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William Barr's Hearing On Capitol Hill. Aired 10:30-11a ET

Aired January 15, 2019 - 10:30   ET

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

[10:30:00]

FEINSTEIN: Have you discussed the Mueller investigation with the president or anyone else in the White House?

BARR: I discussed the Mueller investigation but not in -- not in any particular substance. I can go through my conversations with you if you want.

FEINSTEIN: Well, not at this time, but I may come back to you...

BARR: OK.

FEINSTEIN: ... and ask you about that. I don't want to take any more time.

Thank you, Mr. Chairman.

GRAHAM: Senator Grassley.

GRASSLEY: Before I ask my first question, and I don't want you to respond to this, I just want you to know what my interest is in the transparency of the Mueller report. When we spend 35 -- I don't know if it's $25 million or $35 million, the taxpayers -- that's billions of dollars, the taxpayers ought to know what their money was spent for.

So if you've got some reservations about some part of it not being public, I hope that that's related to traditional things of the public's business that shouldn't be public like national security, as an example, not being made public. But beyond that, the only way I know for the taxpayers to hold anybody that spends the taxpayers' money responsibly, is through transparency because that brings accountability.

GRASSLEY: My first question, in -- as you would expect from our conversation in my office -- in '86 Reagan signed the False Claims Act. I worked hard to get that passed, especially provisions empowering whistleblowers to help government identify fraud. More than a decade ago you said the qui tam provisions in the False Claims Act were, your words, "An abomination" and were unconstitutional.

You said, you, in your words, "Wanted to attack the law," but the Supreme Court upheld the law's constitutionality. Prosecutors from both sides of the aisle have praised the law as the most effective tool government has to detect and actually recover public money lost to fraud.

Since 1986, the law that was passed in 1986 brought in $56 billion into the federal treasury. Most of that's because patriotic whistleblowers found the fraud and brought the case to the attention of the government. Is the False Claims Act unconstitutional?

BARR: No, senator.

GRASSLEY: You (ph)...

BARR: It's been upheld by the Supreme Court.

GRASSLEY: Do you consider the False Claims Act to be an abomination?

BARR: No, I don't.

GRASSLEY: Does the False Claims Act benefit the taxpayer, specifically its provisions to empower and protect whistleblowers?

BARR: Yes, senator.

GRASSLEY: If confirmed, do you commit to not take any action to undermine the False Claims Act? Further, if confirmed, will you continue current Justice Department staff and funding levels to properly support and prosecute False Claims Act cases?

BARR: Yes, I will diligently enforce the False Claims Act.

GRASSLEY: Now, with all those positive answers you'd think I'd be done, wouldn't you, with that.

(LAUGHTER)

But let me go on.

Just to show you that there is some forces out there that I'm suspicious about within the Department of Justice, we have a new Department of Justice guidance document out last year known as about the Granston Memo, provides a long list of reasons that the Department can use to dismiss False Claims Act cases. Some of them pretty darn vague, such as preserving -- these -- these are their words, "Preserving government resources." Just think of all the mischief those three words can bring.

Of course the government can dismiss, obviously, meritless cases -- I don't argue with that. But even when the Department declines to participate in False Claims Act cases the taxpayer can, in many cases, still recovery financially.

So it's important to allow whistleblowers to pursue cases even when the Department isn't able to be involved.

Under what circumstances can or should the Justice Department move to dismiss False Claims cases?

BARR: Senator, I haven't reviewed that memorandum so I'm not familiar with the thinking of the people in the -- I think it's the Civil Division that did that. But if I'm confirmed, I will review it and I'm -- I would be glad to come and sit down with you and discuss it. And if there are areas you're concerned about, I'd be glad to work with you on that.

GRASSLEY: Unless you find that my presumption is wrong that there's reasons to be suspicious, I hope you'll take into consideration my feeling about how in various suspicious ways people that are faceless bureaucrats can undermine this effort.

[10:35:00]

In circumstances where the government doesn't intervene in False Claims cases, if confirmed, will you commit to ensuring the Department doesn't unnecessarily dismiss False Act (sic) cases?

BARR: Yes, senator. I will -- I will enforce the law in good faith.

