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William Barr's Testimony Before the Senate Appropriations Subcommittee on Commerce, Justice, Science, and Related Agencies. Aired 10:30-11a ET

Aired April 10, 2019 - 10:30   ET



WILLIAM BARR, U.S. ATTORNEY GENERAL: reviewing both the genesis and the conduct of intelligence activities directed at the Trump campaign during 2016. And a lot has already been -- a lot of this has already been investigated and a substantial portion of it has been investigated and is being investigated by the Office of Inspector General at the department.

But one of things I want to do is pull together all the information from the various investigations that have gone on including on the Hill and in the department and see if there any remaining questions to be addressed.

SHAHEEN: And can you share with us why you feel a need to do that?

BARR: Well, you know, for the same -- well for the same reason were worried about foreign influence in elections we want to make sure that during a -- I think spying on a political campaign is a big deal, it's a big deal. The generation I grew up in which is the Vietnam War period, people were all concerned about spying on antiwar people and so forth by the government and there were a lot of rules put in place to make sure that there's an adequate basis before -- before our law enforcement agencies get involved in political surveillance.

I'm not suggesting that those rules were violated but I think it's important to look at that and I'm not -- I'm not talking about the FBI necessarily but intelligence agencies more broadly.

SHAHEEN: So you're not -- you're not suggesting though that spying occurred?

BARR: I don't -- well I guess you could -- I -- I think there is spying did occur. Yes, I think spying did occur.

SHAHEEN: Well let me...

BARR: But the question is whether it was predicated -- adequately predicated and I'm not suggesting it wasn't adequately predicated but I need to explore that. I think it's my obligation. Congress is usually very concerned about intelligence agencies and law enforcement agencies staying in their proper lane and I want to make sure that happened. We have a lot of rules about that and I want to say that -- that I've said I'm reviewing this. I am going -- I haven't set up a team yet but I do have in mind having some colleagues help me pull all this information together and -- and let me know whether there are some areas that should be looked at.

And I also want to make clear is not launching an investigation of the FBI. I -- frankly I'm, to the extent there were there were any issues at the FBI, I do not view it as a problem that's endemic to the FBI. I think there was probably a failure among a group of leaders there at the upper echelon and so I don't like to hear attacks about the FBI because I think the FBI is an outstanding organization and I think Chris Wray is a great partner for mayhem(ph). I'm very pleased that he's there as the director.

If it becomes necessary to -- to look over some former official's activities I expect that I'll be relying heavily on Chris and -- and work closely with him in looking at that information. But that's what I'm doing. I -- I feel I have an obligation to make sure that government power is not abused. I mean I think that's one of the principal roles of the attorney general.

SHAHEEN: I -- I certainly agree. I think we all have an obligation to ensure that government power is not abused. The question I have is what happens when the executive is potentially playing that role and that's where it doesn't seem to me there has been adequate oversight. Thank you Mr. Chairman.

MORAN: Senator Collins.

COLLINS: Thank you Mr. Chairman. Welcome Mr. Attorney General. Last June your predecessor, then Attorney General Sessions announced that the department would no longer defend the Affordable Care Act's preexisting conditions provisions because they were inseparable from the ACA's individual mandate. Two weeks ago, your department went much further deciding that it would not defend any provisions of the ACA.

This puts at risk other important provisions in addition to protection for people with preexisting conditions such as the Medicaid expansion dependent coverage for young adults up to age 26 and coverage for preventive services.

[10:35:00] Now the individual mandate is a highly-regressive penalty and I've long opposed it and Congress repealed it. But I disagree strongly with the department's decision not to defend the rest of the ACA. In a letter that I wrote to your predecessor last June and to you on April 1, I made the point that the individual mandate can be struck down and severed from the ACA while the remainder of the law can stay in place.

And this isn't just my opinion. In 2010, the Chief Justice Roberts said in the Free Enterprise Fund case that under the doctrine of severability that generally speaking when confronting a constitutional flaw we try to limit the solution to the problem severing any problematic portions while leaving the remainder in tact.

