Senate Democrats missed the point with their questions for William Barr

High profile hearings in Congress often look like a casting call for actors reading a low budget slasher film script. The key is that look of shock and disgust regardless of what the witness answers. The standout performer is Senator Cory Booker, who has mastered that “I Know What You Did Last Summer” look, even when asking the most mundane or mixed questions. He knows that, in this genre, the script is less important than the optics.

Indeed, the hearing with Attorney General William Barr this week seemed, at times, to involve two scripts for two different movies, with Barr reading from the 2000s “Drag Me To Hell” while Senate Democrats read from the 1970s “I Spit On Your Grave.” Senator Mazie Hirono did not even stop to listen for his responses before denouncing his failure to answer questions.

Some new information was shared, such as the fact that special counsel Robert Mueller slowed the release of his report by ignoring requests from Barr and Deputy Attorney General Rod Rosenstein to identify grand jury information in advance. There was also Barr stating he and Rosenstein asked Mueller to reach a conclusion on all crimes. Barr effectively shifted the burden over to Mueller on such questions. Claims by House Speaker Nancy Pelosi that Barr lied under oath are simply unfounded and unfair.

{mosads}Yet, Barr stumbled to answer when Senator Kamala Harris asked, “Has the president or anyone at the White House ever asked or suggested you open an investigation of anyone?” Barr got caught up with the meaning of “suggest” then categorically denied that anyone had asked he open any investigation but said, “I’m trying to grapple with the word ‘suggest.’ I mean, there have been discussions of matters out there.” Just like the seasoned former prosecutor she is, Harris pounced on his answer and suggested that someone might have “hinted” or “inferred.”

This is why both compound and vague questions are generally barred in actual cross examination. Barr looked evasive and uncomfortable, even though he explained that his concern was that conversations clearly did cover possible investigations but he was never asked to open one. The distinction makes for bad television but is a legally important point here.

President Trump has repeatedly crossed the traditional line of separation between the White House and the FBI, with his probing of officials like former FBI Director James Comey on the status or direction of the Russia investigation. While I have been critical of Comey, he was absolutely right in his objections to the inquiries from Trump. Past presidents generally avoided meeting alone with FBI directors, much less recklessly pressing them on investigations that touched on political or personal interests.

A demand from the White House for an investigation can raise serious questions of political influence over prosecutorial decisions. However, the line can be blurry. Presidents often call for investigations on issues of national importance. After a police shooting in Ferguson, Missouri, for example, President Obama held a press conference in which he was heralded for announcing that he had ordered the Justice Department and the FBI to both “independently investigate the death of Michael Brown.”

The Justice Department is part of the executive branch, and there is often discussion of the priorities and controversies involved in its investigations. For that very reason, Democrats were not aghast when former Attorney General Eric Holder publicly proclaimed he was a “wingman” for Obama. Likewise, Democrats applauded Obama when he ordered the Justice Department not to prosecute certain immigration cases. The line that cannot be crossed is the direction or influence of such an investigation.

Anyone can ask the Justice Department to look into allegations of criminal conduct. The Justice Department then makes an independent decision on whether to investigate. This includes members of Congress, who often call upon the Justice Department to investigate individuals despite their interests. Indeed, Harris has repeatedly done so, including calling for the Justice Department inspector general to investigate Barr. There is nothing improper in such a request, even if it has more political than legal merit.

Take the latest request from Senate Democrats for an investigation into Barr and Rosenstein reaching a conclusion on the obstruction evidence after Mueller had refused to do so. They wrote in a letter to the Justice Department inspector general, “It is unclear what statute, regulation, or policy led the attorney general to interject his own conclusion” that the conduct of the president did not amount to obstruction of justice here.

It is a bizarre question since the United States Code says, “All functions of other officers of the Department of Justice and all functions of agencies and employees of the Department of Justice are vested in the attorney general,” with a couple narrow exceptions dealing with administrative judges and prisons. The Justice Department makes the prosecutorial decisions, and the ultimate decision maker here is the attorney general.

What makes the request even more curious is the omission of the more obvious question. Why did Mueller not reach a decision? As I wrote on the day that Barr released his summary of the Mueller report to Congress, it is perfectly incomprehensible that Mueller did not reach a conclusion. After reading his report, his reasons for refusing are even more inscrutable.

The special counsel is mandated to “provide the attorney general with a confidential report explaining the prosecution or declination decisions reached by the special counsel.” While the report references the Justice Department policy not to indict a sitting president, nothing suggests that a special counsel cannot reach a conclusion on the evidence of criminal conduct by a president. If there was any doubt on Justice Department policy, it should have been clarified when Barr and Rosenstein, who oversee Mueller, pressed him to reach a conclusion. Barr still cannot explain the rationale for a special counsel not reaching a conclusion.

He is not alone. Democrats have also called for an investigation of what they view as a “lack of impartiality” under the attorney general. Harris expressed surprise that Barr did not personally review the underlying evidence, consisting of millions of documents and records, collected by Mueller before reaching his conclusion on obstruction. What she ignored is that such an independent review would have negated the work by Mueller. As Barr correctly stated, “We accepted the statements in the report as factual record. We did not go underneath it to see whether or not they were accurate.” Democrats presumably would want him to do that instead of substitute his own facts for those of the special counsel.

Harris was not wrong in pressing Barr on any White House pressure to open investigations. However, there is nothing improper with the White House raising priorities and controversies with the attorney general. What raises serious ethical concerns is when those cases directly impact a president or his campaign. An attorney general should push back on anything he or she views as efforts to influence prosecutorial decisions.

Of course, every good slasher film has a sequel, and there are several in the works in this case with the calls for Mueller, Rosenstein, and former White House counsel Don McGahn to testify. Congress has every right to call on these officials, and the suggestion from Trump that he will block McGahn would be entirely unjustified. But if Congress truly wants answers and not just optics, it might try keeping the jump scares to a minimum.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.