’s confirmation hearing for attorney general, he promised not to impede the work of the Watergate special prosecutor, Archibald Cox — only to find himself fired by President Richard Nixon when he refused an order to fire Mr. Cox.
At the end of President Bush’s term, Mr. Barr had a hand in several misguided pardons related to the Iran-contra scandal, a precedent that has had lasting consequences, including under Mr. Trump. How does he judge those decisions now? Does he regret any of them? Do they inform how he sees the Russia investigation?
Of course, the attorney general’s jurisdiction extends far beyond the Russia investigation. He also oversees civil rights enforcement, the immigration bureaucracy and the priorities of federal prosecutors across the country. In these and other fields, his predecessor, Mr. Sessions, did more damage than Mr. Trump ever gave him credit for.
Mr. Barr can be expected to pursue many of the same policies as the attorney general he would be replacing. In an opinion piece published just after Mr. Sessions’s November resignation, Mr. Barr and two other Republican former attorneys general praised him as “an outstanding attorney general.”
Joining with Edwin Meese III and Michael Mukasey, who served at the Justice Department under Presidents Ronald Reagan and George W. Bush, Mr. Barr said approvingly that Mr. Sessions toughened charging practices against drug dealers and cracked down on government leakers.
Mr. Barr also endorsed Mr. Sessions’s policies favoring vendors who did not want to “participate in activities” that violate their religious beliefs and businesses that did not want to provide insurance plans that included contraceptive coverage for employees.
And he approved of Mr. Sessions’s approach to immigration.
“He attacked the rampant illegality that riddled our immigration system, breaking the record for prosecution of illegal-entry cases and increasing by 38 percent the prosecution of deported immigrants who re-entered the country illegally,” he wrote. (Unsaid in this assessment is that these prosecutions, which diverted resources from other border priorities, were part of Mr. Sessions’s “zero tolerance” policy that led to the separation of scores of migrant children from their parents.)
Does Mr. Barr intend to continue to pursue these misguided priorities, which have driven down morale among the rank-and-file and even prompted resignations of key career officials at the Justice Department?
Mr. Barr likewise should account for comments he made to The Times last year about his support for using department resources to investigate Mr. Trump’s pet causes and his separate defense of the president’s decision to fire James Comey — each of which calls into question his commitment to an impartial view of justice.
During the Bush years, Mr. Barr maintained that his allegiance didn’t rest with the president who appointed him but rather with the rule of law.
That was then. If confirmed as the 85th attorney general of the United States, he will be serving a chief executive who thinks he is the law — and who has made clear that he thinks the attorney general ought to function more like his lawyer than the public’s.
Dec. 7, 2018