the presiding officer: are there any senators in the chamber wishing to vote or change their vote? if not, the yeas are 92, the nays are 8. the bill, as amended, is passed. the clerk will report the motion to invoke cloture. the clerk: cloture motion: we, the undersigned senators, in accordance with the provisions of rule 22 of the standing rules of the senate, do hereby move to bring to a close debate on the nomination of william pelham barr of virginia to be united states attorney general, signed by 17 senators. the presiding officer: by unanimous consent, the mandatory quorum call has been waived. the question is, is it the sense of the senate that debate on the nomination of william pelham barr of virginia to be attorney general shall be brought to a close? the yeas and nays are mandatory under the rule. the clerk will call the roll.

vote:

vote:

vote:

the presiding officer: are there any senators in the chamber wishing to vote or change their vote? are there any senators in the chamber wishing to vote or change their vote? if not, the yeas are 55, the nays are 44. the motion is agreed to. the clerk will report the

nomination. the clerk: nomination, department of justice, william pelham barr, of virginia, to be attorney general. mr. graham: madam president. the presiding officer: the senator from south carolina. mr. graham: thank you. well, we're now on the debating of the nomination of mr. barr to be the attorney general. all i can say is that if america ever needed a steady hand at the department of justice, it is now. mr. whitaker's done a good job as interim attorney general, but we're looking for a new person to bring stability, improve morale, and be a steady hand, mature leadership at a time when our country is very much divided. i told president trump, when he mentioned mr. barr to me as a potential nominee to me, i said the other names are impressive, but mr. barr stands out head and

shoulders above the others. if you knew who the others are, that is saying something. the best that mr. barr will do as attorney general in the future is what he has done in the past. he was an attorney general before. he was approved by this body under bush 4 1, attorney general. he was the deputy attorney general. he's been the chief lawyer for the c.i.a., and all of these jobs he was confirmed by the senate by voice vote. in other words, he was so well qualified nobody felt a need to vote. yes, he's a fine man. let's go ahead and confirm him by voice vote. now here we are in 2019, and i can say without any doubt that if you think bill barr has been auditions for this job, you really haven't paid any

attention to how this whole thing came about. once the president mentioned to me that he was considering mr. barr, i asked him, well, does he want the job? he said, he doesn't know, but everybody tells me he could be one of the best picks i could make. i said i agree with what everybody else is telling you. i called mr. barr and said, please consider this. i know it's a good time in your life. your children are grown. you've made it, you have a good job, you have a stellar reputation. having said that, seldom can somebody in their late 60's contribute the most in their life, and i believe this is your time to make the biggest contribution in terms of what you've done for the country that's saying a lot. again, very seldom does this moment come along where you it

make the biggest contribution to your country later in life. so he agreed to take the job. we have cloture by i think 55 votes. he got voted out of committee along party lines, and senator biden told me something that stuck to me this day. i never questioned the motive of the senator. they got here it their way. when it comes to bill barr, i can only tell my democratic colleagues, there is nobody better that i know to recommend to you. this is as good as it gets on our side. i was happy when president trump wanted to nominate mr. barr. i thought of all the people he could have chosen. this was the top by far. and i say that because of the way he'll conducted himself over decades of service at the highest level of government. he's a man of the law. he loves the law.

he's a -- ethics is beyond reproach. when it comes to mr. mueller's investigation, the barres and muellers are friends. it will be a business relationship. i promise you this, mr. barr will make sure that mr. mueller will finish his job without political interference. he said that, i believe that, and that's the way this movie has to end. the memo he wrote about one of the theories of obstruction of justice related to firing of a director comey, i share his legal analysis and concern. if firing somebody that you have the ability to fire for almost any reason could become obstruction of justice, then any time you fire a u.s. attorney or assistant u.s. attorney, you're turning it into a political football. so the statute that he wrote the memo about, his reasoning about how that statute, you should be

reluctant to use this for an obstruction of justice case made perfect sense to me. and when he was asked about -- by the president about obstruction of justice, of course the president could have obstruction of justice. if they tried to hide evidence from the court or congress, that would be obstruction of justice. the question was, could you bring a case based on firing somebody who is a political employee. he had great reservations about that. but he acknowledged the president is not above the law, and to suggest otherwise is really not listening to what he has to say, you wanting an outcome rather than listening to what he had to say. about sharing the mueller report with the country at large, there is a requirement that requires him to report to the house and senate about the report. he has discretion to with hold information that he believes