In 1990 when you were head of the department's Office of Legal Council under President George Herbert Walker Bush, you offered an opinion finding that the president could enforce the remainder of statute after an unconstitutional provision had been severed. I agree whole heartedly with your 1990 opinion. What led you to take a different approach?

BARR: Thank you, senator. When I visited with you before my confirmation, I promised you that I would personally take a look at this issue, and I did. And I studied I carefully and I provided my views robustly within the deliberative process that was going on with the Executive Branch.

As I've said when the attorney general is providing legal advice I think the first obligation is to provide the advice that you think is the right legal answer and how you would decide the case if you were a judge, which is what was the advice I gave.

But I also have said if the other stakeholders in the Executive Branch and the people involved, the agencies and so forth end up in a different place, as litigator of the United States, the attorney general should be able to advance positions that he believes are defensible and reasonable legal positions even if they are not positions that the attorney general would adopt of the attorney general was the judge deciding the case.

In this situation, the ultimate decision was to support the position of the states including Texas and the decision of the district court judge. The rationale for that is that it is a defensible and reasonable legal position given that that was the decision of the district court and the position of four justices on the original NFIB case who felt that when if the mandate goes, the rest of the statute goes.

I know there's an additional point there which is the fact that Congress did take out the penalty from the mandate, and therefore, should that act be viewed as essentially validating the rest of the statute? And those issues were debated, but at the end of the day I felt that the position was a defensible position and it was the decision of the Executive Branch.

COLLINS: I would just make the final point that Congress had the opportunity to strike other provisions and chose not to.

BARR: Yes.

COLLINS: Thank you, Mr. Chairman.

MORAN: Thank you, Senator Collins. Senator Leahy.

LEAHY: Thank you. Thank you, Mr. Chairman. Attorney General, thank you for being here. Over the decades we've had a chance to talk at these hearings many times. I -- let me go back to the discussion of your March 24th letter and you said the president did not commit obstruction of justice.

[10:40:00] You said that before any reference to Congress. Of course, you have the position that no matter the evidence you don't believe a president can be indicted while in office. You said the mechanism is through the ballot or Congress, not at criminal courts. Did you have any conversation with the special counsel about why he did not reach a conclusion one way or the other on obstruction?

BARR: Yes, I did. And he also has a fuller explanation of that in the report that I'll be making available hopefully next week.

LEAHY: Did he express any expectation or interest in leaving the obstruction decision to Congress?

BARR: Not that -- he didn't say that to me, no.

LEAHY: So he said the obstruction decision should be up to you?

BARR: He didn't say that either, but that's generally how the Department of Justice works. Generally grand juries are to investigate crimes and a prosecutor's role at the end of the day is binary. Are there charges or no charges or is this a crime or not a crime?

LEAHY: I've had some experience...

BARR: I know. I saw you would agree with me, but let me say that I don't feel -- you know, I'm looking forward to explaining my decision that I briefly outlined in the March 24th letter, but I don't feel I can do it until the report is out because I think it's -- because I think the report contains a lot of the information that would give meaning and content to the discussion, and I really can't do it in the absence of getting it out. So I'm anxious to get it out. That's what I've been working toward, and...

LEAHY: Well, let me...

BARR: ... I said I'd come up to the Hill as soon as they will have me, which I guess is at the end of the month to testify about that.

LEAHY: A sort of follow up and something that Senator Moran asked in determining what should be redacted, have you overruled Mr. Mueller or his team on any redaction question?


LEAHY: One way or the other?


LEAHY: OK. Have you discussed any specific redactions with the White House?


LEAHY: Just curious, before this came out you were at a semiannual (ph) St. Patrick's Day even at the White House with the Prime Minister of Ireland exchanging shamrocks and so on. You had a long discussion and apparently a very -- you both seemed very happy with (ph) the discussion you and the president. We're you discussing the report?

BARR: Was I?


BARR: No, it was actually in front of several justices of the Supreme Court...

LEAHY: I understand.

BARR: ... and other dignitaries. I wasn't alone with the president.

LEAHY: OK. You sure of that?

BARR: What?

LEAHY: So anybody thinking they heard you say anything else would be wrong?

BARR: Right.

