Published by The Lawfare Institute
in Cooperation With
Below is a transcript of the remarks as delivered by Attorney General William Barr at Hillsdale College on September 16, 2020, including the subsequent question and answer period. The remarks as prepared are available here, and full audio of the event is available here.
Thank you very much. I'm very honored to have been invited to speak at this dinner and I really appreciate your comments. It’s been great to get to know you. I've been reading you over the years, and it's a real delight to have spent the evening with you. And I’m very pleased to be able to speak to you at this Hillsdale College celebration of our magnificent Constitution, and I'm a great admirer of Hillsdale.
As I was telling Larry, I don't get to make many speeches like this, I'm usually talking about crime rates and that kind of thing. But I wanted to speak at Hillsdale because it's one of the few, maybe a handful of institutions of higher learning where it is actually worthwhile spending the money to get an education. And I mean that sincerely. Sadly, many colleges these days don't even teach the constitution, much less celebrate it.
You know, one out of every four Americans don't know who we fought the revolution against. It's pretty pathetic. And that number is increasing steadily as our educational institutions fail us. But at Hillsdale, you recognized that the principles of the founding are as relevant today and as important today as ever, and vital indeed today to the survival of our great experiment here, freedom. And I appreciate your observance, and all you do for civic education and education period in this country.
Now, when many people think of the virtues of our Constitution, they first mention the Bill of Rights. Of course, that's the talking point of the Constitution. There's a bill of rights, you have rights. And I guess that makes sense. They get the great guarantees of the bill of rights, freedom of speech, freedom of religion, and especially the right to keep and bear arms, just to name a few that are critical safeguards to our liberty.
But as President Reagan used to remind people, the Soviet Union had a constitution and even included some of these lofty sounding rights. Ultimately, however, those promises are just empty words. Because there was no rule of law in that society to enforce them. The rule of law is the linchpin of American freedom, and the critical guarantee of the rule of law comes from the Constitution's structure of separation of powers.
Now, there are many, many elements of the rule of law, and there are many, many safeguards built into our great Constitution. But tonight I want to talk about the separation of powers. The way the framers recognized that by dividing the legislative, executive and judicial powers, each significant, but each limited, would minimize the risk of any form of tyranny. That is the real genius of the Constitution, and it ultimately is more important to securing liberty than the Bill of Rights. After all, the Bill of Rights is a set of amendments to the original Constitution. And I know you all know that the framers did not think it was needed.They didn't need to include it into the Constitution and express an enumeration of rights.
Today, I want to talk about the power that the Constitution allocates to the executive branch, particularly in the area of criminal justice.
The Supreme Court has correctly held that under Article Two of the Constitution, the executive has virtually unchecked discretion to decide whether to prosecute individuals for suspected crimes. We all know that the executive is vested with the responsibility for seeing that the laws are faithfully executed.
The power to execute and enforce law is an executive function all together. And that means discretion is vested in the executive to determine when to exercise the prosecutorial power. The only significant limitation on that discretion comes from other provisions of the Constitution. For example, the United States Attorney could not decide to prosecute only people of a particular race or a particular religion. But aside from that limitation, which thankfully, remains only a hypothetical in our country, the executive has broad discretion to decide whether to bring criminal prosecutions in particular cases.
The key question then is how the executive should exercise its prosecutorial discretion. 80 years ago this spring, one of my predecessors in this job, then-Attorney-General Robert Jackson, gave a famous speech to the conference of United States Attorneys in which he described the proper role and qualities of federal prosecutors. Justice Jackson was one of only a handful of, I think three, maybe, attorneys general who ultimately ended up as a justice on the Supreme Court. Much has changed in the eight decades since Justice Jackson's remarks, but he was a man of uncommon wisdom. And it is appropriate to consider his views today and how they apply in our modern era.
Federal prosecutors possess tremendous power, power that is necessary to enforce our laws and punish wrongdoing, but power that like all power carries inherent potential for abuse. Justice Jackson recognized that, as he put it, the prosecutor has more control over life, liberty and reputation than any other person in America. Prosecutors have the power to investigate people, to interview their friends, and they can do so on the basis of mere suspicion of wrongdoing. People facing federal investigations incur ruinous legal costs and often see their lives reduced to rubble before a charge is even filed. Justice Jackson was not exaggerating when he said that while the prosecutor at his best is one of the most beneficence forces in our society, when he acts from malice or other base motives, he is one of the worst. Think about the power of a prosecutor: he doesn't have to answer to anything outside the office of the prosecutor and he can destroy people’s lives just by bringing an investigation, destroy their reputation, destroy their livelihood in today's world.
It’s not just individuals: think of the corporations -- Anderson, the accounting firm, thousands and thousands and thousands of jobs done away with in an instant because of a prosecutorial decision, and a decision that was largely discretionary, because individuals are initially responsible for the crime. And the question of whether or not you're going to impute that to the corporation and take down the corporation as well as largely a discretionary call by prosecutors. In today's world, going after a corporation or a white collar defendant is like shooting fish in a barrel. There is no contest. You threaten the company with criminal liability and all the collateral effects. No corporation is going to go to trial and fight that and the prosecutors. It’s just the question of how much the check is gonna be.