is -- that should be classified. he has to tell us, the chairman and the ranking member, whether or not he disagreed with mr. mueller's decision in any fashion. in other words, if mueller wanted to bring a charge or make an accusation and barr said no, under the regulation you have to tell us that he actually disagreed with mr. mueller and why. as to how much he will release, we'll know when he gets the report. but here's what i do believe. that he's going to err on the side of transparency. i will not take his discretion away from him. i trust him to make a good decision. him promising to us to release the report before he gets is probably a bridge too far for anybody, to say that i will turn this report over before i even sea it is -- see it is probably not the right answer.

here is what he said that stuck with me. i'm not making bargains with editorial writers, with pundits or elected political leaders that i don't feel are right for the department. i don't want the job that much. i don't need the job in terms of building a career, i've had a great career. i'm doing this because i think i can provide some leadership at a time when we need some. so we'll have a vote here probably tomorrow. he's soon going to be attorney general, and i can tell all of my democratic colleagues, i cannot think of a better person to do this job at this time in our nation's history. i know he will be devoted to following the law as the law is written. i know he'll be fair to the president, but he'll pick the rule of law over anything or anybody, including the senate or

the president and that he will be a shot in the arm for a department who needs a morale lift, that is going to look at the abuses inside of the department, how could a foist warrant -- fisaa warrant be filed, what happened in 2016. he's going to look at that too, i hope. when it comes to mr. mueller, mr. mueller will be allowed to do his job and there will come a day when his report is completed, and i'm confident mre public to the fullest extent possible, and i have ever confidence he will. so to the people who are working at the department of justice, in a day or two you're going to have a new leader. i think you should be excited about the reforms that will be coming. i think you should be excited about working for this good man. he's dedicated his life to your causes, a department of justice that is impartial, that goes

after the bad guys and makes sure that the policies are in place build up the country. i think mr. barr represents that way of doing business in washington that's sort of been lost. he's a handshake, phone call kind of guy. he's been up here for a very, very long time. he's learned a lot of accolades in the legal profession. some of the people who came forward to testify on his behalf definitely have a different legal philosophy and political philosophy than mr. barr, but they all said without hesitation he's one of the finest people they've ever known and would be a great attorney general. so i want to thank president trump for nominating mr. barr. i don't think you could have done a better job in picking someone than mr. barr. i want to let the people at the department of justice know that help is on the way. i want the american people to

understand that this man has a record that should comfort you, that with bill barr you know what you're getting. he served at the highest level of government for decades, former attorney general, deputy attorney general, chief legal counsel to the c.i.a. he has done it all. and he is ready to take over. and he is mature in his judgment. he's calm in his demeanor. he's passionate about the law. he loves the department of justice. to the american people, you can go to bed here soon knowing that the department of justice is in good hands. to my colleagues that vote against him, give him a chance. i think he's going to deliver for the country and to the

committee, thank you for allowing the nomination to go through so quickly. to dianne feinstein, who is a great partner, i appreciate processing the nomination and we may have differences of opinion about what the right answer is, but we could not have asked for a better process. i thought mr. barr was challenged, but respectfully so. so having said that, we're about to confirm a new attorney general at a time when we need one, and this is just not somebody for the job. this is a very special person for the job, and with that, i will yield the floor. the presiding officer: the senator from rhode island. mr. whitehouse: i guess i'm here to follow my friend, senator graham, and bring the opposing view regarding mr. barr. i want to offer my appreciation

to the chairman as he leaves for the way he conducted the hearing. i know that he offered his appreciation to the ranking member, but the hearing, i thought, was well handled, everybody had a chance to ask their questions and say their things, and i think the comments that the chairman made afterwards about trying to bring the committee together were well received on my side. there are a number of problems, however, that i have with this nominee. many of them relate to continuing problems in the department. one in particular i warned mr. barr about in a letter that i sent to him beforehand in order to make sure that he wasn't surprised by the question and that i could get a proper, thoughtful answer, and the problem is that the department for purposes of recusal analysis and for purposes of conflicts analysis takes a look at what

