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Senate Takes on Man Who Will Decide Robert Mueller Probe's Fate; William Barr Says I Won't Be Bullied into Doing Anything Wrong As Attorney General; Barr Says Is Very Important For Public to Be Informed of Robert Mueller's Results; Barr Says Vitally Important for Mueller To Finish His Probe; Barr Says Would Be A Crime for The President To Promise A Pardon in Exchange For Non-Incriminating Testimony Against Him. Aired 2-2:30p ET

Aired January 15, 2019 - 14:00   ET


[14:00:00] BROOKE BALDWIN, CNN HOST: Live pictures inside this hearing that's been taking place for the last several hours. I'm in Washington, D.C. today. I'm Brooke Baldwin. Thanks for being with me. Watching this confirmation of the President's pick for Attorney General, this is the man who would be overseeing the investigations of the President, William Barr has been getting grilled since 9:30 this morning eastern time on what he would do if he were confirmed as Attorney General, the cabinet overseeing the Russia investigation. He's replacing Jeff Sessions who was fired in mid-November. The former Attorney General was basically shown the door for recusing himself from the special counsel investigation and his firing obviously has been a huge, huge issue at today's hearing with Barr saying Sessions was right in choosing to recuse himself, but he stopped short of making the same commitment should he receive the same guidance from the Department of Justice ethics advisers. Here he was.


SEN. LINDSEY GRAHAM (R), SOUTH CAROLINA: Do you believe that Attorney General Sessions had a conflict because he worked on the Trump campaign?

WILLIAM BARR, NOMINEE FOR ATTORNEY GENERAL: I'm not sure of all the facts, but I think he probably did the right thing recusing himself. Under the regulations, I make the decision as the head of the agency as to my own recusal, so I certainly would consult with him and at the end of the day I would make a decision based on good faith on the laws and the facts that are evident at that time.


BALDWIN: Barr also addressed his 19 page memo which he penned last June critical of the work the special counsel Robert Mueller, a good friend, he explained today in testimony, so within this memo he argued that President Trump's firing of James Comey has FBI chief did not constitute obstruction of justice, but he said that he did not have all of the facts when he made that assertion based upon what was public despite his criticism, Barr did promise to allow the special counsel's investigation to finish. He also said he would not allow the President to edit any final report. (BEGIN VIDEO CLIP)

BARR: Under the regulations, Bob Mueller could only be terminated for good cause and frankly, it's unimaginable to me that Bob would ever do anything that gave rise to good cause, but in theory, if something happened that was good cause, for me it would actually take more than that. It would have to be pretty gravel and the public interest would have to compel it because I believe right now the overarching public interest is to allow him to finish. 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.


BALDWIN: So, let's dive into conversation here as they're taking this ten-minute break. With me now is CNN chief political analyst Gloria Borger and CNN justice Reporter Laura Jarrett and CNN crime and justice reporter Shimon Prokupecz and CNN chief legal analyst Jeffrey Toobin. Thanks for having me in your town.


BALDWIN: I want to start with my justice reporters first, ladies first to you, I've been listening for hours and hours to this testimony and the thing that stuck out to me -- because everyone watching is thinking, when this whole Mueller investigation wraps, will we, we, the American people, being able to see it. This is what Barr said. He testified that by regulation the report Mueller submits to DOJ will be quote confidential so any publicly issued report he said would be an Attorney General's report. Translate that for me.

[14:05:00] LAURA JARRETT, CNN JUSTICE REPORTER: So, under the regulations, Mueller doesn't have to submit anything to the public. All he does is list out all of his prosecution decisions and declinations, meaning the people he didn't prosecute but there might be classified information, there might be executive privilege issues so what he's trying to say here is, Mueller will give me the report but I will take a look at it and I will draft up something that is capable of being delivered to the public. Now we haven't heard that kind of scenario laid out as clearly as he did it today and it's not at all clear that he's ever had this conversation with either Rod Rosenstein whose been running the investigation or Robert Mueller but it makes sense he could see the scenario because he wants to be as transparent as possible, he keeps saying. Whether exactly he goes through with any of this is a different issue. Whether Congress is OK with this, different issue.

SHIMON PROKUPESZ, CNN CRIME AND JUSTICE REPORTER: I think you can compare it to what we see in intelligence folks before they release something. You scrub it. You go through it, see what you may think is classified, what could possibly hurt other investigations. There is going to be other investigations that may live well beyond Mueller. Once Mueller's done and gone, there are other investigations. There may be information in this report that relates to other investigations. So, I think it won't just be Barr that's going to go through the scrubbing. There are people in the national security division over at DOJ that will go through this report, maybe people at the CIA, there may be information --

BALDWIN: But will the American people be able to see what Robert Mueller found about Trump?

