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Former DOJ Employee Weighs In On William Barr's Confirmation Hearing

MARY LOUISE KELLY, HOST:

For analysis of the hearing and of what Bill Barr may do if he's confirmed, let's bring in Jennifer Daskal. She's an associate professor of law at American University. She used to work at the Justice Department. Professor Daskal, welcome.

JENNIFER DASKAL: Thank you.

KELLY: So to this central question today, which is whether Barr will protect the Mueller investigation, based on what you heard from his testimony, are you persuaded that he will?

DASKAL: So he - he answered that pretty clearly. He said that he - he likely - I mean, he - he said he would protect Mueller and that - absent something extraordinary, that Mueller would be allowed to continue.

I think the key question and the one that several senators pushed on is the question of, what is going to ultimately be made public and what's going to be made available to Congress?

We heard Bill Barr say repeatedly that he was committed to transparency, but transparency consistent with the law, transparency consistent with rules and regulations. And Barr has a very broad view of executive privilege and a very broad view of executive power, including power over criminal investigations.

KELLY: So when he says he needs to be consistent with rules and regulations on the question of whether whatever final report Mueller produces should be made public, that's what he would be referring to - executive privilege - that the president might say no.

DASKAL: Exactly. Executive privilege or broad claims of national security or a range of different reasons why transparency would be limited, according to his - his views and the president's articulation of what's necessary to keep private, secret.

KELLY: He also, as we just heard there from Carrie Johnson, did not seem to suggest that he's likely to recuse himself from overseeing the Mueller investigation. Did that surprise you in any way?

DASKAL: It surprises me only because it seems like a clear case where recusal would be appropriate. But he has been consistent all along in suggesting that he would not recuse himself. And so I wasn't surprised that he didn't change his mind today.

But given his engagement, given the memo that was - that he chose to write and to send to the president about concerns about obstruction of justice charges targeting the president and given what he acknowledged today about conversations, it seems like this would be a clear case for recusal. But he has been consistent about that.

KELLY: Well, that prompts my next question, and it's one that he was asked today by senators and - in one way or the other, a number of times, which is would he protect the independence of the Justice Department against executive overreach? You know, do you think, when push comes to shove, Bill Barr would tell the president no? No, sir. You can't do that.

DASKAL: So again, I think it depends what's being asked. And he did suggest today that there were certain red lines that he wouldn't cross. But that being said, he has expressed repeatedly, previously, very broad views of executive power and executive privilege. And there are certainly, in a whole range of areas in which the president could assert executive privilege - and my assumption is - and based on Barr's previous writings and statements, that Barr would agree.

KELLY: Did you learn anything about Bill Barr today that you didn't already know?

DASKAL: Some of the contacts that he's had were interesting to hear about. You know, he is - as expected, he was incredibly articulate and - and respectful. I think that the key is - is reading the testimony in light of what he's said and written in the past.

KELLY: Did you hear anything today that might derail this confirmation, that poses a serious threat to his chances of being confirmed?

DASKAL: Just given - given the politics and given the makeup of the Senate, unlikely at this point.

KELLY: Is there a question you - you would have asked him that the senators did not?

DASKAL: Again, I think that really pushing him on this question of transparency, what happens when the president asserts a claim of national security, what happens when the president says, you know, we just want a very brief, cursory summary of this report sent up to Congress, what do you do then?

KELLY: You would have liked to have heard an ironclad, whatever Mueller wants to be made public, I'll back him back.

DASKAL: Exactly.

KELLY: That's Jennifer Daskal. She teaches constitutional and national security law at American University. Jennifer Daskal, thanks so much for taking the time.

DASKAL: Thank you. Transcript provided by NPR, Copyright NPR.


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