Just months after public scrutiny over his part in the rollout of the Mueller report had faded, Attorney General William Barr is back in the spotlight.
The release of a readout of a July call between President Donald Trump and Ukrainian President Volodymyr Zelensky has once again put Barr at the center of a scandal involving the US and a foreign government.
On that call, Trump repeatedly encourages Zelensky to have his government work with Barr to launch an investigation into former Vice President Joe Biden’s role in the firing of a former Ukrainian top prosecutor. And Trump concludes the conversation by telling his Ukrainian counterpart he will instruct his personal lawyer Rudy Giuliani (who does not hold any government office) and Barr to give Zelensky a call to discuss the matter.
It is not clear whether Barr ever did speak with the Zelensky administration about the matter, a conversation that would have involved the president’s attorney general collaborating with a foreign government to investigate a potential political rival.
But Barr’s statements to Congress, particularly those he gave during May testimony about his handling of the release of the Mueller report, have many Democrats concerned the attorney general will attempt to shield the president from inquiries — including a recently launched impeachment inquiry — into potential wrongdoing and that he will refuse to investigate the allegations Trump faces.
Here are five questions he could answer to assuage those concerns.
1. Did President Trump discuss a Biden-Ukraine investigation with Barr?
Trump made it clear he wanted Barr to speak with the Ukrainian government about launching an investigation into Biden on his call with Zelensky, mentioning it four times.
Trump believes, despite there being no evidence for this, that Biden lobbied to have the top Ukrainian prosecutor fired in 2016 in order to protect his son, Hunter Biden, from an investigation into a Ukrainian company Hunter sat on the board of. It isn’t clear whether there was an active investigation into that company at the time of the prosecutor’s dismissal but it is clear that the prosecutor was fired for not being aggressive enough in his anti-corruption investigations.
Despite those logical inconsistencies, Rudy Giuliani, the president’s personal lawyer, has pushed this narrative for some time and brought it up with Trump as early as May. At that time, the president told Politico he thought it would be wise to task Barr with looking into the Bidens.
“Certainly it would be an appropriate thing to speak to him about, but I have not done that as of yet,” Trump said. “It could be a very big situation.”
Giuliani told CNN last Thursday that he “of course” asked Ukrainian officials to look into Joe and Hunter Biden. He did not say whether Barr joined him in any of those conversations.
Wednesday, a Justice Department spokesperson wrote in a statement:
“The President has not spoken with the Attorney General about having Ukraine investigate anything relating to former Vice President Biden or his son. The President has not asked the Attorney General to contact Ukraine — on this or any other matter. The Attorney General has not communicated with Ukraine on this or any other subject. Nor has the Attorney General discussed this matter, or anything relating to Ukraine, with Rudy Giuliani.”
The statement leads to a number of unanswered questions, chief among them why the president spoke publicly about instructing Barr to speak with Ukraine but never followed up privately.
And though the statement is emphatic, the Justice Department has been criticized for releasing explicit statements that were later found to be not exactly truthful during moments of potential presidential crisis before, namely during the release of the Mueller report.
At that time, Barr said Mueller’s work proved there was “no collusion” between the Trump campaign and Russia. That was inaccurate, as Vox’s Andrew Prokop has explained:
“If we had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice, we would so state,” Mueller writes. “We are unable to reach such a judgment.”
The report makes several things clear: that the Russian government tried to help Trump win, that the Trump campaign was eager to benefit from hackings targeting Democrats, that Trump’s campaign advisers had a host of ties to Russia, and that President Trump tried again and again to try to impede the Russia investigation.
So although it would be too much to say the Justice Department is lying about Barr’s potential involvement with a Ukraine investigation, it is fair to say it ought to be taken with a grain of salt, particularly given outstanding questions over Barr and his handling of the Mueller report.
2. Did William Barr mislead Congress?
Two exchanges Barr had during his congressional testimony about the Mueller report on May 1 are of concern to his critics.
The first was with Sen. Kamala Harris, who asked, “Attorney General Barr, has the president or anyone at the White House ever asked or suggested that you open an investigation of anyone?”
Barr eventually answered, “I’m trying to grapple with the word ‘suggest.’ I mean, there have been discussions of matters out there that they have not asked me to open an investigation but — ”
Harris interrupted him and asked if “perhaps they’ve suggested?” To which Barr said, “I wouldn’t say ‘suggest.’”
He refused to say what he would say and did not elaborate on what “discussions of matters” he may have come across.
