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At This Hour

Attorney General Nominee William Barr Confirmation Hearing. Aired 11-11:30a ET

Aired January 15, 2019 - 11:00   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

[11:00:00]

BARR: That's right, senator. One of the reasons I ultimately decided that I -- I would accept this position if it was offered to me was because I was -- I feel that I'm in a position to be

independent.

You know, over the years a lot of people have -- some -- some politicians have called me up saying, you know I'm thinking of going for the Attorney General position in this administration, and so forth. And I say you're crazy.

Because if you view yourself as having a political future down the road don't take the job, because if you take this job you have to ready, you know, for -- to -- to make decisions and spend all your political capital and have no future. Because you have to do -- you have to have that freedom of action.

And -- and I feel I'm in a position in life where -- where I can do the right thing and not really care about the consequences, in the sense that I don't -- I -- I can truly be independent.

CORNYN: Mr. Barr, thinking back about the run-up to the 2016 election, where the nominee of both political parties for President of the United States ended up being investigated by the FBI, can you think of any precedent in American history where that's occurred that you know of?

BARR: No, I can't, senator.

CORNYN: And thinking back to James Comey's press conference of July the 7th, 2016 where he took the step of talking about the evidence against Mrs. Clinton, talking about the legal standard that would apply as to whether she might or might not be indicted for committing a crime under the Espionage Act.

Have you ever seen a situation where an FBI Director would usurp the authority of the Department of Justice to make that charging decision, and hold a press conference and talk about all of the derogatory information that the investigation had gleaned against a potential defendant, and then say now we're -- we're not going to -- no reasonable prosecutor would indict her. Have you ever seen anything like that happen before?

BARR: No, I've never seen that. And I -- I thought it was a little bit -- more than a little bit -- it was weird at the time. But my initial reaction to it was -- I think Attorney General Lynch had said something -- you know she was under pressure to recuse herself I think because of the so-called "Tarmac Meeting" and I think she said something like she was going to defer to the FBI.

So my initial reaction to that whole thing was, well, she must have agreed or it must have been the plan that he was going to make the decision and go out and announce his decision.

But...

CORNYN: Under -- under the normal rules that the -- if the Attorney General is -- has a conflict of interest...

BARR: It would go to the deputy.

CORNYN: ... it would go to the deputy...

BARR: Correct.

CORNYN: ... not to the FBI Director to make that decision, correct?

BARR: Right, so that's why I thought it was very strange. But I think later it became clearer, to the extent there's anything clear about it, that -- I don't -- I don't think Attorney General Lynch had -- had essentially delegated that authority to the director. And I think Jim Comey is a -- as I've said is an extremely gifted man who's served the country with distinction in -- in many roles. But I thought that to the extent he -- he actually announced a decision was wrong.

And the other thing is, if you're not going to indict someone, then you don't stand up there and unload negative information about the person. That's not the way the Department of Justice does business.

CORNYN: I was shocked when Mr. Comey later wrote a letter saying that based on the discovery of Clinton e-mails on the Weiner laptop, that they were re-opening the investigation that he had announced closed. And then finally, just days before the general election, November 6, 2016, said we didn't find anything in the -- on the laptop that would change my conclusions based on the press conference of July the 6th.

Did you likewise find that to be an extraordinary -- I wouldn't (ph) use the word bizarre, but certainly unprecedented event?

BARR: Yes, the whole sequence was very herky-jerky and bizarre. But at that time I was a little of contrarian in that I basically took the position that once he did what he did in July, and said the thing was over, and then found out it wasn't over, he -- you know, he had no choice but to correct the record.

[11:05:00] So I said that he had no choice but to do what he did. But it sort of shows you what happens when you start disregarding the normal procedures and established practice, is that you sort of dig yourself a deeper and deeper hole.

CORNYN: Why is it that the Department of Justice rules, which also apply to the FBI, make it clear that our chief law enforcement agencies in this country should not get tangled up in election politics? Are there policies in place that try to insulate the investigations and the decisions of the Department of Justice and FBI from getting involved in elections?

BARR: Yes, senator, there are...

CORNYN: And why is that?

