On Friday morning, acting attorney general Matthew Whitaker will testify publicly before a decidedly unfriendly House Judiciary Committee, where Democrats will ask him about the Mueller investigation and his decision not to recuse himself. It will be the first time this Congress a Cabinet-level official has testified publicly before a committee of the Democratic House. It is unlikely to go well.
Nor should it. To say that Whitaker’s tenure as acting attorney general has been an embarrassment to the nation is an understatement. After Jeff Sessions was fired last November, Whitaker was raised to the role apparently on the merits of his history of denouncing the special counsel investigation on cable TV, and promptly refused to recuse himself from that investigation despite a top Justice Department ethics official advising him to do so. Since then, he has repeatedly shown that he is in way over his head at the Department, as when he asserted last week that the “decisions” of the Mueller investigation—which, he suggested, is “close to being completed”—“are going to be reviewed, you know, either through the various means we have.” Even the run-up to Friday’s hearing read like satire, with Whitaker trying at the last moment to wriggle out of testifying by demanding that the committee pledge not to subpoena him, then rushing to the media arm of the Heritage Foundation to complain that “the reputational hits are drive-by half-truths.”
The good news is that the Whitaker show is unlikely to last much longer at the Department of Justice. On Thursday, the Senate Judiciary Committee voted to recommend the confirmation of President Trump’s permanent successor to Sessions: William Barr, who previously served as George H. W. Bush’s attorney general in the early 1990s. Throughout his career, Barr has demonstrated himself to be a serious legal thinker and a public-minded civil servant with a deep respect for the rule of law. Trading Whitaker in for him will be one of the Trump presidency’s rare blessings.
All this is what makes Senate Democrats’ continued stand against Barr’s nomination so frustrating. Each of the Judiciary Committee’s 10 Democrats voted to block Barr’s confirmation, arguing that he had not given them sufficient assurances that he would allow special counsel Robert Mueller’s investigation into the Trump campaign’s ties to Russian election meddling to proceed unmolested.
It is true that Barr, during his testimony before the Judiciary Committee, declined to make specific promises about how he would carry out his role overseeing the Mueller investigation. But his testimony made plain that his reticence to make such promises sprung not from a surreptitious desire to protect the White House from legal peril, but from a stubborn resolve not to sign away the authority of the attorney general just to win himself more votes in the Senate. “I’m not going to surrender the responsibilities of the attorney general to get the title,” he told Sen. Mazie Hirono then. “I don’t need the title.” Meanwhile, he could not have stated more emphatically that he intended to let the Mueller investigation run its course: “I believe it is vitally important that the special counsel be allowed to complete his investigation,” he testified then. “If confirmed, I will not permit partisan politics, personal interests, or any other improper consideration to interfere with this or any other investigation. I will follow the special counsel regulations scrupulously and in good faith, and on my watch, Bob will be allowed to complete his work.”
As Sen. Patrick Leahy correctly pointed out during Barr’s testimony, we live in an extraordinary moment, where the rule of law appears beset by powerful interests on all sides. But what such times call for is precisely officials like Barr: men who will dispassionately dispatch the law without considering the partisan interests involved. “In the current environment, the American people have to know that there are places in government where the rule of law—not politics—holds sway, and where they will be treated fairly based solely on the facts and an even-handed application of the law,” he said during his testimony last month. “The Department of Justice must be such a place.” By joining with Republicans in support of Barr’s nomination, Senate Democrats could hand the new attorney general a powerful mandate to handle the eventual results of the Mueller investigation according to that pledge. They refuse to do so to the nation’s detriment, and to their own.