GRASSLEY: OK. Now, got an act that the Justice Department just took, and I can't obviously expect you to respond specifically to their act, but I use it as an example of their un-cooperation (ph) with the Department of Congressional Oversight. This uncooperative behavior needs to change.

On December the 10th last year, the Department confirmed a briefing for your staff regarding Asset Forfeiture Fund and to do that last week, January the 8th. On January the 7th, Department of Justice Office of Legal -- or, Legislative Affairs -- informed our staff that they will no longer provide the briefing because they consider the matter closed as a result of the change in chairmanship and because you released a public memo -- because I released a public memo on the Marshals Service study (ph) -- or investigation.

It's important to gain your commitment on how you would handle this as an example. Let me explain how ridiculous it is to get somebody in this administration saying that they don't have to answer if you aren't chairman of a committee.

We went through this in January, the first month this president was in office, when he said -- or he put out a memo -- we aren't going to answer any oversight except for chairman of the committee. So you're going to write-off 500 members of Congress not doing oversight.

So we told them all about this and the constitutional cases on this. We got them up. They wrote a memo, again, two months later that said that they were going to respond to all this stuff.

Now you've got people in the bowels of the bureaucracy that are -- that are still saying, If you aren't a chairman you -- you ain't (ph) going to get answer to anything. How ridiculous. It's our Constitutional responsibility.

So then I laid out -- I'll give you an example, I sent the Justice Department a classified letter regarding information acquired from the Justice Department Inspector General Report on the Clinton investigation. The Department ought to answer for what the attorney -- inspector general has found but I haven't heard a peep, not a peep, on that yet.

On December the 10th, the Justice Department -- well, I'm repeating here. So the question is do you understand that if you're confirmed you have an obligation to ensure the Justice Department -- and particularly the FBI is a problem -- respond to Congressional inquiries and to do it in a timely manner?

BARR: Absolutely, senator.

GRASSLEY: Do you understand that this obligation applies regardless of whether you're a member of Congress or a committee chairman?

BARR: Yes, senator. I -- you know, you and -- and Senator Leahy I think are the only members of the committee now who were here 27 years ago when I was first confirmed. But I think you will recall that we were able to -- we were able to establish very cooperative and productive relationships with all the members, and try to respond to their questions, and deal with their concerns and work with them on projects that they're interested in. And that will be the same approach that I will bring to the job if you confirm me.

GRASSLEY: OK. Then let me be specific on my last question on oversight. You remember when you were in my office I gave you as I gave Attorney General Sessions, as I gave Holder, a long list of things that the department has not answered. And one of these was an October 17th, 2018 letter and -- and I'd like to have your response to answering that letter, and respond to all outstanding and future oversight requests in a timely manner.

And then remember I said are you Cabinet people come up here to tell us yes when we ask you if you're going to answer our stuff. I said maybe you had better say maybe. So if you want to say maybe now and be really honest, say maybe. Otherwise, I hope you'll answer that October 17th letter once we get you voted into office.

BARR: Yes, senator.

GRASSLEY: Throughout your career, you've expressed concern with congressional attempts to enact criminal justice reform and at times advocated for stricter mandatory minimum sentences. In '92 under your direction DOJ published a report entitled, "The Case for More Incarceration." This report declared that the problem with our criminal justice system was that we were incarcerating too few criminals.

[10:40:00]

More recently in 2015, you signed a letter opposing the Sentencing Reform and Corrections Act of 2015. This letter states quite clearly your opposition to sentencing reform particularly the lessening of mandatory minimum sentences, any sort of retroactivity.

The First Step Act was signed by President Trump, as attorney general it will be your job to implement the legislation. Even though you've opposed criminal justice reform in the past, will you commit to fully implementing the First Step Act?

BARR: Yes, senator. But, I -- I -- you know, in 1992 when I was attorney general the violent crimes rates were the highest in American history. The sentences were extremely short. Typically in -- in many states, the time served for -- for rape was three years; for murder, time served five to seven years. It was -- the system had broken down.

And I think through a series of administrations -- Reagan, Bush and Clinton, the laws were changed and we targeted violent -- chronic violent offenders especially those using guns. And I think the reason the crime rate is much lower today is because of those policies. So I don't think comparing the policies that were in effect in 1992 to the situation now is -- is really fair.

