SARAH MCCAMMON, HOST:
The Senate Judiciary Committee, meanwhile, opens hearings Tuesday on President Trump's nomination of William Barr as attorney general. Democrats want Barr to commit to protecting special counsel Robert Mueller's Russia investigation. Lawyer Harry Litman has some reassuring words for them. He worked in the Justice Department when Barr first served as attorney general in the early '90s. I asked Litman why he wrote a Washington Post op-ed under the headline, "Count Me As One Democrat Who Thinks Trump Made An Excellent Choice In William Barr."
HARRY LITMAN: Well, first of all, I think he is a huge step up from the current unstable and, I would say, dangerous situation of having the acting attorney general, Matt Whitaker, who is both not very qualified and, more importantly, seems to be in the pocket of Trump himself - you know, whose main qualification is being the eyes and ears of the president. That would never be Bill Barr. He's a institutionalist. He understands the important values of the Department of Justice. He has integrity. He has stature. He's nobody's toady.
That's my sense in particular from having worked for him. I was a Democrat in the department, and I can attest that he was apolitical in the way he ran things, and it was about the department's law enforcement mission. And that's, I think, what you need.
MCCAMMON: Now, two weeks after your first article, you wrote a second op-ed expressing alarm at what you called a constitutionally dubious memo that Barr wrote to the Justice Department. In that memo, Barr criticized Mueller's investigation into possible obstruction of justice by President Trump. What do you think Barr's motivation was in writing the memo? And do you worry that Barr would fire Mueller?
LITMAN: Right - two parts. I think his motivation was really to just lay out his views. I don't think - I know people are concerned about this - that it was some kind of audition for the job or anything that indicates he, you know, would put his thumb on the scale. What worried me wasn't even the main analysis in the memo but rather, along the way, he articulated some constitutional views of executive power that were really very expansive and might suggest - you know, I'm not sure. The Senate should ask about this on Tuesday - but might suggest that a president can't obstruct justice if he's exercising enumerated powers - appointment, removal, pardon. And that, I think, would be wrong and worrisome if that, indeed, is his view.
MCCAMMON: Should Barr recuse himself from oversight of the Mueller investigation because of this memo?
LITMAN: Yeah, it's a really good question. And, you know, Whitaker faced it. Sessions faced it. So I think the right thing to do is to serve it up to the professional staff in the Department of Justice. And my best guess would be Bill Barr would think that and do that. That's going to be one of the first questions to ask him on Tuesday - whether he would - not commit to recusing. I think he could really say, look, I've expressed views. That happens a lot. That doesn't mean you have to recuse. But the question is, would there be appearance of partiality? And I think they should ask him if he will commit to abiding by the recommendation of the professional staff.
MCCAMMON: Barr has written that he's been in the dark about many of the facts of the Mueller probe. If he were to learn that there is serious evidence against the president - and, of course, that's not something that we know right now. But if that turns out to be the case, based on what you know of William Barr, would he stand up to Donald Trump?
LITMAN: Yeah, I think so. And this is sort of reason number one that I'm bullish, you know, overall, notwithstanding my skittishness about his constitutional views. Barr is a grownup - and not simply because he's been around before. But he's just a strong person of principle. I think he would have no hesitation in telling the president, this is the law, and this is how it's going to be, and, if it came to it, resigning before knuckling under to a view that he saw as against the law.
MCCAMMON: That's Harry Litman, former U.S. attorney for the Western District of Pennsylvania who also worked for the Justice Department under attorney general nominee William Barr. He's now an attorney in California with the firm Constantine Cannon.
Thank you.
LITMAN: Thanks for having me.