LEAHY: OK. If in any case you redact grand jury material, but of course in both the Watergate and the Ken Starr investigations grand jury secrecy was overcome to allow Congressional access. Have you asked the District Court to release grand jury material to Congress?

BARR: Did you say -- were you citing the Starr investigation?

LEAHY: And the Watergate. Yes.

BARR: OK. Well the Starr -- the Starr investigation involved a specific statute that --

LEAHY: Rule 6C (ph)? 6C rather (ph)?

BARR: No, no, the -- the Starr -- the statute setting up the independent counsel provided for the report going to Congress and overrode 6C (ph). So I don't view the Starr situation as --

LEAHY: Well have you -- but more specifically, have you asked the district court to release grand jury material?

BARR: No. The law right now is, in the District of Columbia, that the -- the court can only waive 6C (ph) for one of the grounds specified specifically in 6C (ph). There's no sort of inherent power in the court to do that and if someone shows me -- and -- and -- and, you know, I think makes a persuasive argument that it's covered, I'm willing to listen to that, but I don't see a --

LEAHY: And lastly on the (ph) dollar amount, your budget we're told from ATF would result in 300 -- could lose 370 positions under the president's budget even though it shows a slight increase because of attrition, everything else. Are you satisfied with ATF in a time of violent crime, everything else, losing these positions?


BARR: Are you talking about the 377 positions that Mr. Brandon (ph) had mentioned?

LEAHY: I understood 370, but --


LEAHY: -- whichever.

BARR: Yes, I -- I -- I -- we don't think he -- he will lose those positions. There's some complicated accounting here that I'm sort of a little mystified by myself, but as I understand it we've been continually investing and increasing the number of ATF agents and they were worried about bringing on too many agents in excess of funds that were going to be appropriated and they had sort of -- the way they quickly make up for that is to just take out headcount rather than make cuts across the board. We don't think that they are and I -- and -- and Mr. Lofthus here can give you more of an explanation if you'd want one but let me just say the ATF --

LEAHY: My time is up but I really would like more because (inaudible) 370 or the administration's 46, either way, it looks very much like cuts in ATF.

LOFTHUS: I can add, Senator, just say that ATF does have a four percent increase in this budget and I have spoken with the ATF chief, I think he's a outstanding guy, I've worked closely with him over many years and I do know that they are concerned about the resources in their budget but we have looked at the four percent increase. We don't think the four percent increase translates into a loss of hundreds of positions but we're willing to work very closely with ATF and make sure that we can protect their -- certainly their agents. And again, any money that ATF receives I think can be put to very good use and we look forward to working with both ATF and the committee on this -- on this one.

LEAHY: Thank you.

MORAN: Senator Leahy, thank you. We have four -- three votes scheduled at 11:45. My intention is to go until those votes are called and don't anticipate coming back after that occurs. Senator Kennedy's recognized.

KENNEDY: Thank you, Mr. Chairman. General, I don't intend to talk much about your budget. I -- I -- I think we both know that Congress will make sure that you're adequately funded. I -- I want to talk a little bit about the Mueller report. I think was inevitable that some people were going to be disappointed in -- in result or results that Mr. -- Mr. Mueller reached. You can all -- you can only be young once, you can always be immature. There will be some who were so disappointed in the result that they're going to attack the process in bad faith. I would strongly encourage you to -- to -- to ignore that. Just call them like you see them. Follow the law.

If you -- can we agree that if you turned over the Mueller report without grand jury material redacted to only members of Congress, can we agree that there is a material risk that the grand jury information would leak? BARR: I think so.

KENNEDY: I mean, it's been known to happen.

BARR: Yes, occasionally.

KENNEDY: Yes. (Inaudible), why -- why would that be bad?

BARR: Well, because we depend on the secrecy of the grand jury for our whole system of justice and people have to be assured when they go into the grand jury that they -- that these are going to be confidential sessions.

KENNEDY: I got it. I got it. Can we agree that if you turned over an unredacted report to the members of the United States Congress that included material that might impair an existing investigation or investigations that there's a material risk that that information might leak?

BARR: Yes, Senator, there's a --

KENNEDY: Why's that bad?