BARR: Well, obviously, because the incumbent party has their hands on the -- among other reasons, they have their hands on the levers of the law enforcement apparatus of the country and you don't want it used against the opposing political party.

CORNYN: And that's what happened when the counterintelligence investigation of the Trump campaign began in late July and continued on through -- well, presumably, to Director Comey's firing and beyond.

BARR: Well, I'm not in a position to make a judgment about it because I don't know what the predicate was for it. I -- I think I said, you know, it's -- it's strange to have a counterintelligence investigation of a president. But I'm not -- I just don't know what the predicate is and -- and, if I'm confirmed, I assume I'll find out.

CORNYN: Rod Rosenstein's memo recommending the termination of James Comey as FBI director was dated May the 9th, 2017. Its entitled, "Restoring Public Confidence in the FBI." I take it you've read the memo and do you agree with its conclusion?

BARR: I completely agree with Ron Rosenstein. And I thought the important point he made from my standpoint was and not the particular usurpation that occurred. But it was, as I think he says, that -- that Director Comey just didn't recognize that that was a mistake, and so it was going to potentially be a continuing problem that -- his appreciation of his role vis-a-vis the attorney general.

CORNYN: As I've said, the title of the memo is "Restoring Public Confidence in the FBI." Do you agree that restoration of public confidence in the FBI and Department of Justice as a, apolitical or nonpolitical law enforcement organization is important?

BARR: It's critical...

CORNYN: And needed?

BARR: It's critical and that's one of the reasons I'm sitting here, I'd like to help with that process.

CORNYN: Mr. Barr, I think you're uniquely qualified to do that and I wish you Godspeed.

BARR: Thank you, senator.

CORNYN: It couldn't be more important. Thank you.

GRAHAM: (OFF-MIKE) Senator Durbin. DURBIN: Mr. Barr, we've never had a chance to meet, but I welcome you to this committee.

BARR: Thank you.

DURBIN: You seem like a rational person, I'd like to ask you a question.

When you consider what Jeff Sessions went through as the attorney general for President Donald Trump, where he was subjected to unrelenting criticism primarily because, as a matter of conscience, he decided he has a conflict of interest and should remove himself from any decisions by the special counsel concerning the Russia investigation. When you consider that this president has lashed out on personal basis against federal judges who ruled against his administration, when you consider the criticism which he has leveled at the chief law enforcement investigative agency of the Department of Justice, the FBI as well as our intelligence agencies, when you see the exit lanes glutted with those leaving the White House at every single level, why do you want this job?

BARR: Well, because I love the Department I -- and -- and all its components including the FBI. I think they're critical institutions that are essential to preserving the rule of law, which is the -- the heartbeat of this country.

And I'd like to think that there was bipartisan consensus when I was last in this position that I acted with independence, and professionalism, and integrity, and I had very strong and productive relationships across the aisle, which -- which were important I think to trying to get some things done. And I feel that I'm in a position in life where I can provide the leadership necessary to protect the independence and the reputation of the Department and serve in this administration.

[11:10:00] DURBIN: A number of my colleagues on both sides have asked -- and I'll bet you'll hear more questions long line of what would be your breaking point? When would you pick up and leave? When is your Jim Mattis moment when the president has asked you to do something that you think is inconsistent with your oath? Doesn't that give you some pause as you embark on this journey?

BARR: It might give me pause if I was 45- or 50-years-old. But it doesn't give me pause right now because I had -- I had a very good life -- I have a very good life. I love it.

But I also want to help in this circumstance and I am not going to do anything that I think is wrong. And I will not be bullied into doing anything I think is wrong by anybody, whether it be editorial boards, or Congress or the president, I'm going to do what I think is right.

DURBIN: You have a very nice family behind you I'm glad you introduced (ph)...

BARR: Thank you. DURBIN: And I don't want to give your grandson any career advice; he's received this morning already. But he ought to consider, at least for some balance, being a public defender.

urse not.

BARR: OK. And you have to be processed. And my understanding is a majority of people do not qualify for asylum.