Wednesday, Harris called on Barr to return to Congress to answer those same questions again, this time focused on Trump and Ukraine.
I asked Attorney General Barr in May: did the White House ever ask him to investigate anyone? He wouldn’t answer.
Barr needs to come back to Congress and answer that question again. Under oath.
This time, he better have an answer. https://t.co/ybObJ1GC53
— Kamala Harris (@SenKamalaHarris) September 25, 2019
The Department of Justice has said Trump did not ask Barr to participate in any investigation into Biden, that Barr did not take it upon himself to contact Ukraine, and that the attorney general never discussed the issue with Giuliani. The department’s statement also says Barr was not aware of the call until several weeks after it took place. But it isn’t clear if the attorney general did have knowledge of Giuliani’s own investigative efforts or of Trump’s interest in the subject. And his answers to Harris’s questions will do little to quiet those who may believe he did in fact know of Trump’s desire to have Ukraine investigate Biden.
The other exchange of note involved Sen. Chris Coons.
“If a foreign adversary … offers a presidential candidate dirt on a competitor in 2020, do you agree with me that the campaign should immediately contact the FBI?” Coons asked.
Barr again paused and Coons clarified his question; Barr responded, “If a foreign government? If a foreign intelligence service? If a foreign intelligence service does, yes.”
Chris Coons: Going forward, if a foreign adversary offers a presidential candidate dirt on a competitor, should they immediately turn it over to the FBI?
Bill Barr: [long pause before answering] pic.twitter.com/4gN3ZDVQ0y
— Keith Boykin (@keithboykin) May 1, 2019
The distinction between a foreign government and a foreign intelligence service was noted at the time, with Vox’s Li Zhou pointing out the answer “precluded him from condemning actions that members of the Trump campaign had previously engaged in.”
But it also serves to defend Trump from the new allegations he faces with his Ukraine call. Trump did not speak to any Ukrainian intelligence agencies on that call; he spoke with that country’s president. Trump clearly asks Zelensky to look into Biden and clearly believes an investigation will reveal Biden did something wrong; the memo on the call has Trump saying, “There’s a lot of talk about Biden’s son, that Biden stopped the prosecution and a lot of people want to find out about that, so whatever you can do with the attorney general would be great … It sounds so horrible to me.”
This is a case of the president asking a foreign government to investigate a potential political rival. Had Ukraine investigated and returned information on Biden’s role, even if that information just contained what is already public (and that shows Biden did nothing wrong), that information would still constitute opposition research, or, in Coon’s words, “dirt on a competitor.” And accepting that information would have seen Trump doing exactly what his campaign was accused of doing in 2016.
3. Is the Department of Justice protecting Trump?
Trump has said he wanted Ukraine to investigate Biden, but also at issue is whether he attempted to leverage $391 million in military aid to do so. Congress approved that money early this year but it wasn’t disbursed until September, leaving many on Capitol Hill and in Ukraine wondering what was behind the delay. The White House reportedly instructed anyone who asked about the money to be told it had been held up by an “interagency process.”
Trump has publicly given various reasons for this delay, including that he was concerned about corruption and that he wanted the US to give Ukraine less and NATO allies to give more. And he has denied holding it for ransom in exchange for an investigation, telling reporters at the White House Sunday, “No quid pro quo, there was nothing.”
But in the memo of the call with Ukraine, Zelensky brings up his country’s national security and mentions his desire to buy more weapons from the US.
In response, Trump does not discuss military aid but says, “I would like you to do us a favor though,” before introducing into the conversation the question of Ukraine collaborating with Barr on investigations into a consulting firm that has worked with Democrats.
This, Trump’s critics argue, is quid pro quo and is Trump offering to purchase information potentially damaging to Democrats with taxpayer money. That is not something the law smiles upon. But the Justice Department does not believe concerns over the president’s intent warrant any inquiry, which leads to the question: Is the Department of Justice attempting to protect Trump?
Democrats opposed to Attorney General Barr’s confirmation feared he would be more loyal to Donald Trump than to the Constitution, as Vox’s Andrew Prokop has explained:
Barr faces questions about his impartiality, for a few reasons. First, he had discussed joining Trump’s defense team in 2017. Then, in June 2018, he wrote a lengthy memo criticizing what he thought was Mueller’s theory behind the obstruction of justice investigation — and said Mueller shouldn’t be permitted to subpoena President Trump. He distributed that memo not only to the Justice Department but also to lawyers close to the president.