And I think -- and I've said that right now we have greater regularity in sentencing. There's broader recognition that chronic violent offenders should be incarcerated for significant periods of time to get them off the streets, and I think the time was right to take stock and make changes to our penal system based on current experience.

So I have no problem with the approach of reforming the sentencing structure and I will faithfully enforce that law.

GRASSLEY: Don't take it personal if I raise my voice to you, I'm not mad at you.

(LAUGHTER)

GRAHAM: If I were you, I'd answer his letters just as for a tip that may help you through your job if you get it.

I'll take the time away from my second round. I'm very curious about the conversations you had about personal representation being attorney general. You mentioned it to Senator Feinstein. Can you kind of give us a summary of what you were talking about?

BARR: Yes. So in June of 2017, middle of June, Ambassador David Friedman who is the U.S. Ambassador to Israel, who I didn't know -- I knew that he was a top-tier lawyer in New York and apparently a friend of the president's -- he reached out to me and we talked one evening. And he said that he -- well, my understanding was he was -- he was interested in -- in finding lawyers that could augment the defense team. And failing that he wanted to identify Washington lawyers who had, you know, broad experience that -- whose perspective might be useful to the president's.

And he asked me number of questions like, you know, what you said about the president publicly, do you have any conflicts, and so forth.

And I told him that I -- I didn't think I could take this on. That I just taken on a big a corporate client that was very important to me and I expected a lot of work. And I said at my point in life, I -- I really didn't want to take on this burden, and that I actually preferred the freedom to not have any representation of an individual but just say what I thought about anything without having to worry about that. And I said that I -- my wife and I were, sort of, looking forward to a

bit of respite and I didn't want to stick my head into that meat grinder. He asked me if I would, nonetheless, meet -- just briefly go over the next day to meet with the president. And I said, sure. I'll go and meet with the president.

And he brought me over and was squeezing me in, I -- it looked to me like it was before the morning staff meeting because people were grouping by the door to get in and I went in. And he was there -- the ambassador was there, sat through the meeting.

It was a very brief meeting, where essentially the president wanted to know -- He said, oh, you know Bob Mueller? How well do you know Bob Mueller?

And I told him how well I knew Bob Mueller our -- and -- and -- how, you know, the Barr's and Mueller's were good friends, and would be good friends when this is all over and so forth. And he was interested in that and wanted to know what I thought about, you know, Mueller's integrity and so forth and so on. And I said, Bob is a -- is a straight shooter and should be dealt with as such.

[10:45:00]

And he said something to the effect like, so are you envisioning some role here? And I said, you know, actually, Mr. President, right now is -- is -- I couldn't do it. You know, I just -- my personal and my professional obligations are such that I'm -- I'm unable to do it.

So he asked me for my phone number. I gave it to him and I never heard from him again -- until...

GRAHAM: Well, I tried that once.

(LAUGHTER)

You did better (ph)...

BARR: Well, I didn't hear from him until, you know, later -- but about something different, which was the attorney general position.

GRAHAM: (OFF-MIKE)

LEAHY: Thank you.

Mr. Barr, good to see you again. As you mentioned, Senator Grassley and I were here at your hearing a number of years ago. Let me go back even before that.

Forty-six years ago I was not on the Senate, I was state's attorney in Vermont and I watched with a great deal of interest in the Elliot Richardson hearings. He'd been nominated to be attorney general in the midst of Watergate. He made several commitments to the committee, including appointing a special prosecutor and he promised to protect his independence. And I, as one who had total independence as an elected prosecutor in Vermont, I thought how important was to have the same independence at the national level.

And Mr. Richardson said it was necessary to create the maximum possible degree of public confidence and the integrity of the process. I've never forgotten that. But I think the integrity of our institutions is just at as much a risk today.

LEAHY: President Trump has made it clear he views the Justice Department as an extension of his political power. He's called on it to target his opponents. He obsesses over the Russian investigation, which looms over his presidency -- it may define it. He attacks the special counsel almost daily. He fired both the previous FBI director and attorney general for not handling the investigation as he pleased. That tells me the rule of law can no longer be taken for granted.

So if confirmed, the president's going to expect you to do his bidding. I can almost guarantee you he'll cross the line at some point. That's why the commitments you make here today, just like those I watched Elliot Richardson make years ago, matter greatly.