But the DHS makes a decision who to hold and -- and charge with the crime of illegal entry, and then they referred to the Department of Justice. And I believe the Department's policy when they say -- when the Department says zero tolerance, they're saying whatever DHS refers to us in the way of illegal entry prosecutions, we'll prosecute now. Now, what is being done -- because I think the administration has changed the policy -- is DHS is not referring for prosecution of family units that would lead to the separation of children.

DURBIN: It -- it's true that the president and the administration abandoned the policy after there was a public reaction to the separation of these children.

I'm concerned -- I want to go back to your University of Virginia Miller Center speech, which is...

BARR: It's a gem, isn't it?

(LAUGHTER)

[11:15:00] DURBIN: It's a classic and it goes back many years. But you described your previous tenure as attorney general. And you said, after being appointed, I quickly develop some initiatives on the immigration issue that would create more border patrols, change immigration rules, streamline processing.

It would furthermore put the Bush campaign ahead of the Democrats on the immigration issue, which I saw was extremely important in 1992. I felt that a strong policy on immigration was necessary for the president to carry California, the key state in the election. That's a pretty revealing statement about a political agenda.

BARR: Yes, there's -- and there's nothing wrong with that because, as I've said, the attorney -- and -- and I've spoken on this a number of times. There sort of three roles the attorney general plays. One is the enforcer of the law, and that -- the role of the attorney general is to keep the enforcement process sacrosanct from political influence.

The second one is as legal adviser, and that is in the Judiciary Act of 1789; legal adviser to the president and cabinet. And there I say the attorney general's role is to provide, you know, unvarnished, straight from the shoulder legal advice as to what the attorney general believes is the right answer under the law.

And then the third role is the policy role, which is law enforcement policy which includes immigration policy, and there are you are a political subordinate of the president and it's OK to propose policies are politically advantageous.

DURBIN: Well...

BARR: But I have to say that, you know, that was a casual conversation.

The point was I was pursuing a strong immigration policy even when I was deputy long before the election was on the horizon. And in traveling around the country, visiting the border, paying a lot of visits to California, I saw how important the issue was and I thought the administration had to be more responsive to it. And yes, there was a political benefit to it.

DURBIN: I just have a short time left.

The chairman -- our new chairman, congratulations -- Graham, noted 10 years of work by a number of us on this committee on a bipartisan basis, deal with criminal sentencing, prison reform. And the First Step Act signed by the president around Christmas, I think is a significant departure.

I learned, as many have that the approach -- the get-tough approach that we imposed with 100-to-1 sentencing disparity between crack and powder, didn't work; it did not work. The number of drugs being sold on street increased, the price of the drugs went down. The people being incarcerated went up dramatically.

And we learned the hard way that was not the way to deal with the issue. And now we're trying to clean up 10 years later -- more -- 25 years later from 100-to-1 disparity.

I voted the wrong way, 100-to-1; now, I know in retrospect. You have made some hard-line statements about this issue, criminal sentencing in the past. And many of us believe on a bipartisan basis, we've got to look at this anew and not repeat these mistakes again. So I would like to hear your assurance that you are -- you have learned, as I have, that there is a better way, could be a more effective way, and that as attorney general you will help us implement the First Step Act and design the second step.

BARR: Absolutely, senator.

From my perspective, the very draconian penalties on crack were put into place initially because when the crack epidemic first hit, it was like nuclear weapons going off in the inner city. And as I think you'll recall, a lot of the community leaders at the time -- that time were you've got to (ph) -- you know, this is killing us, you have to do something. So the initial reaction of draconian penalties was actually trying to find help those communities.

And over time, and now, the same leaders are saying to us this has been devastating, you know, generation after generation of -- of our people are being incarcerated -- have been incarcerated and lost their lives because of this. And you have to change the policies. And I think that that is -- we should listen to the same people we were listening to before. I -- I -- I supported generally strong penalties on drugs because -- not just crack -- because I felt the money involved was so high that, you know, you needed something to counteract that.

I also said repeatedly over the years on the drug war that I felt that the head of the snake is outside the country. And the place to fight this aggressively is at the source more than on the street corner. And I used to say we could, you know, stack up generation after generation of people in prison and it'll -- it'll still keep on coming. And so I always felt that -- and -- and I support a adjustment to these sentences, and the safety valve and so forth.

