Two years ago, during Jeff Sessions’ hearing to become Donald Trump’s attorney general, then-Sen. Al Franken questioned the nominee about whether he was aware of a breaking news report about an exchange of information between the Russians and the Trump campaign during the 2016 election. Sessions—taken aback—replied that he was “not aware of any of those activities” and that he “did not have communications with the Russians” during the campaign.
That proved to be untrue. Less than two months later, Justice Department officials told the Washington Post that Sessions had in fact met with then-Russian Ambassador Sergey Kislyak at least twice during the campaign. Shortly thereafter, Sessions was forced to recuse himself from all Department of Justice investigations related to the 2016 election. As a result of this recusal, and Sessions’ subsequent failure to exercise oversight over the Mueller investigation, Trump expressed repeated frustration with his AG, including, in 2017, reportedly ordering White House Counsel Don McGahn to stop Sessions from recusing himself. Last November, after nearly two years of being insulted and berated by his boss, Sessions resigned at the president’s request.
This week, William Barr is having his own confirmation hearings to replace Sessions as the nation’s top lawyer. While Democrats probably don’t have the Senate votes to block Barr from confirmation, his record is troubling them on various fronts, from his capacious view of presidential authority, to his zeal for mass incarceration during his tenure in the George H.W. Bush administration, to his record on civil rights, to his handling of presidential pardons in the Iran-Contra probe. Hovering over all of it is the little matter of the Mueller investigation, and the unsolicited 19-page private memo Barr sent to Deputy Attorney General Rod J. Rosenstein in June calling the Mueller probe into whether Trump obstructed justice “fatally misconceived.” Barr opined in that same memo that Mueller shouldn’t be allowed to subpoena Trump, calling it an “interrogation.”
In a Facebook post on the firing of Andrew McCabe from March, Franken wrote that he hadn’t known his “gotcha” questions about Sessions and Kislyak would turn out to be gotchas, nor that they would lead to the Mueller probe. Nevertheless, leading up to Tuesday’s confirmation hearing, I couldn’t help but wonder what Franken would have planned to ask Barr during his hearing, were he still on the Senate Judiciary Committee. Franken no longer sits on that committee—he left the Senate in 2018, in the wake of reports that he had touched women inappropriately, a decision I thought was warranted given the allegations against him. He has also apologized for his past behavior, and I’ve watched from afar as he has continued to weigh in on questions before the Senate Judiciary Committee, ranging from how he would have questioned Brett Kavanaugh at his Supreme Court confirmation hearings to his excoriation of Sessions last March when the then-AG fired former Deputy FBI Director Andrew McCabe just hours before McCabe was to have retired with full benefits. Each of these accounts show, in my view, Franken’s continued aptitude for cutting through the crap. Our conversation has been edited and condensed for clarity.
Dahlia Lithwick: As of this writing, nominee Barr has announced that it’s “vitally important” that Mueller be allowed to finish writing his report and that it’s “very important” that Congress and the American public be informed of his findings and conclusions. Does that suggest to you that all is clear on the special counsel front?
Al Franken: No. No. Not really. No. Barr believes the president is the prosecutor-in-chief, and told George H.W. Bush that he was the top law enforcement officer in the country. So, it seems to me Barr thinks that what the AG finds vitally important is less vitally important than what the president thinks is vitally important. And the president is Donald Trump. So, I think it’s vitally important that Barr not be the AG.
At the very least, given Barr’s very long memo, which no one forced him to write, stating that Mueller has no right to investigate Trump for obstruction of justice, I think he has to recuse himself entirely from the Mueller investigation. Also, given that Trump asked Barr to be his personal attorney in the Mueller investigation and that we have no idea what the president said to him, Barr should recuse himself twice for good measure.
Barr has espoused some very broad ideas about executive powers, which feel extra troubling as the president mulls declaring a state of emergency to appropriate funds he cannot exact from Congress through negotiation. Do you worry—check that, do you FREAK OUT—at the prospect of any lawyer telling this president that his job comes with a bottomless stack of blank checks to do what he wants?
Yes. And let me tell you why. The attorney general should be a check on the president’s worst impulses, and this president seems to have poor impulse control—whether it’s declaring an emergency in order to build a big wall or ordering DOJ to investigate his political adversaries. Barr’s belief in expansive executive power suggests that he won’t be that check.
Did anything else from his prepared statement jump out at you? Hard to miss the cry for civility and voting rights.
In his testimony, Barr said that he would protect our elections from foreign interference, but he stopped short of pledging to defend voting rights from ALL threats—foreign AND domestic. Barr should make clear whether DOJ, under his leadership, will protect the right to vote by suing to block states from enacting racist policies—like voter ID measures—that are designed to keep black voters from casting a ballot.
Barr should also say whether he supports DOJ’s role in protecting civil rights more broadly. During my time in the Senate, I successfully pushed the Obama administration to adopt policies that protected LGBT people under existing federal civil rights laws. But late last year, Barr wrote an op-ed with former Attorneys General Ed Meese and Michael Mukasey that praised Sessions for rolling back those very same policies. So, I’m skeptical that Barr is capable of being an attorney general who protects the rights of all Americans.
Stipulating, as you noted last March, that you were not prescient with your line of confirmation questions for Sessions, you were nevertheless Russia-curious. What sorts of issues around the Trump-Russia arm of the Mueller probe would you be curious about two years later?
As I said, Barr should recuse himself from the Mueller investigation. So, to be clear, I would not encourage anyone to ask him what he would do to investigate Trump’s many, extremely suspicious connections to Russia and their interference in our election. That said, there are any number of questions I have about Trump and Russia. The root of the question is—had Russia compromised him? By bailing him out when he was less credit-worthy than Charlie Manson? Did they launder money through his organization by buying real estate, like that mansion in Florida that he sold to a Russian oligarch for more than twice what he paid for it just four years earlier? That’s interesting, don’t you think? Did he know about the meeting that his son, son-in-law, and campaign manager had with Russians who had promised dirt on Hillary Clinton—a meeting held in the tower named for him? That’s also interesting. I have a lot of questions about the American interpreters in his meetings with Putin. Are they still alive? I certainly hope so. Did he swear them to secrecy? And did they comply? And is that why they are still alive? Did Paul Manafort know that giving Russians internal polling data might seem suspicious? Is Manafort happy that Trump won the election?