people's different financial entanglements are, who they worked for about before -- for before. it's a fairly standard process. but there's a big gaping hole. and the big gaping hole in the process is that when it was setup originally at the beginning of the obama administration, the supreme court had not yet decided citizens united. so the flood of unlimited specialist money that poured into our politics that became unlimited special interest dark money was not then a problem. also you didn't see a lot of democrats coming to high office that had a lot of engagement with dark money. but with the trump administration, that all changed and we now have an acting attorney general, mr. whitaker, who was paid $1.2 million through a group called fact,

f-a-c-t. basically fact is a front group. it does no business. it has no product. it provides no service. it basically just pays mr. whitaker to go on talk shows and criticize democrat. there are very few employees. the only employee that i'm aware of other than perhaps clerical people was actually whitaker himself. so one would like to know why he was paid that money and who paid him in order to do proper recusal and conflict checks. but here's what's interesting. the money that came in to pay him through fact before it got to fact had been laundered through another group called donors trust. donors trust is another group that does no business, has no

service, create nos product, manufactures -- creates no product, manufactures nothing, its purpose for existence is to strip the identities off of big donors ordinarily it seems big republican special interest donors, so that the money that they then give goes anonymously to groups who can pretend they're not fossil fuel funded because the donor is stripped clean or not a tool of the koch brothers because the koch brothers identity has been stripped clean. it's a device for misleading and confusing people. but when you consider how much of that million dollars went through to mr. whitaker in salary, the idea that he doesn't know who was paying him when so much of fact's money came through that window nation -- that one donation, it's really

improbable. he was questioned on it the other day. i don't think he was truthful. i think he does know. and i hope -- hope that the house will pursue subpoenas finding out who the donor was so that we actually know. because i think he does. and i'm -- obviously the donor knows. so what we have now is a situation which the acting attorney general of the united states has a potentially million dollar conflict of interest that i believe the acting attorney general knows about, that the donor with whom he has a conflict of interest obviously knows about, that's been hidden from the rest of us by laundering it through donors trust and that is not an environment that is conducive to proper recusal and proper conflict of interest assessment. it's very poor practice and if it weren't for the fact that dark money was so important to big republican donor interest, i think people would readily clear this up. if the shoe were on the other foot, my colleagues on the other side would be steam coming out

of their ears to get to the bottom of this. but because what's likely to be revealed is a big republican donor, suddenly there's this massive disinterest. but mr. barr proposed himself as the person who was going to come to this office to defend the department of justice, to put the institutional interest of the department of justice first, to protect it from the vagaries of the trump administration. and yet when he was asked about this, he completely fell down. he offered no sensible or reasonable assurances. so that concerned me a little bit. i then went on to ask him since the department of justice has a national security division which oversees counterintelligence work and since the department of justice contains the f.b.i. which does the counterintelligence investigations that protect our country, i asked him in a

counterintelligence investigation in operating to protect our country and its counterintelligence function, what should the department of justice know about business or other entanglements of senior officials with foreign interests and powers. the very heart of counterintelligence is to look at american officials and see what their vulnerabilities might be to influence or control or manipulation by foreign interests and powers. that's the goal of doing counterintelligence in the first place. so what evidence do you need to be able to do that? it obviously would be helpful to know what business or other interests with foreign powers senior officials have so that you can make that assessment, so

you can follow whatever leads that might produce that may give you understanding of things that otherwise seem inexplicable. it is obvious evidence to support the f.b.i.'s counterintelligence function. but rather than give a straight answer that said yeah, this is obvious evidence and obviously we'll do our counterintelligence function better if we know when senior officials have foreign business entanglements, again he completely fell down in his answer and started quarreling about what senators have to declare and wouldn't give a straight answer. or there's an obvious reason he wouldn't give a straight answer. the observe reason he would not give a straight answer is the president who appointed him has significant, although we don't understand them well yet, significant business entanglements that we don't know about. and we need to find out what his

business entanglements are. and it's really hard to assess some of his behavior without knowing who's on the other side of his foreign business relationships and how much money is involved and how much is at risk for him. that's pretty elementary stuff. and if you're the person who is selling yourself as the attorney general who's going to come in and be the institutionalist and defend the prerogatives of the department and defend the procedures and protocols of the department against a president who respects none of that and who has those very entanglements, to then come in and say, you know what? no, i'm not going to be interested in any of that. i'm going instead ask counterquestions back to you about other different officials. the inability to give a straight answer to that question signals a great deal to me about when in a pinch he has to choose between defending the department and protecting the political interests of the president, which way he's going to go.

