(CN) – Wrapping up the confirmation hearing of Attorney General nominee William Barr, the Senate Judiciary Committee grilled several past officials Wednesday on the president’s power to control the entire executive branch.
A legal theory that Barr backed strongly in his time before the committee Tuesday, the notion of the “unitary executive” has taken on profound implications in the wake of the investigation by Special Counsel Robert Mueller into how Russian interfered in the U.S. presidential election.
“Let’s say that the president does fire Mueller and that firing could be part and parcel of an obstruction of justice investigation,” Senator Mazie Hirono posited in an exchange with Neil Kinkopf, who served as a special assistant in the Justice Department’s Office of Legal Counsel under President Bill Clinton.
“Under the unitary executive theory,” the Hawaii Democrat added, “can a president commit obstruction of justice with impunity?”
Kinkopf pointed in response to Barr’s 2018 memo on the Russia investigation, in which the Trump nominee suggested last year Mueller was investigating the president improperly.
“The Barr memo allows that there may be circumstances where a president could be understood to have committed obstruction of justice,” Kinkopf said, adding that this does not mean he can be charged.
Though Barr testified before the Senate Tuesday that he would not carry out Trump’s instructions to fire Mueller, Kinkopf focused on how the thought experiment could have gone a step further.
“He should be asked, if that were to transpire, would he resign?” Kinkopf said.
Michael Mukasey, an ex-New York federal judge and a former U.S. attorney general under President George W. Bush, testified before the panel Wednesday as well.
In an attempt to turn the tables on the Democratic questioners, Senator Chuck Grassley grilled Mukasey about how Obama’s former Attorney General Eric Holder once referred to himself as the president’s “wingman.”
Mukasey told the Iowa Republican that this word would not fit Barr.
“He isn’t anybody’s wingman,” Mukasey said. “I think he understands that if he so behaved, he would come back to the Justice Department to find a stack of resignations on his desk.”
When pressed on his pushback to the second Bush administration, Mukasey balked at providing a specific answer in open session.
“Did you ever say no to the White House?” asked Senator Amy Klobuchar, a Minnesota Democrat.
“Uh, yes,” Mukasey replied after some hesitation.
“I remember one in particular, and I don’t think that I can discuss it here,” he continued. “The White House was of a particular view, and the Justice Department was of a particular view, and we prevailed.”
In the Trump administration, Mukasey has since become a reliable ally. He notably served as co-counsel to Trump’s attorney Rudy Giuliani in the case of gold trader Reza Zarrab, the man behind the biggest money-laundering scheme to Iran in U.S. history.
As Zarrab’s attorneys, Mukasey and Giuliani unsuccessfully tried to arrange a prisoner swap between the Trump and Erdogan governments that would have scuttled the Obama-era case and left the sanctions evasions unpunished.
Beyond the Mueller probe, the senators pressed witnesses Wednesday on implementing the First Step Act, the bipartisan criminal-justice reform initiative that Trump signed last year. Civil rights leaders agreed today in their testimony that the law will be toothless without an attorney general to implement it.
“I think the nominee should be asked to rescind the Sessions guidance where he directed attorneys to seek maximum sentence,” former New Orleans Mayor Marc Morial advised.
During his brief tenure in the Trump administration, former Attorney General Jeff Sessions reversed Holder’s guidance that prosecutors should use their discretion in their charging decisions.
Morial, who now leads the civil rights group National Urban League, said that mandating that prosecutors always seek the heaviest charges goes against the spirit of criminal-justice reform.
Senator Dick Durbin reflected on what he called his “worst vote,” a draconian punishment for crack cocaine, during the questioning of NAACP President Derrick Johnson.
“We came down as hard as we could,” Durbin said, describing the Anti-Drug Abuse Act of 1986 which carried 100:1 sentencing disparities between crack and powder cocaine, while also enacting new mandatory-minimum sentences.
“I look back on it as a big mistake, one of the worst I’ve ever made as a public official,” he added.
Johnson questioned whether similar remorse haunts Barr, who escalated the war on drugs in the 1990s as attorney general under then-President George H.W. Bush.
“I have not heard that from the nominee,” Johnson said. “That’s my concern.”
Civil rights activists also view Barr as someone who will continue to ignore enforcement of the Voting Rights Act, still weakened by the 2013 decision Shelby County v. Holder.
Predicting that the ruling will one day rank with Dred Scott and Plessy v. Ferguson, Morial told Senator Hirono that enforcement of the remaining provisions of the Voting Rights Act have gone into a “deep freeze” under the Sessions administration.
Johnson appeared troubled by Barr’s praise of his predecessor in this regard.
“Commending Attorney General Sessions’ tenure as AG is also concerning,” Johnson said.
Senator Lindsey Graham pressed Johnson on this criticism, touting his own record voting for Obama picks Holder and Loretta Lynch.
“It never crossed my mind that I would vote against them because I had policy disagreements,” Graham said. “If that’s going to be the new standard, none of us are going to vote for anybody on the other side.”
As the South Carolina Republican prepared to end his remarks, Johnson interrupted to respond: “If I may, Mr. Chair?”
“Going beyond policy disagreement, this nation has had a long history of discriminatory practices, particularly in the criminal-justice system,” Johnson noted. “Any time we have a nominee before this committee who truly don’t appreciate the disparities in the criminal-justice system, as he stated yesterday, that goes beyond policy disagreement.”
A testy exchange of cross-talk followed, as Johnson completed his thought over attempts by Graham to chime in.
“That goes toward whether or not the equal protection of the law should be afforded to all citizens,” he concluded.