Jurisprudence

How Democrats Can Make William Barr’s House Testimony Count

President Donald Trump holds up a Bible as he gestures alongside William Barr, Robert O'Brien, and Kayleigh McEnany outside of St John's Episcopal Church.
William Barr participates in Donald Trump’s Bible photo-op on June 1 in D.C. Brendan Smialowski/Getty Images

On Tuesday, the House Judiciary Committee will get its first opportunity to question William Barr since he was confirmed as attorney general in February 2019. Barr has spent months dodging oversight in the House. He first successfully avoided testimony just three months into his tenure, when he refused to show up for questioning over his handling of the release of the Mueller report.

The Democrats on the House Judiciary Committee, which is tasked with overseeing the Department of Justice, have mustered a feeble response to everything that Barr has done in the interim to dismantle the last remaining vestiges of independence at the Department of Justice. They may not know what to do when faced with the attorney general himself. While Republicans on the committee are likely to focus on some version of the corkboard web of “Obamagate” conspiracy threads, Democrats should focus on five damning events of Barr’s relatively short tenure: the assault on protesters in Lafayette Park, the fraught firing of the U.S. attorney for the Southern District of New York, the abrupt reversals in prosecutions of Michael Flynn and Roger Stone, his insistence that voting fraud will corrupt the election, and the investigation into Crossfire Hurricane. Here are the five big questions Barr needs to be made to answer.

When and why did Barr give the order to clear protesters from Lafayette Square?

Barr has claimed that his decision last month to order federal forces to clear peaceful protesters from Lafayette Square 30 minutes before a curfew went into effect had nothing to do with President Donald Trump’s Bible photo-op that occurred within minutes of the park being cleared. “There was no correlation between our tactical plan of moving the perimeter out by one block and the president’s going over to the church,” Barr has said to the press. One of the biggest jobs of the committee on Monday will to press Barr to say as clearly as possible whether he cleared the square at the time that he did to enable the presidential photo-op. Barr’s account of those events is contradicted by what federal officials have told the Washington Post and what one National Guardsman is planning to say in separate testimony on Tuesday.

The committee must force Barr to answer these questions: What precise time did Barr give the order to clear the park? What precise time did he learn that the photo-op was going to take place? Why did the clearance order happen 30 minutes before the curfew and 30 minutes before Trump’s photo-op? When and how did he decide to send in federal forces at the time that he did? Did he discuss his plan with anyone in the White House beforehand? With whom? What did they say? Who received the order to advance on the crowd, and what was the precise wording of that order?

Why did Barr have Geoffrey Berman fired?

The second immediate topic for the panel to address will be the firing of former U.S. Attorney for the Southern District of New York Geoffrey Berman. Last month, the attorney general announced that Berman—who has led the office through multiple politically charged investigations that have implicated President Donald Trump either directly or indirectly—was resigning. Soon after, Berman released a statement saying he was not resigning and had learned of that claim through the media. Berman has since testified that Barr spent the afternoon of the announcement attempting to “entice” him to leave the position with the offer of another job. House Judiciary Committee Chairman Jerrold Nadler has already stated that such an enticement could constitute evidence of bribery.

Nadler’s committee must determine: Why did Barr tell the public Berman had resigned? Why did he seek to replace Berman with a hand-picked acting successor instead of Berman’s deputy, Audrey Strauss, per the normal line of succession? Did Barr discuss Berman’s removal with anyone in the White House? For what specific purpose did he solicit a memo undercutting SDNY’s prosecution of Trump’s former attorney Michael Cohen? Did anyone at the Bureau of Prisons play any role in seeking to return Cohen from home confinement to prison amid word that he would be writing a book about Trump? Can Barr cite any precedent for the gag order seeking to prevent Cohen from writing that book about Trump?

Why did Barr protect Michael Flynn and Roger Stone?

Barr has played an outsize role in pressuring the career attorneys who prosecuted the cases against Trump allies Michael Flynn and Roger Stone to reverse key decisions. First, in February, Barr directly meddled to reduce Stone’s sentence recommendation after Stone was convicted of perjuring himself and tampering with a witness in order to protect Trump. Then in May, Barr took the unprecedented decision of directing the District of Columbia U.S. Attorney’s Office to drop charges against Flynn, one of Trump’s former national security advisers. Finally, earlier this month, Trump commuted Stone’s sentence hours after Stone gave an interview saying that he had not succumbed to “enormous pressure to turn on” Trump in a way that would have “eased my situation considerably.” Testimony during Stone’s trial indicated that Trump perjured himself in sworn testimony to Mueller about a conversation he had with Stone regarding the WikiLeaks release of hacked Hillary Clinton emails. Both Stone and Flynn could have potentially implicated Trump in felonies, and they have been protected directly by Barr. The key question to ask is: Why, specifically, did Barr go to such efforts to protect these two men?

What is the DOJ doing to assure that voting in November will be safe and free of intimidation?

Last month during an interview with NPR, Barr spread a false narrative that mail-in voting could provide the opportunity for the “possibility of counterfeiting” ballots. He should be asked to provide any evidence he has for the claim that mail-in voting might be marred by fraud. He should also be asked with whom in the White House he’s discussed his theories about voter fraud and if anyone in the White House has requested any specific set of actions around mail-in voting. What action—if any—does he plan to take to curb mail-in balloting? Election law expert and Slate contributor Richard Hasen also shared two possible key questions: Has Barr consulted with Department of Homeland Security officials about his claims of foreign interference with mail-in balloting? Given his apparent preference for in-person voting, what is the DOJ doing to assure that voting in November will be safe and free of intimidation?

What is the point of John Durham’s investigation into Crossfire Hurricane?

The investigation by U.S. Attorney for the District of Connecticut John Durham into the origins of the Crossfire Hurricane investigation of Donald Trump’s 2016 campaign has been going on for months. It continued even after independent DOJ inspector general Michael Horowitz had investigated the matter and determined in a 434-page report released late last year that there was no political interference in the case.

Why is Durham’s investigation needed, given Horowitz’s finding? Will Barr commit to releasing the findings of the Durham investigation before October, when it could have an outsize impact on the election? If not, why not, and when does he expect an outcome? What evidence is there that Horowitz got it wrong? Horowitz specifically “sought to determine whether there was evidence that political bias or other improper considerations affected decision making in Crossfire Hurricane, including the decision to open the investigation” and “did not find documentary or testimonial evidence that political bias or improper motivation influenced the decisions.” What did Barr mean when he stated that Horowitz “hasn’t decided the issue of improper motive” when Horowitz himself stated that he had?

Ultimately, Barr is likely to evade answering these questions, as he has done during Senate testimony in the past. Getting him to answer the questions directly under oath, though, is critical. A threat to hold him in contempt should be hanging over his head if he refuses.

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