because i gave him that choice in that question. i gave him that choice in that question. he very clearly came down on the side of protecting the political interest of the president. if you can't get through a hearing question without flipping away from the interest of the department and protecting the president, good luck when the pressure is really on. so he lost enormous credibility with him in his inability to answer no es questions. -- answer those questions. it is really hard to determine recusals or conflict of interest if you don't know who paid a million dollars to a senior department official. and it is really hard to determine counterintelligence issues if you don't know what foreign entanglements senior officials have. and those are statements that i would hope would be so obvious as to be indisputable.

and yet this candidate foundered on both of them. the other issue is the question of executive power. again, you would think that the senate would be interested in standing up for its prerogatives as a legislative body since we are a legislative body. and we have a very long and proud tradition. from that perspective as a senator, as a legislator, i look ahead and i see constitutional battles. there are a lot of constitutional battles that i see coming. the first is going to be if the president when he gets or after he gets the budget measure that we've agreed to here, hope we've agreed to here, i think it's done, if he decides he's going to declare a national emergency and start moving money around between accounts to build to his, as i refer to it

affectionately big dumb wall, well, that's a constitutional problem because article 1 of the constitution says it's the legislature that has the power to appropriate and spend funds. so if the president is going to use his own unilateral declaration of a national emergency to say to congress sorry, your power of the purse is not actually all that real. it's just a power of device to me. as soon as i declare a national emergency, i can spend the money i want, that is a violation of powers. that's a constitutional battle and one can see it coming. executive privilege is a constant constitutional battle between congress and the executive branch. congress wants information. congress seeks information. congress needs information to perform its constitutional oversight function. but certain narrow communications within the executive branch are protected from congress' right to do that

in order to protect certain conversations and freedoms directly around the president of the united states as he has conversations. that's the general understanding of how executive privilege works. well, this administration has a very different understanding of how executive privilege works. they think that you get to come into a senate hearing and not answer a question because some day maybe somebody else might assert executive privilege as to what you've -- as to what you have said but there is no dead lynn ever, there is no check ever, there is no day of reckoning ever. they just assert it and because we have nonenforced our powers here, they've gotten away with it. so executive privilege has grown into a swamp of executive obstruction of congressional oversight. we got to bring executive privilege back to its true base and its true roots. and as we try to do that, guess

what? that's going to be another battle between the legislative and executive branches, another constitutional battle. the question of whether or not the president can be indicted by a grand jury is another constitutional battle we have coming very likely. we'll have to see what the special counsel and the other department of justice investigations into this president ndz the other people -- and the other people around him reveal but they could reveal sufficient evidence to suggest an indictment of anyone else who is not the president. within the department of justice, there's a group called the office of legal counsel which is kind of the legal advisor to the department of justice. and the office of legal counsel has decided that a departmen def justice cannot indict a sitting president. now, here's the problem with that. the office of legal counsel

isn't elected by anybody. they're career people. they tend to be hyper smart but their purpose in life in opining on the separation of powers questions is to describe the maximum possible credible scope of executive power. they represent the executive branch and when they're making these separation of powers decisions, they always veer to the maximum greatest executive power that they can justify. that does not mean that a court would agree with them. that does not mean that a court would agree with them. and ever since marbury versus madison, it has been the constitutional power of the courts, particularly the supreme court, to say what the law is. and the question of whether a president can be indicted or not

is a question of what the law is regarding the indictment of a president. so that question ought to be decided in a court. but if the office of legal counsel is never going to let a case go forward, then how is the department of going to get that opinion that it has tested in court to get a real answer under the constitutional system? well, they probably won't. it's going to be difficult. we're going to have to try to find a way if they do assert that to get that proposition tested in a court instead of relying on the opinion of a group of lawyers within an executive branch agency as to the relative powers of the courts and the executive branch. the question of interference with these investigations by the president and the independence of those investigations also

