Quinta Jurecic and Benjamin Wittes: The real significance of the FBI’s probe into Trump

In a normal administration, confirmation of Cabinet members would be a question of qualifications, temperament, and policy views. But with Trump, who has already been implicated in felonies by his former attorney, and who has sought on multiple occasions to stymie criminal investigations into his campaign and his associates, and who has flagrantly abused the powers of his office for personal and political gain, the main question of significance is whether a nominee would resist an order from the president to violate the law or the Constitution. That question takes on particular importance for a prospective attorney general, not only because it would be his responsibility to ensure equality under the law, but also because Trump views the office as key to protecting himself and his cohorts from legal consequences.

Here, Barr’s record and testimony are less reassuring than they might at first appear. There’s the 19-page memo describing the special-counsel inquiry as “fatally misconceived” that Barr wrote last June and personally sent to Trump’s attorneys. There’s the fact that Barr refused to commit to recusing himself from the Russia investigation if directed to do so by Justice Department ethics officials, as Sessions did once his misleading testimony to the Senate was exposed. This is no small question—Whitaker similarly refused to recuse himself after being advised to do so because of his prior attacks on the Mueller investigation, raising questions about whether his appointment was intended to provide the president and his defense attorneys with a window into Mueller’s work. But Whitaker’s ability to hamper the special-counsel inquiry was limited by his obvious lack of qualifications for the job, media scrutiny of his past, and the widespread perception that he was little more than a cat’s paw for the president.

There are fewer questions about Barr’s qualifications. After all, he used to be attorney general. Unlike Whitaker, he is well regarded as a civil servant by the bipartisan community of Justice Department alumni. And unlike Sessions, he was no Trump-campaign surrogate, and his hearing displayed none of the performative sycophancy that Trump demands from his advisers.

Benjamin Wittes: As good an attorney general as we’re likely to get

That should be reassuring. But it also means that, should Barr decide to interfere with or otherwise hamper the investigations into the president, or order inquiries into the president’s political enemies, he will have far more legitimacy to do so. Barr told The New York Times in 2017 that the Justice Department could be “abdicating its responsibility” by not pursuing further investigations into Trump’s 2016 rival, Hillary Clinton, whom Trump publicly threatened to imprison. Elaborate conspiracy theories about Clintonian crimes remain a staple of Fox News programming, but there’s little evidence of any wrongdoing.