So will you commit, if confirmed, to both seeking and following the advice of the Department's career ethics officials on whether you must recuse from the special counsel's investigation?

BARR: I -- I will seek the advice of the career ethics personnel. But under the regulations, I make the decision as the head of the agency as to my own recusal. So I -- I certainly would consult with them and, at the end of the day, I would make a decision in good faith based on the laws and the facts that are evident at that time.

LEAHY: Same thing if you're talking about a conflict of interest?

BARR: Well, no. Some conflicts, as you know, are mandatory.

LEAHY: I'm thinking of what Attorney General Sessions -- when asked similar questions, he said he'll seek and follow the advice -- seek and follow the advice of the Department of Justice's designated ethics officials.

So let me ask you, maybe in a different way. I know you promise to not interfere with the special counsel. Are there any circumstances that would cause you to terminate the investigation or any component of it, or significantly restrict its funding?

BARR: Under the -- under the regulations, Bob Mueller could only be terminated for good cause. And I -- frankly, it's unimaginable to me that Bob would ever do anything that gave rise to good cause.

But in theory, if -- if something happened that was good cause, for me it would actually take more than that. It would have to be pretty grave and the public interest would essentially have to compel it because I believe right now the overarching public interest is to allow him to finish.

[10:50:00]

LEAHY: I -- I would agree with that but I also think over the past 18 months, you've rather harshly prejudged the investigation in some of your writings.

BARR: Well, I -- I, you know, I don't see that at all, senator. You know, when you strip away a lot of the rhetoric, the two things that have been thrown up as me sort of being antagonistic to the investigation are two things.

One, a very mild comment I made that, gee, I wish the team had been more balanced. I wasn't criticizing Mueller. I believe that prosecutors -- and I think you would agree -- they can handle the case professionally whatever their politics are. You know, a good prosecutor can leave their politics at the door and go in and do the job.

And I think that's what Justice Department prosecutors do in general.

LEAHY: But you're also very critical but -- of the Russian probe. I mean, I can't think of anything that would, in your memo for example, that would jump out more for this president because of his commitment to it. And I ask that because some have said, on both sides of the aisle, that it looked like a job application. And so that's what I want you to refer to.

BARR: Well, that's ludicrous. If I wanted the job and was going after the job, there are many more direct ways of me bringing myself to the president's attention than writing an 18-page legal memorandum...

LEAHY: Or -- or criticizing (ph)...

BARR: ... sending it to the Department of Justice and routing it to other -- to...

LEAHY: But also publicly criticize the Russian probe, I mean...

BARR: How have I criticized the Russian probe -- probe?

LEAHY: You don't have any criticism of the Russian probe?

BARR: Not at all. I think -- I believe the Russians interfered -- or attempted to interfere with the election and I think we have to get to the bottom of it.

LEAHY: So you would -- you would be in favor of releasing the investigative report when it's completed?

BARR: As I've said, I -- I'm in favor of as much transparency as there can be, consistent with the rules and the law.

LEAHY: Do you see a case where the president could claim executive privilege and say that parts of the report could not be released?

BARR: Well, I don't have a clue as to what would be in the report. The report could end up being, you know, not very big, I don't know what's going to be in the report. In theory, if -- if there was executive privilege -- material to which an executive privilege claim could be made, it might -- you know, someone might raise a claim of executive... LEAHY: That'd be pretty difficult following U.S. versus Nixon when the Supreme Court unanimously rejected President Nixon's claims of executive privilege over the Watergate tapes.

But I -- I -- I ask it (ph) because the president's attorney, Mr. Giuliani, said the president should be able to correct the Mueller report before any public release. So in other words, he could take this investigative report, put his own spin on it and correct it before it's released. You commit that would not happen if you're attorney general?

BARR: That will not happen.

LEAHY: Thank you.

You had -- when you were A.G., I remember this well because I was here in the Senate at the time you encouraged President George H.W. Bush to pardon all six individuals who were targeted in Iran-Contra. Independent prosecutor investigated the matter, labeled that a cover- up. Now, you and I talked about this in my office and I appreciate you coming by, I -- I found the conversation the two of us had to be well worthwhile.

Do you believe a president could lawfully issue a pardon in exchange for the recipient's promise to not incriminate him?

BARR: No. That would be a crime.