raises a variety of constitutional questions. and i have to say the top line of mr. barr on all of these issues was fantastic. i was kind of mentally cheering when he said some of the things that he said about how he was going to keep his hands off, how he respected mueller, how this was no witch hunt, how he was going to make sure it had its full scope, how he was going to try to get the maximum transparency about the final report that he could. all of which was fine, and then we went into the -- into the weeds a little bit. as the old saying goes, the devil is in the details. the question was serious enough that i raised it in the committee after the hearing because i was unsatisfied with his responses, and the chairman was kind enough to acknowledge those were pretty darned good

questions and he would try to get an answer to them. he said maybe we could even get on the phone together with barr to get those answers. that did not come to pass, so instead i wrote a letter to mr. barr, asking him to clarify his answers. and i got back a letter that provided no clarification at all. so i have given him quite a few chances to try to answer these questions, and i haven't gotten a straight answer back, which makes me a little bit worried. here is the problem. there are actually two problems. at the end of the day, whenever the mueller report is concluded, that report can be provided to congress, but there is considerable flexibility and considerable discretion within the department of -- within the department of justice and the attorney general's office as to how much to give. and i will interrupt because i see the distinguished majority leader here. do you need the floor, mr. majority leader?

not yet. when it comes, i will yield again. the -- the decision as to whether or not to disclose elements of the report will be based on -- now the majority leader is standing, and he has materials in front of him, so i will yield the floor to the distinguished majority leader. mr. mcconnell: i will be brief. i ask unanimous consent the senate be in a period of morning business with senators permitted to speak therein for up to ten minutes each. the presiding officer: without objection. mr. mcconnell: i ask unanimous consent the senate proceed to the immediate consideration of s. 461. the presiding officer: the clerk will report. the clerk: s. 461, a bill to strengthen the capacity and competitiveness of historically black colleges and universities through robust public sector,

private sector, and community partnerships and engagement, and for other purposes. the presiding officer: is there objection to proceeding to the measure? without objection, the senate will proceed. mr. mcconnell: i ask unanimous consent the bill be considered read a third time. the presiding officer: without objection. mr. mcconnell: i know of no further debate on the bill. the presiding officer: is there further debate? if not, the question is on passage of the bill. all in favor say aye. those opposed, no. the ayes appear to have it. the ayes do have it. the bill is passed. mr. mcconnell: i ask unanimous consent the motion to reconsider be considered made and laid upon the table. the presiding officer: without objection. mr. mcconnell: i ask unanimous consent that the committee on judiciary be discharged from further consideration of s. res. 36 and the senate proceed to its immediate consideration. the presiding officer: the clerk will report. the clerk: senate resolution 36,

supporting the observation of national trafficking and modern slavery prevention month, and so forth. the presiding officer: is there objection to proceeding to the measure? without objection. the committee is discharged. and the senate will proceed to the measure. mr. mcconnell: i further ask the resolution be agreed to, the preamble be agreed to, and the motion to reconsider be considered made and laid upon the table with no intervening action or debate. the presiding officer: without objection. mr. mcconnell: i understand there is a bill at the desk. i ask for its first reading. the presiding officer: the clerk will read the title of the bill for the first time. the clerk: s. 464, a bill to require the treatment of a lapse in appropriations as a mitigating condition when assessing financial considerations for security clearances, and for other purposes. mr. mcconnell: i now ask for a second reading and in order to place the bill on the calendar under the provision of rule 14, i object to my own request. the presiding officer: objection having been heard, the bill will receive its second reading on

the next legislative day. mr. mcconnell: now, madam president, i ask unanimous consent that when the senate completes its business today, it adjourn until 10:00 a.m. wednesday, february 13. further, that following the prayer and pledge, the morning business be deemed expired, the journal of proceedings be approved to date, the time for the two leaders be reserved for their use later in the day, and morning business be closed. further, following leader remarks, the senate proceed to executive session and resume consideration of the barr nomination. finally, that all time during recess and adjournment, morning business and leader remarks count postcloture on the barr nomination. the presiding officer: without objection. mr. mcconnell: so if there is no further business to come before the senate, i ask that it stand adjourned under the previous order following the remarks of senator whitehouse. the presiding officer: without objection. mr. whitehouse: thank you, leader. madam president, as i was wrapping up, i was pointing out that at some point there is likely to be a report that comes out of the special counsel

