The news world is ravenously awaiting the release of special counsel Robert Mueller’s report on Russian election interference.
But Attorney General William Barr’s two trips to the Capitol last week strongly suggest that the version of the report he releases will only whet the appetites of many in Congress and beyond for more information.
That means the tension between President Trump and Congress is likely to escalate into a constitutional confrontation involving the competing authorities of at least two branches of government.
As these storm clouds gather, Barr has signaled that he will play a rather different role from recent predecessors who were caught between warring executive and legislative powers in this lawyerly version of Game of Thrones.
Barr clearly intends to be at the center of the storm. And perhaps he has meant to be so ever since he sent a 19-page critique of the Mueller investigation to the Justice Department nearly a year ago, calling its approach to obstruction-of-justice charges “fatally misconceived.”
That memo was a precursor to the four-page letter that Barr sent to Congress last month after reviewing the Mueller report. In that letter, Barr looked at the Mueller report’s inconclusive statement on obstruction and determined that there was no case for obstruction.
Mueller explicitly said his report was not exonerating the president on obstruction, but Barr decided it was. And last week, Barr told the Senate Judiciary Committee that he did not want to discuss that element of the conflict at hand.
That prompted House Speaker Nancy Pelosi, D-Calif., to say Barr was acting more like an attorney for the president than as the attorney for the United States.
Not every observer will go that far, but Barr must have known he was opening himself up for exactly that kind of attack. In past crises of this kind, his predecessors as attorney general have often tried to either find a middle ground or distance themselves from the mortal combat between occupants of the White House and the Capitol.
Typically, they have had close ties to the president who appointed them, yet most have looked to position themselves on higher ground — or what at least appeared to be safer ground.
Take Barr’s luckless immediate predecessor, Jeff Sessions. As a multiterm Republican senator from Alabama, Sessions was the first in his chamber to endorse Donald Trump for president. That got him a formal role in the Trump campaign and, after the election, the Cabinet job he had always wanted most — attorney general.
But Sessions’ time in his dream job was cut short. It turned out that he and his boss had failed to communicate on the matter of Russian interference in the 2016 election and the probe the FBI had already begun. To the president’s surprise, Sessions felt he had to respect Justice Department rules and recuse himself from the Russia probe because he had been part of the Trump campaign.
This left his deputy, Rod Rosenstein, to appoint a special counsel to run the probe after Trump fired FBI Director James Comey.
That’s how Mueller came on the scene, deepening and widening the investigation into the Russian efforts and many tangential issues as well. Unable to stop Mueller, Trump turned his rage on Sessions for his decision to recuse himself. The Alabamian endured months of public criticism, personal insults and Twitter rants, only to be unceremoniously forced out right after the 2018 midterm elections.
Sessions’ predecessor was President Barack Obama’s second attorney general, Loretta Lynch, who was in office when the Russia probe began and when the FBI was also looking into Democratic presidential candidate Hillary Clinton’s use of a private email server when she was secretary of state.
In the more normal course of things, that FBI report would have gone to Lynch, who would have determined whether to prosecute. But Lynch turned the matter over to FBI Director Comey, at least in part to avoid the blowback from her own ties to the Clintons. (Former President Bill Clinton had briefly met with her privately on an airport tarmac in the spring of 2016.) Comey declined to recommend prosecution in that case, but he also leveled a broadside at Clinton for “extremely careless” handling of the matter. Later, just weeks before the election, he briefly indicated that his investigation might be reopened (he subsequently said no new evidence had been found to necessitate reopening the case).
President George W. Bush had problems with his attorney general picks too. The first, former Sen. John Ashcroft of Missouri, set off on a number of crusades of his own, then balked at his boss’ efforts to use U.S. intelligence agencies to spy on potential terrorists inside the country. (He was bolstered in that reluctance by his deputy, who was Comey.)
In 2005, Bush named his second attorney general, longtime Texas crony Alberto Gonzales. But Gonzales ran into trouble carrying out what appeared to be White House orders to purge U.S. attorneys around the country who failed to find voter fraud cases to prosecute after being told it was a priority. Gonzales resigned in September 2007, after Democrats had taken over both chambers of Congress and launched a series of hearings.
As president, Bill Clinton had one attorney general, Janet Reno, for all eight of his years in office. But Reno was often remarkably independent, not least in appointing a special counsel in 1994 to investigate Clinton’s real estate deals in Arkansas. Her first appointee found little to prosecute, but Congress reauthorized the probe and a panel of federal judges appointed a new special counsel named Ken Starr, who took the probe in new directions.