LEAHY: Thank you.

In 1990, you argued that Congress' appropriation power is not an independent source of congressional power to control the allocation of government resources. There are only three committees in the Senate that have a vice chairman, Appropriations is one of them. Obviously, as vice chairman, I kind of looked at that. You claim that if a president finds no appropriate funds within a given category, he may use funds from another category as long as those categories are in his constitutional purview.

[10:55:00] LEAHY: Now, this as the vice chairman of Appropriations Committee, don't be surprised I disagree. Congress' power of the purse, Article I, Section 9, I believe constitutes one of the most fundamental and foundational checks and balances on the executive branch. So do you believe the president can ignore Congress' appropriations allocation conditions and restrictions in law? Just ignore them and take the money and (inaudible)...

BARR: Not -- not as a general proposition. But I -- that -- that was a...

LEAHY: A general proposition...

BARR: I actually thought that was a good law review article. It -- I gave it as a speech and it was really a thought piece. And what I was really saying was -- and I say right up front that the more I thought about the appropriations power, the more confused I got. And -- and I was just laying out a potential template, which is this:

people frequently say, you know, the power to -- you know, spend money on this division or this missile systems is part of the power of the purse. And what I was actually saying was, you know, actually, what right -- what the power being exercised there is the substantive power that Congress has to raise armies. And -- and -- it's not -- it doesn't come from the power of...

LEAHY: We also have specific appropriations on agriculture, on (inaudible) -- I mean, for example, could a president just build a wall along our Southern Border because he wanted to and just take the money, whether appropriated or not? What about eminent domain?

BARR: What about eminent domain?

LEAHY: Well, if you're going to build a wall you got to take a whole lot of land away from landowners in Texas and elsewhere.

BARR: Well, you know, you'd have to show me what statute is being invoked and also what appropriations is being used. I -- I can't answer that in the abstract.

LEAHY: So you're saying the president can have the power to go into money, even if the Congress has appropriated it for a different purpose?

BARR: I -- I didn't say that. I -- but some...

LEAHY: You mean that (ph)?

BARR: No, I don't mean that. I'm saying that it -- you know, there are monies that the president may have power to shift because of statutory authority.

LEAHY: But that would have been because Congress gave him that authority.

BARR: Right.

LEAHY: Not because he has it automatically.

BARR: I'm -- I'm not taking that position. As I said, my -- my law review -- it was published as a law review article and it was a -- a thought piece exploring what limits there might be to the appropriations power and what -- where -- where Congress' power comes from in certain areas.

LEAHY: You -- thank you, Mr. Chairman.

GRAHAM: Just to follow-up on that real quick -- and won't take this against, Senator Cornyn -- do the Article II powers, the inherit authority of the Commander in Chief give him the ability to take appropriated dollars from the Department of Defense and build a wall?

BARR: I can't -- without looking at the statute, I really couldn't answer that. GRAHAM: I'm not talking about a statute. I'm talking about the inherit authority of the president as the Commander in Chief.

BARR: That's the question I would go to OLC to answer.

GRAHAM: OK. Get back with us on that.

Senator Cornyn.

CORNYN: Mr. Chairman, let me congratulate you on your election as chairman of the Judiciary Committee, and tell you we look forward to working with you and supporting this committee's efforts. Thank you for convening today's hearing.

And I want to express my profound and sincere thanks to the nominee, Mr. Barr, for agreeing to serve a second time as Attorney General. I noted in your statement you said it was 27 years ago that you sat in this chair and went through your first confirmation hearing.

And to me that says a lot about your character and your commitment to the rule of law that you would be willing to go through this process again and serve, once again, as the chief law enforcement officer of the -- of the country. Thank you for doing that. Thank you to your...

BARR: Thank you, senator.

CORNYN: Thank you to your -- your family as well.

To me the attorney general is one of the most challenging cabinet offices to hold because, as you point out in your opening statement, you are committed to the rule of law and enforcing the laws of the land but you are also a political appointee of a president.

If you are serving in another cabinet position, certainly you're committed to implementing the president's agenda or the agenda of an administration, but they're -- as Attorney General that is not an unequivocal commitment because there may be some things that the administration wants you to do that you cannot do consistent with the rule of law, correct?

BARR: That's right, senator.

[10:30:00]