[11:20:00]

To me the corollary is we have to really start thinking and using all our national forms of power in the sense of our diplomacy, and our -- and our economic leverage and so forth, to get better results overseas. So for example, now fentanyl is sort of the new -- fentanyl and fentanyl analogs are sort of the new crack, and they're coming in from China. So...

DURBIN: Across the Mexican border?

BARR: Correct. Correct.

DURBIN: At ports of entry, 90 percent.

BARR: Yes. So -- and that's a longwinded answer to your question, which is I understand that things have changed since 1992. I, you know, I held on a little bit longer to keeping strong sentences maybe than others, part of that was I wasn't involved in the business anymore. I -- I wasn't at the Justice Department looking at reports and studies, learning about different things in the country. I was, you know, arguing with the FCC about telecommunications rules. So...

GRAHAM: Mr. Barr.

BARR: Yes?

GRAHAM: That was a great answer and it was longwinded.

BARR: OK.

(LAUGHTER)

GRAHAM: Senator Lee. After this, we'll break until 12:15 for lunch and our comfort break.

LEE: Mr. Barr, thank you very much for your willingness to spend time with us today and your willingness to be considered for this important position yet again.

BARR: Thank you.

LEE: Great to have your family here. And I -- I can't help but comment that a lot of people have talked about Liam today -- [11:21:40]

KATE BOLDUAN, CNN ANCHOR: We have been watching the attorney general -- the nominee to be attorney general, Bill Barr, in questioning before the Senate Judiciary Committee.

We'll be right back.

(COMMERCIAL BREAK)

[11:26:14] BOLDUAN: Let's get back to Capitol Hill and the questioning of attorney general nominee, Bill Barr.

LEE: -- the anti-trust subcommittee. As I'm sure you are aware, there are a growing number of people who take the position to embrace the view point that we should use anti-trust law to address a whole host of social and economic forms to, among other things, to ensure that companies respect the First Amendment or to prevent large companies from becoming too big or to shape labor markets or to conform industries to a particular aesthetic or achieve some other broadly defined social interest.

I'd like to know what your view on it is on this. Is -- are you a believer in the sort of big is bad mentality, or do you gravitate more toward the idea that our antitrust laws are there to protect consumers and should focus on consumer welfare and prices that consumers face?

BARR: Yes. I mean, generally, that's where I stand, which is the purpose of the antitrust laws obviously is to protect competition. And that competition -- it is competition that ultimately redounds to consumer benefits.

At the same time, I'm sort of interested in stepping back and re- assessing, or learning more about how the Antitrust Division has been functioning and -- and what their priorities are. I don't think big is necessarily bad but I think a lot of people wonder how such huge behemoths that now exist in Silicon Valley have taken shape under then nose of the antitrust enforcers.

And they're -- and, you know, you can win that place in the market -- in the marketplace without violating the antitrust laws. But I -- I want to find out more about that dynamic.

LEE: Right. Yes, and in some circumstances a company that becomes too big ends up behaving in a way and exerting market dominance in a way that impairs consumer welfare anti-competitively. In other circumstances, consolidation can bring about lower prices and increase competition.

I assume you wouldn't disagree with either of those statements?

BARR: No, senator.

LEE: As -- as you know, and as several of my colleagues have mentioned, President Trump signed into law the First Step Act about a month ago. This is legislation that I applaud and legislation that I've been working on in one way or another for -- for eight years. And I was pleased to team up with -- with Senator Grassley, Senator Durbin, Senator Booker and others to work on that over the course of many years.

As you know, the attorney general has an important role under the First Step Act in appointing members to something called the independent review commission. That independent review commission will make recommendations concerning which offenders might be eligible for earned credits under this legislation and which programs will be approved.

The -- when we drafted this legislation, there were some members who were concerned that the -- whoever was the attorney general at the time of this law's passage and implementation might be able to undermine the effectiveness of this law by appointing members who didn't agree with or believe in the objectives of the bill.

[11:29:58] So will you commit to me, Mr. Barr, that you will appoint people to that independent review commission who are honest brokers to decide which offenders should be eligible and which programs should be eligible to participate?