January 14, 2019

Whitehouse Releases Key Lines of Questioning for Barr

Senator’s hand-delivered letter calls on AG nominee to prepare for questions on Nixon-era Mueller protection agreement, political interference, and dark money

Washington, DC – Senator Sheldon Whitehouse (D-RI), a member of the Senate Judiciary Committee, released today a letter he hand-delivered to attorney general nominee William Barr at their meeting Thursday, which contains detailed questions he may pose during Barr’s nomination hearing tomorrow.  Whitehouse’s lines of questioning cover (1) Barr’s contacts with the Trump administration about Special Counsel Robert Mueller’s investigation; (2) whether Barr would be prepared to enter an agreement to safeguard Mueller, like the delegation agreement forged to protect Nixon-era Special Prosecutor Leon Jaworski; (3) observing long-standing rules and norms protecting law enforcement efforts from political interference; and (4) the inadequacy of Justice Department ethics rules in guarding against conflicts of interest arising from dark money, like the conflicts swirling around Acting Attorney General Matthew Whitaker.  Whitehouse writes that he expects Barr to be prepared to cover the topics in detail at Tuesday’s hearing.

Full text of the senator’s letter is below.  A PDF copy is available here.

January 10, 2019

Mr. William P. Barr
Of Counsel
Kirkland & Ellis LLP
655 Fifteenth Street, NW
Washington, D.C. 20005


Dear Mr. Barr:

In advance of the hearing next week on your nomination to be Attorney General of the United States, I write to notify you of several lines of questioning which I expect, given this advance notice, you will be prepared to answer:

Pre-nomination Contacts with the Trump Administration about the Special Counsel Investigation

1. Did you have any communications prior to your nomination about Special Counsel Robert Mueller’s investigation with any person who holds or has held a position in the Trump White House? With whom? When? Who said what?

2. Did you have any communications prior to your nomination about Special Counsel Robert Mueller’s investigation with any person who holds or has held a position in the Department of Justice? With whom? When? Who said what?

3. On June 8, 2018, you sent a memorandum to Deputy Attorney General Rod Rosenstein and Assistant Attorney General Steve Engel titled “Mueller’s ‘Obstruction’ Theory,” in which you wrote that Special Counsel Mueller’s “obstruction theory is fatally misconceived.” You also stated your memo was unsolicited.

a. Why did you submit an unsolicited memo about a pending investigation to the Department of Justice?

b. Did you have any communications related to the memo before June 8 with any person at the Trump White House, President Trump’s legal team, the Department of Justice, or Republican House committee members or staff?

c. Did you have any communications related to the memo after June 8 with any person at the Trump White House, President Trump’s legal team, the Department of Justice, or Republican House committee members or staff?

d. Did you discuss the memo before June 8 with any person currently or formerly associated with the Federalist Society?

e. Did you discuss the memo before June 8 with any other person?

f. Did you share any draft of your memo with any person prior to sending it to the Department of Justice?

g. Your memo contains many legal citations. Did you receive assistance from anyone in writing or researching your memo?

h. Who paid you for the time it took you to write and research this memo?

i. How was the memo transmitted to the Department of Justice? Were there emails or other cover documents associated with its transmission? If so, will you commit to producing them to the Committee?

j. Discussing your memo, Rod Rosenstein was quoted in a December 20, 2018, Politico article as saying: “I didn’t share any confidential information with Mr. Barr. He never requested that we provide any non-public information to him, and that memo had no impact on our investigation.” Did you request that DOJ provide you any information to you about the Mueller investigation? If so, what did you request, from whom did you request it, and what was provided?

Protecting the Independence of the Special Counsel Investigation

In October 1973, during the Watergate scandal, President Nixon ordered the firing of independent special prosecutor Archibald Cox, who was investigating Nixon’s role in the scandal.  Attorney General Elliot Richardson and Deputy Attorney General William Ruckleshaus refused to fire Cox and resigned in protest, but the next in command, Solicitor General Robert Bork, was willing to carry out the firing.  In the aftermath of what became known as the Saturday Night Massacre, Acting Attorney General Bork agreed to enter into a written delegation agreement to ensure the independence of Cox’s successor, Leon Jaworski.  The agreement stated, among other things:

1. “[T]he Special Prosecutor will not be removed from his duties except for extraordinary improprieties on his part ….”