Barr overcame those concerns to become attorney general. But his handling of the Mueller report led to his critics arguing he is primarily concerned with, as Rep. Jerry Nadler put it in April, working “on behalf of President Trump.”
The release of an opinion Wednesday by the Office of Legal Counsel, which is part of the Justice Department, has done little to silence those critics.
Trump’s call with Zelensky is now a matter of public concern because of a complaint filed by a whistleblower about a month ago. It is still unclear exactly what the whistleblower’s complaint contains, but a September letter from the intelligence community’s inspector general to Rep. Adam Schiff, chair of the House Intelligence Committee, says “[it] relates to one of the most significant and important of the [director of national intelligence’s] responsibilities to the American people.”
By law, the report should have already been released to Congress members given the inspector general for the intelligence community classified it as a document of “urgent concern,” which, as Vox’s Andrew Prokop has explained, is “a legal standard that normally requires congressional oversight committees be notified.” Its release was halted by Joseph Maguire, the acting director of national intelligence, a move some legal experts have said was illegal.
Wednesday afternoon, it was finally released to Congress.
But before that happened, in a decision reminiscent of Barr’s press conference ahead of the release of the Mueller report, the Office of Legal Counsel (OLC) released a summary of the whistleblower’s complaint earlier Wednesday. That opinion minimized the complaint’s contents, stating the whistleblower had “heard reports from ‘White House officials’” that the “President had made statements that the complainant viewed as seeking to pressure that leader to take an official action to help the President’s 2020 re-election campaign.”
This statement would seem to negate arguments that there was any quid pro quo and would reduce the whistleblower’s complaint to hearsay. The OLC opinion also states the office found the complaint “does not involve an ‘urgent concern’” standard, meaning it did not need to be shared with Congress, thus shielding Maguire from any wrongdoing.
“Does not involve an ‘urgent concern’” does not seem likely to become the new “no collusion,” but the opinion does make the complaint seem less damaging for the president than previous reporting had. But given Barr’s efforts to spin and minimize the contents of the Mueller report ahead of its release, the president’s critics are finding it difficult to take the OLC opinion at face value.
And as the president now faces an impeachment inquiry, convincing the public he has done nothing wrong will be important for Trump — and having an ally who is willing to ensure his department helps in crafting this narrative will be invaluable.
4. Does William Barr believe a president is above the law or immune to outside scrutiny?
The Mueller’s report states “a fundamental principle of our government” is that not even the president “is above the law.”
But the Department of Justice’s official position on the matter is that a sitting president cannot be indicted.
Barr has argued that position doesn’t place a president above the law because he or she can still be charged with a crime, and told CBS in May he was “surprised” Mueller used that position as part of the reason he didn’t charge the president with a crime or even give an opinion as to if Trump broke the law.
“He could’ve reached a conclusion,” Barr said. “The opinion says you cannot indict a president while he is in office but he could’ve reached a decision as to whether it was criminal activity.”
So no, Barr does not appear to believe the president is above the law, but he does appear to plan to adhere to current Justice Department guidance that shields the president from indictment, meaning the results of any DOJ investigation into alleged presidential misconduct would need to be reviewed and adjudicated by Congress, which would then choose to impeach Trump or leave him in office.
5. Will William Barr recuse himself from upcoming DOJ investigations?
This is a question with an easy-to-guess answer: Probably not.
During his confirmation hearing, Barr was asked if he would recuse himself from the Mueller investigation given his previous statements about its validity. He answered by saying he’d “seek the advice of the career ethics personnel,” and said, “Under the regulations, I make the decision as the head of the agency as to my own recusal.”
He did make his own decision and decided not to recuse himself. To be clear, there aren’t any publicly reported DOJ investigations into Trump’s conversations with Zelensky so far. But if the department did get involved down the road, given that Barr had publicly expressed his negative opinions about the Mueller investigation and arguably had multiple reasons to recuse himself from that work and did not, it is difficult to see why he would recuse himself from any investigations into Trump’s call with Zelensky. Or into any of the other allegations laid out in the whistleblower’s complaint, which reporting has suggested contains concerns beyond that call.
The chairman of the House Judiciary Committee, Rep. Jerry Nadler, has called for Barr to recuse himself from any Department of Justice work that involves the growing scandal around Trump’s call with Zelensky. But despite this demand, Barr is probably here to stay.