BARR: Well, it -- presumably the reason people are interested in -- in seeing the report is because they believe it's important for the criminal justice process to work.

KENNEDY: Yes, sit.

BARR: Allowing this other information to come out would frustrate, from the prosecutor standpoint, the system from working in other cases and from the defendant's standpoint would be unfair -- potentially unfair to the defendant.

KENNEDY: Let's talk about reputational risk. If you turn over a report --

BARR: Excuse me, Senator, could I just add something?

KENNEDY: Certainly.

BARR: In some of these cases there are gag orders from the court prohibiting this information from going out.

[10:50:00] KENNEDY: OK. If you return -- turn over an unredacted report containing unredacted information that could -- could -- could raise reputational risk. Can we agree there's a material risk that that would leak?

BARR: Yes, Senator.

KENNEDY: Why's that bad?

BARR: Well, it goes back to the -- if someone has not committed a crime at the end of the day and in this context if they're not public officeholders, they're private citizens, they -- they -- the government is not a position to say they did anything wrong, it would be unfair from -- just fundamentally unfair to put that information out.

KENNEDY: Would that be especially the case if someone thought their communication was confidential?

BARR: Yes.

KENNEDY: Kind of like Dr. Ford. Who thought she was making a confidential communication. Until some member of the judiciary committee or their staffs turned her life upside down and leaked that.

BARR: I'm not aware of the circumstances myself.

KENNEDY: I'm not either. I wish I were. It was probably the greatest injustice I've seen in the time I've been here. Let me talk a little bit in the minute I have left. And I'm going to land this plane on time, Mr. Chairman. I know you're taking a look at -- at the genesis of the investigations with respect to the 2016 election. Just quickly, can we agree that the FBI is the premier law enforcement agency in all of human history?

BARR: Absolutely. And ...

KENNEDY: Can we agree that we want FBI agents, and Justice Department members to have thought about the world, thought about socioeconomic problems, and thought about how to solve those problems. You don't want a dummy working for the FBI or the Justice Department, correct? But they're not supposed to act on those political beliefs, are they?

BARR: No, senator.

KENNEDY: It appears to me -- I'm not going to ask you this question -- that there were a handful of men and women at the FBI, and possibly at the Department of Justice, who did act on their political beliefs in 2016. Some of them were for Donald Trump. You don't believe me ask Secretary Clinton. Some of them were for Secretary Clinton. You don't believe me ask President trump, and that's not right. And we need to stop this from ever happening again.

My plane has landed.

MORAN: Thank you, Senator Kennedy.

Senator Reed.

REED: Well, thank you very much, Mr. Chairman. Thank you, Attorney General. Let me return to your March 24th letter to the Judiciary Committee and along the lines of Senator Leahy. You quote the special prosecutor -- excuse me -- Director Mueller with respect to the allegations of obstruction of justice, and you say while this report goes not conclude that the president committed a crime, it also does not exonerate him. Which raises the question in my mind, did the special counsel find probable cause that a crime had been committed?

BARR: I'm not going to characterize his report. The report will speak for itself, and that's why I want to get it out.

REED: Well, then let me just follow up.

BARR: But I think my letter says that he did not find a crime was committed.

REED: No, I understand that. But it's -- I think important to know that you took his language, and said I did not find a crime, but I can't exonerate the president. That suggests that there's a possibility that probable cause existed for a crime. However, someone, either Director Mueller or yourself, made a determination that the evidence would not be beyond -- could not convince a jury beyond a reasonable doubt, or that the policy of the department was not to charge the president because the constitutional issue of impeachment.

So, this is a -- again I'm trying to understand why not only Director Mueller said this, but you repeated it, that the President was not exonerated from the obstruction of justice allegations.

BARR: As I explained yesterday, I was trying to state just the bottom- line conclusions and not characterize it or try to summarize the report beyond just stating it's bottom-line conclusions, and I thought the best way of doing that was taking that language from Bob's -- Mueller's report and...


REED: Let me sort of turn the question around. If there was no evidence of (ph) probable cause, then I would presume he could've said very clearly that there was no crime committed, that he could in fact exonerate the president, as he seems to have done with the allegations of conspiracy between the campaign and Russia.