PROKUPESZ: You know, I think there will be an avenue for this somehow. I really do think so. Whether that's through Congress or some other avenue, I think given all the attention that this case has gotten, certainly the players that are involved, I think there has to be and I think Mueller understands --

BALDWIN: The transparency.

GLORIA BORGER, CNN CHIEF POLITICAL ANALYST: The question is -- say the gang of eight, the top eight leaders in the Congress, including the heads of the intelligence committees, will they get the Mueller report and will that report then be leaked? That's a possibility. Will they -- could they say that whatever Barr does should he be confirmed is inadequate and doesn't accurately represent all of the nuance or the important details contained in the Mueller report? We don't know. Could there be a legal fight between the Congress and the Justice Department or the White House about the release of everything? Because it's not specified, right, in the statute. The statutes very vague on this, silent, in fact.

JEFFREY TOOBIN, CNN CHIEF LEGAL ANALYST: The regulation, actually, that governs Mueller's is pretty vague as everyone's been saying about what the report is supposed to contain.


TOOBIN: It's also vague about what basis the Attorney General has to release it or not release it and I think the important conclusion to answer your basic question of, are we going to see this? We don't know for sure and Barr is not making an iron clad commitment that he will release it. He says I'd like to but I'm going to have to look at classified information and look at executive privilege. That is a potentially very broad area for disagreement because Rudy Giuliani has said, we turned over some material that we believe is covered by the privilege, so -- there is uncertainty. I don't think there's any uncertainty about whether he's going to fire Mueller. I think that's pretty much off the table.


TOOBIN: But the release of the report, not clear.

BALDWIN: I think that just hammers home why this particular process is so important hearing from Bill Barr, hearing his testimony because this is a really, really, really important job. As we've been discussing all of this and all eyes are on William Barr, the President's pick for Attorney General of this country, breaking news, Senator Kirsten Gillibrand said she will be running for President.

BORGER: What a surprise. BALDWIN: Here we go in the middle of all this. She's announced she's

up -- what does that make? How many women so far? Elizabeth Warren --

BORGER: Kamala Harris.

BALDWIN: Amy Klobuchar. We don't know.

BORGER: Amy Klobuchar, yes.

BALDWIN: What do you think?

BORGER: Lots of women this year. It's actually not surprising given the political environment, given what's gone on in the country over the last year in particular. I think a lot of these women are experienced politicians of the they're not running just as women, but I think Kirsten Gillibrand who's has been carrying the torch for women, particularly in the military, for example, is somebody who's going to really emphasize this. I think Elizabeth Warren, for example, is running as somebody who cares about consumers and that's her -- that's her thing. It's not just women running for women, but I think it's interesting that the Democratic field -- you had Julian Castro announce on Saturday. The Democratic field looks as diverse as the Democrats in the House. It's a very diverse group of candidates who are going to enter and I think that is reflective of the Democratic party right now.

BALDWIN: Other potential contenders on the Senate judiciary committee. We'll be listening in for their questions. Will continue our special coverage in just a moment. You're watching CNN. I'm Brooke Baldwin.


BALDWIN: We are back live in Washington, D.C. taking you back to the Senate judiciary confirmation hearing. The President's pick to be the next Attorney General on the left-hand side of your screen, William Barr, just watch.

BARR: Exercise more compartmentalization and discipline and make the institutions that are responsible, if you're talking about the FBI, that their leadership is taking aggressive action to stop the leaks.

14:15:00] SEN. JOHN KENNEDY (R), LOUISIANA: OK. You've had some experience with the enforcement of our immigration laws, is that correct?

BARR: That's right, senator.

KENNEDY: Do you believe it is possible to secure a 1,900-mile border without in part, at least, using barriers?

BARR: No, I don't think it's possible. When I was Attorney General, we had the INS as part of the department and I remember another part of my kibitzing was trying to persuade George W. Bush's administration not to break that out. In those days I had some studies done and I was trying within the budget to put as much as we could on barriers as we could.

KENNEDY: OK. Do you believe that I.C.E. should be abolished as some of my colleagues do?

BARR: Certainly not.

KENNEDY: OK. You're Roman Catholic, are you not?

BARR: Yes, I am.

KENNEDY: Do you think that disqualifies you from serving in the United States government?

BARR: I don't think so, no.

KENNEDY: OK. Why is that?

BARR: Why doesn't it disqualify me?

