Too often in today’s United States Senate, style has become a sad substitute for substance, rhetorical expressions of “concern” a stand-in for real action. That’s not the kind of Senate my friend and former boss John McCain revered. He believed that United States senators were elected to six-year terms to do the right thing, regardless of consequences — not to say one thing and do another. Nowhere must that be more true than when it comes to issues fundamental to the rule of law.
As a former attorney general for the state of Arizona, I know how vital it is for law enforcement officials — from state attorneys general to prosecutors to the U.S. attorney general — to preserve the rule of law. That’s why the confirmation hearings for William Barr, President Donald Trump’s nominee for attorney general, are the most consequential since 1973.
To avoid a constitutional crisis and to protect the rule of law, the next attorney general must protect special counsel Robert Mueller’s ability to follow the facts, find the truth and make a public report to the American taxpayer. The Senate Judiciary Committee’s job is to ensure that Barr makes those commitments. If he doesn’t, it should reject his nomination. Make no mistake: The Senate, not just the nominee, is being judged this week.
These aren’t just words. They’re grounded in real history. It matters what the Senate does. President Trump dismissed his previous attorney general because he refused to shut down Mueller’s investigation. The new nominee has criticized the investigation. It falls to Chairman Lindsey Graham and his colleagues to defend the American ideal that no one is above the law, not even the president. It’s up to them to ensure that Mueller will be allowed to act independently, especially with the expected departure soon of Rod Rosenstein, the deputy attorney general who may well have kept the investigation afloat despite Trump’s tantrums.
That’s why Barr’s hearing echoes that of President Richard Nixon’s attorney general nominee, Elliot Richardson. During Richardson’s confirmation hearings, senators required specific public commitments to protect the independence of the special prosecutor. Those commitments proved to be some of the most consequential developments of the Nixon administration — Richardson felt compelled to resign five months later rather than carry out Nixon’s orders to fire the special prosecutor.
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In his resignation letter to Nixon, Richardson wrote: “At many points throughout the nomination hearings, I reaffirmed my intention to assure the independence of the special prosecutor. … I trust that you understand that I could not in the light of these firm and repeated commitments carry out your direction that this be done.” It matters what senators do and what they demand, much more so than what they tweet and what they whisper to reporters in the basement of the Capitol.
There might be no one in the history of the Senate who understood how to wield the immense power of the Senate’s advise-and-consent role better than Sen. McCain. He would send back nominations for people who were “totally unqualified” (in his words) or unresponsive to the Senate. He skewered nominees who would not give him straight answers and demanded accountability on behalf of his colleagues. As chairman of the Senate Armed Services Committee, he even stopped holding confirmation hearings on President Trump’s nominees until the Pentagon briefed the Senate on Iraq and Afghanistan — and later on Niger.
McCain explained, “The Constitution says that the Senate has the obligation to advise and consent. I am in keeping with the Constitution of the United States. When I got re-elected, I said I would support and defend the Constitution, I didn’t say I would support and defend the president of the United States.”
Graham has pledged to protect Mueller
This is exactly how the Senate is supposed to work — and I hope senators treat Mr. Barr’s confirmation with the same urgency. A coequal branch of government should demand no less.
Last March, Chairman Graham said, “I pledge to the American people, as a Republican, to make sure that Mr. Mueller can continue to do his job without any interference.” Graham and his fellow senators should solicit from Barr a commitment to allow the special counsel to complete the investigation without any interference, to releasing the special counsel’s findings to Congress and the American people without President Trump withholding any evidence, and to enforce long-standing Justice Department policies that protect federal law enforcement decisions from improper White House interference.
Without these public commitments from Mr. Barr, senators should vote against confirming him as attorney general. It’s time to put country ahead of party, and history is counting on nothing less.
Grant Woods was Arizona’s attorney general from 1991 to 1999 and served as the late Sen. John McCain’s chief of staff when McCain was a House member in the 1980s. Follow him on Twitter: @GrantWoods