BARR: I think that sentence says he didn't find -- he's not finding that there was a crime and he's not exonerated. I ...


BARR: ... and try to characterizing his reasoning or his report. That why it's important to get the whole report out instead of trying to read these little tea leaves (ph).

REED: No, I absolutely...

BARR: Probably cause is a very low standard for determining when you start investigating something. A lot of things have probably cause.

REED: I understand that, but I think it's important. I agree with you completely. It's important to get the whole report out to the American public because there are serious questions that we're just going back and forth on, and your response, I think, is very critical.

Those questions aren't going to be resolved until the American people see this report. Not sections of it, not paraphrases of it, but this entire report.

Let me just quickly ask another question which is do you have any specific evidence that there was anything proper in the counter intelligence investigation by the FBI or anything improper in the way the investigation was carried out by the special counsel with respect to the 2016 election? Do you have any evidence?

BARR: I'm sorry. That was a compound question.

REED: Compound question. There was a counter intelligence investigation by the FBI with respect to the 2016 election involving primarily the Trump campaign. There was the investigation by Director Mueller into the 2016 campaign and other issues. Have you any evidence that there was anything improper in those investigations?

BARR: I've not specific evidence that I would cite right now. I do have questions about it.

REED: So this panel you're putting together is...

BARR: I'm not putting together a panel.

REED: So you just have some interest in this. You don't have any evidence.

BARR: I have concerns about various aspects of it.

REED: Do you believe that the investigation that Director Mueller undertook was a witch hunt to illegal as been asserted by the president?

BARR: As I said during my confirmation, it really depends on where you're sitting. If you are somebody who is being falsely accused of something, you would tend to view the investigation as...

REED: Well, you're sitting as the Attorney General of the United States with the constitutional responsibility, so if you could answer in that regard.

BARR: Well, I'm actually characterize (ph) it is what it is, you know, with Mueller and his team conduct an investigation and are issuing a report. I'll use my own adjectives.

REED: You can use your own adjectives and those I don't assume include witch hunt or a -- or illegal. Is that correct? Those would not be in your answer.

BARR: I haven't referred to...

REED: Thank you very much. Thank you, Mr. Chairman.

MORAN: Senator Murkowski.

MURKOWSKI: Thank you, Mr. Chairman. Mr. Attorney General, welcome. I want to start my questions with the issue of marijuana. Senator Gardner has -- has really taken the lead on this issue over here in the Senate. I have been supportive of his efforts. He's trying to move forward with the States Act. I'm co-sponsoring that.

But when we visited and during your confirmation process you explained that you believe that the current conflict between federal and state marijuana laws is untenable was the words that you described. You also explained that you will not upset settled expectation or the reliance interests that have developed because of the policies from the prior administration

KATE BOLDUAN, CNN ANCHOR, "AT THIS HOUR WITH KATE BOLDUAN": Hello, everyone. I'm Kate Bolduan. Thanks so much for joining me.

As you've been watching, some important testimony happening on Capitol Hill right now. Attorney General Bill Barr, back on the Hill and facing questions for a second straight day, with something of a new answer to the same question.

Yesterday, Barr made clear that he intended to release only a redacted version of the report, the Mueller report, to the public and to Congress.

Today, Barr is saying that he's willing to work with Congress to give them more. Just how much more, we do now know. And also, how he reached his conclusion on obstruction when the special counsel pointedly decided not to reach one. He had a very interesting answer on that.

And that is not all. Let me go to Manu Raju. He's on Capitol Hill. He's been watching all of this.

Also important, a conversation back and forth between senators and Bill Barr on the origins of the Russia investigation -- Manu.

MANU RAJU, CNN SENIOR CONGRESSIONAL CORRESPONDENT: Yes. He made very clear that he wants to look into how the Russia investigation began. And he said that he believes spying occurred on a political campaign. He says, "I think spying on a political campaign is a big deal."

Now just moments ago, he was asked by a Democratic senator, Jack Reed, whether or not he had evidence of any wrongdoing.