KENNEDY: Uh-hum. Some of my colleagues think it might.

BARR: Because you render under Caesar's that which is god and unto god that which is god and I believe in the separation of church and state and if there was something that was against my conscious, I wouldn't impose it on others, I would resign my office.

KENNEDY: Yes. I think it's called freedom of religion.

BARR: Yes.

KENNEDY: As I recall.

BARR: That's right.

KENNEDY: If the federal government threatens to withhold federal money from a university, if that university doesn't investigate, prosecute, punish sexual assault in a way prescribed by the federal government, does that make the state university a state actor? Or the university a state actor?

BARR: It may. I would have to look at the cases. I'm not up to speed on those, but I would think so.

KENNEDY: If the federal government says to a university, look, if you do not prosecute, investigate, punish allegations of sexual assault in a way that the federal government says you must, otherwise we're going to take away your federal money, does the accused in one of those sexual assaults allegations still have the protection of the bill of rights?

BARR: I would hope so.

KENNEDY: Should he or her?

BARR: I'd have to look and see exactly the state actor law right now but what you're getting at is, is, you know, the -- the rules that were forced on universities in handling sexual harassment cases that I felt did away with due process.


BARR: And, you know, I -- as a father of three daughters, I take very seriously any question of sexual harassment. It's a serious problem and the -- the word of a victim has to be taken very seriously and it has to be pursued, but we can't do it at the expense of the bill of rights or basic fairness and due process.

KENNEDY: Both the accused and the accuser deserve due process, do they not?

BARR: That's right.

KENNEDY: Tell me what the legal basis is for a universal injunction.

BARR: I think universal injunctions have no -- well, let me say that they are a recent vintage, they really started arising in the '60s and I think that they have lost sight of limitation on the judicial power of the United States which is case or controversy.

KENNEDY: It's all based on the D.C. circuit case, is that right?

[14:20:00] BARR: I forgot the name of the case, but I think the D.C. circuit case was the first one. I think that was in the '60s and people have lost sight of the fact that it's really a question of who gets the relief in a case and under the case or controversy it should be limited to the parties. Earlier you could have a court in one jurisdiction decided and that would be the rule in that jurisdiction, but that didn't bar the government from continuing its policies elsewhere and eventually you'd get differences and they would work their way up to the Supreme Court, so I think that I'd like to see these universal injunctions challenged.

KENNEDY: I don't know how many federal district court judges we have, 650, as I understand it, one can enjoin a Congressional statute nationwide even if the other 624 judges disagree.

BARR: That's right. And not just a statute, senator, what's different is, what we're seeing is the willingness of courts to set aside, you know, even the kinds of exercises of national security power that, you know, 20 years ago would have been unimaginable for a court to challenge and yet a district court judge somewhere can enjoin some action that has a bearing on the safety of the nation and then the judicial process can take years and years to get that up to the supreme court.

KENNEDY: I've just got a few seconds left. As I understand your testimony, Mr. Mueller will write a report, submit it to you as Attorney General and then you will write a report based on that report and release your report, is that right?

BARR: That's essentially it, but I wouldn't -- it could easily be that the report is communicated to the department -- assuming I was confirmed, that could be a month away.

KENNEDY: Let me tell you what I'm getting at. I've got six seconds, now four. The American people deserve to know what the department of justice is concluded and they're smart enough to figure it out. I've said this before. The American people don't read Aristotle every day. They're too busy earning a living, but if you give them the facts, they'll figure it out and draw their own conclusions. Doesn't matter who spins it. They'll figure it out for themselves and I would strongly encourage you to put this all to rest, to make a report, a final report public to let everybody draw their own conclusions so we can move on. If somebody did something wrong, they should be punished, but if they didn't, let's stop the innuendo and the rumors and the leaking and let's move on.

BARR: I agree, senator. Let me say, earlier I misspoke because the acting Attorney General is Matt Whitaker and I referred to Rod as the acting Attorney General but, in fact, the report would go to Matt Whitaker.

KENNEDY: Thank you, Mr. Chairman.

SEN. CORY BOOKER (D), NEW JERSEY: Thank you, Mr. Chairman and I would like to remark Mr. Barr that your family's showing a judicious level of patience and that should be marked for the record. You're a very lucky man. You know that about 30 plus states have legalized medical marijuana for adult use, you're aware of that?

BARR: Yes.

BOOKER: Jeff Sessions rescinded the Cole memorandum which provided guidance that the federal marijuana prohibition should not be enforced in states that have legalized marijuana in one way or the other. Do you believe it was the right decision to rescind the Cole memorandum?

