William Barr appears for his confirmation hearing. (Photo: Diego M. Radzinschi / ALM)

William Barr, President Donald Trump’s choice for attorney general, fielded questions about nationwide injunctions, Justice Department guidance on marijuana enforcement and the Affordable Care Act during a hearing Tuesday dominated by discussion of the special counsel probe.

While early testimony focused on special counsel Robert Mueller III’s probe, members of the Senate Judiciary Committee also used the hearing to probe Barr on how he might run the Justice Department in other key areas, if confirmed.

Barr, of counsel at Kirkland & Ellis, signaled early in the day that he had no intention of recusing from special counsel Robert Mueller III’s inquiry into the Kremlin’s interference in the 2016 election. He also suggested Mueller’s report on the investigation’s findings might not be made public.

But Barr pledged to stand up to the White House if asked to do something he considered improper, telling senators, “I am not going to do anything that I think is wrong. And I will not be bullied into doing anything I think is wrong—whether it be editorial boards or Congress or the president.

Here are four key moments, unrelated to Mueller, from Barr’s confirmation hearing:

Barr, No Fan of Nationwide Injunctions

When former Attorney General Jeff Sessions headed the Justice Department, he made a habit of railing against judges who issued nationwide injunctions blocking Trump administration policies.

On Tuesday, Barr made clear he isn’t a fan of those injunctions either. In exchanges with Sens. John Kennedy, R-Louisiana, and Josh Hawley, R-Missouri, Barr said he believed the orders should be challenged.

“The fact of the matter is, there are a lot of district court judges, and you can usually find one who, somewhere in the country, will agree with you,” Barr told Hawley.

Barr also expressed concern about what he described as “the willingness of some district court judges to wade into matters of national security.” He said the appeals court process could take a long time, which means “a lot of damage can be done” before the Supreme Court weighs in.

Barr, who pointed to the travel ban litigation as an example, said the Constitution vests the authority in the president to make national security determinations and emergency acts.

“He’s politically accountable for that, and yet a judge with a lifetime appointment sitting somewhere in the country who doesn’t have the access to the information—has no political accountability—can stop a national security measure. You know, globally, essentially. And it takes a long time to get that sorted out. That’s really troublesome to me,” Barr said.

Reconsidering DOJ’s Nondefense of ACA

Barr on Tuesday left open the possibility that he might break with his predecessor in one big area: the Justice Department’s decision last summer to not defend the Affordable Care Act.

Barr was asked about the Obama-era health law by Sen. Kamala Harris, D-California. The law is at the center of a major legal challenge—brought by Texas Attorney General Ken Paxton and a coalition of mostly-conservative states—now before the U.S. Court of Appeals for the Fifth Circuit.

The Justice Department’s role in the matter, though, became a source of controversy after Sessions said in June 2018 that the agency would no longer defend the health law in court. The DOJ has a long tradition of defending the constitutionality of federal laws, and, while there are exceptions, it’s rare for the department to refuse to defend federal statutes.

Barr, in a quick question and answer with Harris, that if he were confirmed, he would “like to review the department’s position on that case.”

“Are you open to reconsidering the position?” Harris asked.

“Yes,” Barr said.

Recusing? Sure … in the AT&T-Time Warner Case

Before Tuesday’s confirmation hearing, in a meeting with Sen. Amy Klobuchar, D-Minnesota, Barr gave assurances that he would recuse from the Justice Department’s ongoing challenge to AT&T’s multibillion-dollar acquisition of Time Warner. Barr, a former Time Warner board member, reiterated Tuesday that he would play no role in the case as the Justice Department challenges a judge’s June 2018 decision to allow the deal to proceed.

When Klobuchar asked him whether he’d recuse, Barr responded, “Absolutely.”

Barr signed a sworn affidavit leading up to the merger trial that questioned whether the Justice Department’s challenge to the deal was politically motivated, based on Trump’s past criticism of CNN, a Time Warner subsidiary.

Back to the Cole Memo on Legalized Marijuana?

Jeff Sessions made no secret of his disdain for state efforts to legalize cannabis when he withdrew the Obama administration’s guidance—known as the Cole memo—in January 2018.

Under questioning from Sens. Cory Booker, D-New Jersey, and Harris, who are both believed to be eyeing White House bids, Barr said he would not pursue legalized cannabis businesses—but he urged Congress to address the growing tension between state laws allowing medical or recreational use and the federal prohibition on marijuana.

“To the extent people are complying with the state laws—distribution and production and so forth—we’re not going to go after that,” Barr said.

“I do feel we can’t stay in the current situation,” he added, saying the situation was “breeding disrespect for the federal law.”

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