investigation, and there will be some material in that report that is properly stripped out of it before it's provided to the public. the two things that i concede are proper to strip out of it are classified national security information that could reveal sources and methods of our intelligence operations, and the second is private and personal information, particularly related to witnesses that is not necessary to the public understanding of the report. people's phone numbers or e-mail addresses or other private information. those are very clearly appropriate to redact from the report. but there are two other ways in which the department of justice could go into the mueller report and just gouge great tranches of

material out. one would be if an assertion by the president was made of executive privilege, and if without any contest or without any formative review or court review, the attorney general simply agreed with the assertion of executive privilege by the president. we have seen these extreme, almost wild, unlimited assertions of executive privilege by the members of the trump administration. there has never been any discipline or proper process about it. there has never been any enforcement. so it is a wide-open field for mischief if the president decides that big chunks of the mueller report shouldn't be disclosed to the public because he asserts executive privilege and then attorney general barr says good enough for me, i'm not going to let any of that go to the public or to congress. that, to me, is a problem, and

that door is wide open, and it's a reason that i have for my opposition to this particular nominee. the other is related. there is a long-standing tradition at the department of justice that when you're undertaking a criminal investigation and you develop in the course of that investigation derogatory information about people, particularly about uncharged people, you don't get to just spill that out into the public record. the bad deed that was done by jim comey was to violate that department rule and disclose derogatory investigative information about an uncharged person, specifically mrs. clinton. and that violated long-standing procedures and principles of the department and kicked up a lot

of criticism, including by me, right at the time and since, and also by attorney general barr. and he stands, i think, in the best traditions of the department to condemn the release of derogatory investigative information about an uncharged person. the rule of the prosecutor is if you're going to say it, say it in your pleadings. charge the guy. put it in the indictment. put it in the criminal information. then the defense can fairly react. then you are accountable to the court for what you are saying, and then there is some discipline to it. but you don't get to describe unrelated or uncharged conduct that just happens to be derogatory. so -- and that actually continues on through the whole criminal case. you're not supposed to do it at any point. if you have got something to say

about the evidence in the case, you plead it in a pleading before the court, and otherwise you keep your mouth shut and you stand on your pleadings. the problem comes when that rule gets applied in this case. and here is the circumstance. the mueller report comes down. it's full of investigation -- of information, of derogatory information about the president and the people around him. but because the office of legal counsel, as i described earlier, has decided that you can't charge a sitting president with a crime, now that president is an uncharged person. not because there wasn't an indictment to be brought against him, not because he didn't engage in criminal conduct, not because the government wouldn't ordinarily prosecute that case

to the full extent of the law, but simply because of this little policy at the office of legal counsel that you -- that you can't indict a sitting president, one that has never been tested in court and one that i think fares badly in court if you look at the precedents of nixon and clinton and others. so now with the president as an uncharged person, do you then call in this doctrine and say hey, all derogatory investigative information about this uncharged person is now no longer amenable to disclosure to congress or the public. that ought to be -- it's a complicated situation, but it's easy to get there, and once you are there, the answer ought to be, well, obviously, no, but i couldn't get that answer. i couldn't get a straight answer. so over and over and over again, despite the terrific top-line

assertions that mr. barr made, when you drill down into the weeds, you couldn't get a straight answer, and when you tried, very often it was an easy answer to make, and you couldn't get that easy, straight answer, and in those cases, it was a choice between the policies and the protocols and the propriety of the department of justice versus the political interests of the president. so if i can't get a good answer in a simple hearing question that properly puts the weight where it belongs to support the protocols and the procedures and the propriety of the department of justice, then when it's not so public and when the pressure is really on and when hard decisions have to be made, it's impossible for me to believe that he won't lean towards yielding to the president rather than defending and honoring the department. that, for me, is enough reason to oppose this nomination. and with that, i yield the

floor. the presiding officer: under the previous order, the senate stands adjourned until 10:00 a.m. tomorrow morning.