BARR: My approach to this would be not to upset settled expectations and the reliance interests that have arisen as a result of the Cole memoranda and investments have been made and so there have been reliance on it. I don't think it's appropriate to upset those interests. However, I think the current situation is untenable and really has to be addressed. It's almost like a back-door nullification of federal law. To me it's a binary choice, either we have a federal law that applies to everybody --

BOOKER: I'm sorry to interrupt you, sir. How would you address that? Do you think it's appropriate to use federal resources to target, you know, marijuana businesses that are in compliance with state laws --

BARR: No, I said -- I said I'm not -- I'm not going to go after companies that have relied on the Cole memorandum, however, we either should have a federal law that prohibits marijuana everywhere, which I would support myself because I think it's a mistake to back off on marijuana, however, if we want a federal approach, if we want states to have their own laws and let's get there the right way --

BOOKER: I'm just going to move on. It's good to hear at least the first part of what you said. During your previous tenure as Attorney General, you literally wrote the book on mass incarceration or at least wrote this report, the case for more incarceration. You argue that we as a nation we're incarcerating too few criminals.

BARR: In those days.

BOOKER: And that the solution was more incarceration for more people.

BARR: Excuse me. For chronic violent offenders and gun offenders.

BOOKER: That's the challenge, sir and you argued against the bipartisan legislation in 2015 quite strenuously.

BARR: I did.

BOOKER: But that's not -- that's not the nature of incarceration in this country. If the 2016 only 7.7 percent of the federal population was convicted of violent crimes. Overwhelming, what was initiated in those times that led to 800 percent increase in the federal prison population that was nonviolent drug offenders right now are federal prison population is overwhelmingly nonviolent, 47.5 percent of the federal prison population are incarcerated for drug offenses and I guess hearing your arguments then and hearing your arguments against the bipartisan legislation that we brought out of the committee in 2016 --

BARR: Senator I think that's wrong what you just said, OK? I think -- when you have violent gangs in the city killing people, murder and so forth and so on, sometimes the most readily provable charge is their drug trafficking offenses rather than proving culpability of the whole gang for murder. So, you can take out a gang on drug offenses and you could be taking out a lot of violent offenders. Do you think that the murders in Chicago are -- they're related to gangs, gangs involved --

BOOKER: We can get into the data if you'd like and I'd like to get some more pointed questioning, but this is the sort of -- these are sort of the tropes that make people believe that in inner cities we should have profound incarceration rates and I'd like to ask you specifically about that data. I think it's language like that that makes me concerned and worried. You said you hadn't reviewed -- earlier in your testimony, you hadn't reviewed criminal justice data about this actual issue of incarceration. I just want to know; will you commit to commissioning a study on the concerns we're talking about right now about the efficacy of reducing mass prison incarceration?

BARR: I've been told that there's a lot of data to support the first step act.

BOOKER: Yes, and that first step act goes directly towards addressing a lot of the problems we've had in mass incarceration and so if you're saying that it is necessary to deal with the violence in communities by overincarcerating, here's a bipartisan group of senators that's working towards reducing mass incarceration and that's why it's very important -- which I appreciate you saying you didn't know because you hadn't review the data, I think it's very important that you review the data and understand the implications for the language you're using which brings up the language of race which is often not set explicitly but when you talk about Chicago in the way you just did, it brings up racial fears or racial concerns and you stated that if a black and a white, this is quoting you directly, are charged with the same offense, generally that will get the same treatment in the system and ultimately the same penalty. You previously quoted and I quote you again, there's anecdotal evidence that of racism in the criminal justice system. Do you still believe that?

BARR: No, what I said was that -- I think that's taken out of a broader quote, which is, the whole criminal justice system involves both federal but also state justice systems and I said there's no doubt that there are places where there is racism still in the system, but I said overall, I thought, that as a system it's working -- it does not -- it's not predicated --

BOOKER: Can I press you on that? Overall the system treats blacks and whites fairly from my own experience, I live in affluent communities, there are certain drug laws applied there that is very different from the inner-city community in which I live. Let's talk stats not our personal experiences. So, I've sat with many of my colleagues who readily admit what the data shows and so, I have a whole bunch of reports which I'll enter into the record from nonpartisan, bipartisan groups, even conservative leaders talking about the rife nature of racial bias within the system. For example, the federal government's own data, the U.S. sentencing commissions research shows federal prosecutors are more likely to charge blacks with offenses that carry harsh mandatory minimum sentences than similarly situated for whites. The federal government's own data shows that black defendants were subject to three strike sentencing enhancements at a statistically significant higher --