One of those directions turned up former White House intern Monica Lewinsky, who said she had a sexual affair with the president. Clinton’s denials and testimony to a grand jury led to his impeachment by the House in 1998. While Reno had not appointed Starr or otherwise directly contributed to Clinton’s impeachment, she could scarcely be seen as his fiercest defender.
The classic case of a president’s fraught relationship with his attorneys general had to be Richard Nixon and the five men who served him in that capacity. The first was his old law partner, John Mitchell, who had the job for three years before resigning to run Nixon’s re-election campaign.
That campaign turned out to include burglaries and other forms of “dirty tricks” that begot the upheaval known as the Watergate scandal. Mitchell would eventually serve 19 months in federal incarceration for his role in the original Watergate burglary and cover-up.
Nixon’s second attorney general, Richard Kleindienst, inherited the burgeoning scandal and was considered a team player. But he also let the Watergate investigation go forward. He resigned in the spring of 1973 as the evidence began to point back at the president himself.
Nixon then appointed Boston Brahmin Elliot Richardson as attorney general in hopes of easing the pressure on Watergate. But Richardson brought in Archibald Cox as special prosecutor. Cox was a dogged investigator who would soon subpoena the tape recordings from Nixon’s Oval Office. Nixon ordered Richardson to fire Cox, and Richardson resigned instead, as did his deputy, William Ruckelshaus (these events on one October weekend in 1973 were known as the Saturday Night Massacre).
Nixon finally managed to get Cox fired, but to do so he had to go to the Justice Department’s third-ranking official, Solicitor General Robert Bork. Nixon was surprised by the negative reactions from Congress and much of the public, and Bork persuaded him to name a new special prosecutor, the conservative Texas Democrat Leon Jaworski. The new man had said he considered the whole Watergate scandal overblown, but once installed as Cox’s successor, he came to see the evidence differently. He made a number of cases and made them stick in federal court.
Given this variegated history of positions taken by some of the more prominent attorneys general over the past half-century, it was striking to note the “all-in” character of Barr’s testimony last week.
Appearing before the House and Senate judiciary committees, Barr once again displayed the attitude that the nearly 400-page report and its supporting documents are the exclusive property of the Justice Department, headed by himself. Access for all others will be at his discretion.
As before, Barr says any release must await the scouring of every page for problematic or sensitive material — of which there are several varieties. Few might dispute the need to black out uncorroborated grand jury testimony or secret material legitimately affecting national security. But Barr has also made clear he will protect “peripheral third parties” and other matters he deems sensitive. And those determinations will be made by Barr, perhaps in concert with lawyers working for him.
As for those people in Congress eagerly awaiting the report, Barr said he would be willing to work with the chairs of the judiciary committees in both chambers to see if they might glimpse portions of the report not being made public.
But House Judiciary Committee Chairman Jerry Nadler and Senate Judiciary Committee Chairman Lindsey Graham both have marked out positions of their own on this issue, each asserting more of an outright claim on Mueller material than Barr seems to want to admit.
Nadler, a New York Democrat, said his committee has a right to the whole report and all its underlying documents. Graham, a South Carolina Republican, has strongly suggested he expects to get the real goods too, while being careful not to sound at odds with the attorney general. Graham has gone from being an acerbic Trump critic in 2016 to being one of Trump’s strongest advocates.
None of this should be surprising. Barr has been on the job for just over two months, after Trump announced in December his intention to nominate Barr. Even then it was widely understood that Barr’s job would be to take the Mueller investigation in hand. Having not been involved in the 2016 Trump campaign, he had no obligation to recuse himself from the Russia probe the way his predecessor had.
But Congress does have an administrative responsibility over the courts and the legal system. If the president cannot be indicted by the executive branch — which is the policy position long asserted by Barr’s department — then only Congress has the power to contemplate any action against the president.
Even Trump-friendly Graham has made this point, telling Barr that he risks seeming less than forthcoming if he withholds too much of the report. “If you agree you can’t indict the president, it’s probably not a good reason not to share with us the derogatory information and executive privilege. You have to really watch about that being used to deny transparency,” Graham said.
In other words, Congress has a right and an obligation to examine the evidence — whatever it is. That makes the disposition of the Mueller report fundamentally a matter of constitutional checks and balances.
Some say Congress would need to initiate impeachment proceedings before it could assert its claim on that evidence. But others argue the claim is rightful, legitimate and timely even now. In effect, they would argue Barr should have turned over what he got from Mueller as soon as Congress requested it — even while making the redactions he sees fit to make.
Some form of compromise might eventuate here, but it is more likely that this dispute will reach the Supreme Court. If so, it may be the most explosive of all the hand grenades that are expected to be landing in the high court’s black-robed lap in the months just ahead.