It wasn’t hard to understand why President Trump nominated William Barr to be the next attorney general. Barr is a big fan of executive privilege, sought to fire a special counsel while serving under George H.W. Bush and, more recently, has criticized the Justice Department for looking into the Trump campaign’s ties to Russia instead of investigating Hillary Clinton. On Wednesday, the Wall Street Journal reported that Barr’s misgivings about the Mueller probe go deeper than the stray quotes he’s given to news outlets. According to the paper, Barr wrote an “unsolicited” 20-page memo to the Justice Department earlier this year in which he argued that the probe arose out of a “fatally misconceived” theory. He told Trump about it, too.
Senate Democrats found the fact a nominee for attorney general went out of his way to bash an investigation he would be overseeing if confirmed more than a little concerning. “We need answers as to why William Barr proactively drafted a memo against Special Counsel Mueller’s investigation,” tweeted Sen. Diane Feinstein (D-CA). “There’s no reason for a lawyer in private practice to do this unless he was attempting to curry favor with President Trump.”
We need answers as to why William Barr proactively drafted a memo against Special Counsel Mueller's investigation. There’s no reason for a lawyer in private practice to do this unless he was attempting to curry favor with President Trump.
— Sen Dianne Feinstein (@SenFeinstein) December 20, 2018
Barr’s conflict of interest regarding the Mueller investigation will be a focal point of his upcoming confirmation hearing. Barr is aware of this and, according to the WSJ, spoke to Trump about the memo and how it could be an issue throughout the confirmation process. It might not matter, as by the time the Senate votes on his appointment, Republicans will have a 53-47 advantage over Democrats. This means that four GOP senators would need to vote against Barr, as Vice President Mike Pence would cast the tie-breaking vote if the tally was 50-50.
If Barr is confirmed, it’s hard to argue he shouldn’t recuse himself from overseeing the Mueller investigation, given the nature of his remarks and, now, the memo. He certainly won’t do it voluntarily, as Jeff Sessions’ decision to recuse himself from handling the investigation in March 2017 drew the ire of Trump and, ultimately, led to his resignation the day after the 2018 midterm elections.
Barr’s views on executive power have long been at the extreme end of the spectrum. But for him to have argued the merits of this specific case – on Trump’s behalf, to Rosenstein, with Trump’s counsel (and presumably Trump) knowing he did it – means he needs to pledge to recuse.
— Matthew Miller (@matthewamiller) December 20, 2018
The current attorney general, Andrew Whitaker, also has a rich history of opposing the special counsel’s investigation, and many have questioned whether he is feeding the president information regarding the investigation’s developments. On Thursday morning, CNN reported that ethical officials inside the Justice Department advised Whitaker that he does not need to recuse himself from overseeing the probe. A senior Justice Department official did, however, in an “abundance of caution” recommend Whitaker recuse himself given his past statements regarding the probe.
Again, Democrats are concerned, especially considering the murkiness of the process that led to the opinion. According to CNN, after the aforementioned DOJ official recommended recusal, a “tight group of Whitaker’s advisers” who were “heavily involved” in the review process “did their own review and ultimately recommended he not recuse himself.” Based on this recommendation, Whitaker will continue to oversee the investigation. “This ethics opinion must be shared with Congress. Now,” tweeted Rep. Adam Schiff (D-CA), the incoming chair of the House Intelligence Committee. “DOJ officials must avoid not only actual impropriety but the appearance of impropriety. Given Whitaker’s prejudicial comments about Mueller, the public can have no confidence in him. We will scrutinize his every action.”