2. “The Special Prosecutor shall have full authority … for … initiating and conducting prosecutions, framing indictments, filing informations, and handling all aspects of any cases within his jurisdiction … including any appeals …. In exercising this authority, the Special Prosecutor will have the greatest degree of independence that is consistent with the Attorney General’s statutory accountability falling within the jurisdiction of the Department of Justice …. The Attorney General will not countermand or interfere with the Special Prosecutor’s decisions or actions.”

3. “The Special Prosecutor will be provided with such funds and facilities to carry out his responsibilities as he may reasonably require.”

4. “The Special Prosecutor may from time to time make public such statements or reports as he deems appropriate and shall upon completion of his assignment submit a final report to the appropriate persons or entities of the Congress.”

The Bork Order is available at 38 Fed. Reg. 30738, Order 551-73 (Nov. 7, 1973), and is attached for your reference.  While Special Counsel Mueller was appointed under different legal authority than Mr. Jaworski, these provisions in the Bork Order are not inconsistent with current DOJ regulations and could be adopted to supplement those requirements.  Your agreement to follow in the footsteps of Robert Bork would provide significant assurances to those who fear your appointment is a prelude to another Saturday Night Massacre.  I request that you review the Bork Order in its entirety so that we may have a discussion about whether you have any objection to adopting the terms I mentioned above for the Special Counsel investigation.  

Commitments Concerning DOJ Independence and Communications with the White House

As you know, there is a long history of protecting law enforcement efforts from both political interference and the appearance thereof.  For most of the last several decades, clear written policies governing—and limiting—contacts between agencies with law enforcement functions and the White House have played an important role in preserving the integrity of law enforcement efforts.  Following precedent set by the Clinton administration in cooperation with Senate Judiciary Chairman Hatch, Attorney General Holder established communications protocols that, I have been advised by DOJ, remain in effect today.  On January 27, 2017, White House Counsel Don McGahn issued a memorandum establishing the Trump Administration’s guidelines for communications between the White House (including all components of the Executive Office of the President) and the Department of Justice.  I am attaching copies of both of those policies here.  I request that you review them before your hearing so you are able to commit to following them if confirmed.

DOJ Ethics and Dark Money

On December 4, 2018, I joined several of my Judiciary Committee colleagues in sending a letter to DOJ ethics officials requesting information on whether their review of Acting Attorney General Whitaker’s potential conflicts of interest would include real parties behind the funding of his prior employer, the Foundation for Accountability and Civic Trust (FACT).  Since 2015, Mr. Whitaker has received more than $1.2 million in compensation from FACT, a 501(c)(3) organization promoting “accountability” from public officials.  Between 2014 and 2016, FACT received virtually all of its funding—approximately $2.45 million—from a donor-advised fund called DonorsTrust.  DonorsTrust has been described as “the dark-money ATM for the right,” which “allows wealthy contributors who want to donate millions to the most important causes on the right to do so anonymously, essentially scrubbing the identity of those underwriting conservative and libertarian organizations.”  During and after his tenure at FACT, the organization has filed at least fourteen complaints and requests for investigations with the Department of Justice, the Internal Revenue Service, and the Federal Election Commission against Secretary of State Hillary Clinton, various Democratic members of Congress, Democratic Party leaders, and Democratic candidates.

It seems self-evident that in order to fully assess Mr. Whitaker’s conflicts of interest, DOJ needs to know the identities of donors that funded FACT’s partisan activities and Whitaker’s salary through DonorsTrust.  Unfortunately, we have not yet received a response to our letter, which I attach here for your review.  I am not interested in your views on Mr. Whitaker specifically, but I would like you to be prepared to discuss how DOJ recusal and conflict of interest policies can be effective if nominees like you, or appointees like Mr. Whitaker, fail to disclose anonymous funding or payments they have received, or political contributions or solicitations they have made, as part of their financial disclosures in the ethics review process.  I will also ask you to disclose in the course of your DOJ ethics review any such undisclosed or anonymous payments or contributions you have received. 



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