January 29, 2019

Feinstein Speaks On Barr Nomination, Judicial Nominees

Washington—Senate Judiciary Committee Ranking Member Dianne Feinstein (D-Calif.) today spoke on the nomination of Bill Barr to be attorney general and judicial nominees:

“I am very concerned about Mr. Barr’s memo on Special Counsel Mueller’s investigation into obstruction of justice. The weekend before the hearing, I spent Saturday and Sunday on that 19-page memo, written approximately six months before he was nominated for his position. I have never seen anything like it.

Five months before being nominated, Mr. Barr wrote a 19-page memo that outlined a comprehensive argument defending the unitary executive.

In his memo, Mr. Barr made clear that an all-powerful president can fire executive officials and direct prosecutions, including when the investigation may implicate the president himself or his interests.

This memo is of serious concern to me and appears to be seminal in his appointment to this position. If this view is applied in the current context there would be little check on the president's actions.

We have seen historically what can happen when a president has tried to interfere with law enforcement investigations from Watergate to the U.S. attorney firings. It’s is important to note, the president, while having significant discretion over hiring's and firing's and directing the executive branch, does have limits.

In addition, Mr. Barr argues, for example, that “the ‘conflict of interest’ laws do not, and cannot, apply to the president,” and that “the Constitution itself places no limit on the president’s authority to act on matters which concern him or his own conduct.” That’s something that should trouble all of us and is why I focused so many of my questions at the hearing on the memo and the Mueller investigation.

I was pleased Mr. Barr committed, without reservation, Mr. Chairman, to ensuring that Special Counsel Mueller is allowed to complete his investigation without interference.

However, I remain concerned about what Mr. Barr outlined in his memo on limits to the scope of what Counsel Mueller can pursue. As Mr. Barr noted his memo focused squarely on the issue of obstruction of justice. Yet, last week the Mueller team issued indictments for another individual affiliated with the Trump campaign that specifically addressed obstruction of justice.

I’m troubled by the idea that the individual seeking to oversee this investigation has predetermined whether allegations can even be pursued. I’m also concerned about whether Mr. Barr will make the Mueller report available.

When I first asked Mr. Barr about this, he gave a strong answer about the need to provide information and his commitment to as much transparency possible.

However, as the hearing continued, Mr. Barr’s answers seemed to become more qualified. He began making a distinction between reporting on potential disagreements with Mr. Mueller and the final report on Mueller's findings and recommendations.

Mr. Barr also seemed to indicate he would write a separate report that he would provide to Congress instead of Mr. Mueller’s report as submitted. That needs to be fleshed out, and we need to know whether this is, in fact, how he’s going to proceed. I hope it is not.

This is the biggest issue facing our country and the American people deserve to know Mueller’s findings and analysis without any filter.

My Republican colleagues have suggested that the Special Counsel’s regulations prohibit the Justice Department from providing the Special Counsel’s report to Congress. That is not the case.

The regulations require the special counsel to provide a “confidential report” to the attorney general. Those regulations do not prohibit him from sharing this report with Congress. To the contrary, as part of its oversight responsibilities, Congress requests—and the Justice Department provides—confidential information related to closed investigations all the time.

In fact, over the past two years, the majority has frequently sought and received confidential information related to several investigations of Hillary Clinton. For example, the majority has asked for witness interview transcripts, classified appendices to the Justice Department Inspector General’s report, as well as classified documents from the Treasury Department and the FISA court.

Special Counsel Mueller’s final report, and information about his investigation, should be treated no differently. I have written to Mr. Barr asking him to clarify his position on the Mueller report. I have not yet received a response, and I would, at this time, like to submit that letter to the record.

As I mentioned at the beginning of my statement, the committee is also considering 44 judicial candidates that the White House re-nominated. I understand it’s not unprecedented to have a large agenda of re-nominees at the beginning of Congress, I’m am concerned that the committee has been moving at such a pace and without the traditions that have been in place that ensure proper vetting and strong candidates.

For example, four circuit court nominees on the agenda lack support from home-state senators and do not have their blue slips. It’s very clear that when blue slips are honored, administrations – including this one – work with the home-state Senators. We see this even now on the district courts.

One of this committee’s most important responsibilities is to review and evaluate the president’s nominees for lifetime appointments to the federal courts. I hope this committee will recommit to moving well-qualified, consensus nominees.”