That's all within the control of a prosecutor: the power, as Justice Jackson said, to strike at citizens .The power that the prosecutor has can strike at citizens not with just his individual strength, but with all the force of the government itself. And that has to be carefully calibrated and carefully supervised, because left unchecked, it has the power to inflict far more harm than it prevents.
The most basic check on prosecutorial power is political accountability. It is counterintuitive to say that, as we rightly strive to maintain a political system of criminal justice.
But political accountability is what ultimately ensures our system does its work fairly and with proper recognition of the many interests and values at stake. Government power completely divorced from political accountability is tyranny.
Now Justice Jackson understood this. And as he explained, presidential appointment and Senate confirmation of the United States Attorneys and the senior Department of Justice officials is what legitimizes their exercises of sovereign power. You are required to win an expression of confidence in your character by both the legislative and the executive branches of the government before assuming the possibilities of a federal prosecutor.
Yet in the decades since Justice Jackson's remarks, it’s become a commonplace to argue that prosecutorial decisions are legitimate only when they are made by the lowest level line prosecutors, the career prosecutors handling any given case. Ironically, some of those same critics see no problem campaigning for highly political elected district attorneys to remake state and local prosecutorial offices in their preferred progressive image, which often involves overriding the considered judgment of the career prosecutors and police officers. But aside from that hypocrisy, the notion that line prosecutors should make the final decisions within the Department of Justice is completely wrong. And it is antithetical to the basic values that undergirds our entire system.
The Justice Department is not a praetorian guard that watches over a society impervious to the ebbs and flows of politics. It is an agency within the executive branch of a democratic republic, a form of government where the power of the state is ultimately reposed in the people acting through their elected president and their elected representatives.
I know I don't include many applause lines in my prepared speeches. Had I known this was going to be a fireside chat, I would have cut this shorter -- but I will give you something to clap about later. Okay.
The men and women who have ultimate authority in the Justice Department are thus the ones on whom our elected officials have conferred that responsibility: by presidential appointment and Senate confirmation. That blessing by the two political branches of government gives these officials democratic legitimacy that career officials do not possess. The same process that produces these officials also holds them accountable. The elected president can fire senior Department of Justice officials at work, and the elected Congress can summon them to explain their decisions to the people's representatives and to the public. And because these officials have the imprimatur of both the President and Congress, they also have the stature to resist these political pressures when necessary, and they can take the heat for what the Department of Justice does or doesn't do.
Line prosecutors, by contrast, are generally part of the permanent bureaucracy. They do not have the political legitimacy to be the public face for tough decisions, and they lack the political bias necessary to publicly defend those decisions. Nor can the public and its representatives hold civil servants accountable in the same way as appointed officials. Indeed, the public's only tool to hold the government accountable is an election, and the bureaucracy is neither elected nor easily replaced by those who are. Moreover, because these officials are installed by the democratic process, that is the appointees, they are the most equipped to make the judgment calls concerning how we should wield our prosecutorial power. As Justice Scalia observed in perhaps his most admired judicial opinion, his dissent in Morrison vs. Olson, almost all investigative and prosecutorial decisions, including the ultimate decision -- whether, after a technical violation of the law has been found, prosecution is warranted -- involve the balancing of innumerable legal and practical considerations. Those considerations do need to be balanced in each and every case. As Justice Scalia also pointed out, it is nice to say, “Fīat jūstitia ruat cælum” -- Let justice be done though the heavens may fall -- but it doesn't comport with reality.
It would do far more harm than good to abandon all perspective and proportion in an attempt to ensure that every technical violation of criminal law by every person is tracked down, investigated and prosecuted to the nth degree.
Our system works best when leavened by judgment, discretion, proportionality and consideration of alternative sanctions -- all the things that supervisors provide. Cases must be supervised by someone who does not have a narrow focus, but who is broad-gauged and pursuing a general agenda. And that person need not be a prosecutor, but someone who can balance the importance of vigorous prosecution with other competing values. In short, the Attorney General, senior DOJ officials and U.S. attorneys are indeed political, but they are political in a good and necessary sense.
Indeed, aside from the importance of not fully decoupling law enforcement from the constraining and moderating forces of politics, devolving all authority down to the most junior officials does not even make sense as a matter of basic management.
Name one successful organization or institution where the lowest level employees’ decisions are deemed sacrosanct. There aren't any. Letting the most junior members set the agenda might be a good philosophy for a Montessori Preschool, but it is no way to run a federal agency. Good leaders at the Department of Justice -- as any organization needs to -- trust and support their subordinates, but that does not mean blindly deferring to whatever those subordinates want to do.
One of the more annoying things that I hear and face and you know, this has been going on for decades, is this strange idea that political officials interfere in investigations or in cases.
I'm saying, “What do you mean by ‘interfere’?” Under the law, all prosecutorial power is vested in the Attorney General. And these people are agents of the Attorney General. And as I said, FBI agents, “Whose agent do you think you are?” I don't say this in a pompous way. But that is the chain of authority and legitimacy in the Department of Justice. And I say, “Well, what exactly am I interfering with?” When you boil it right down, it’s the will of the most junior member of the organization. He has some idea that he wants to do something, and what makes that sacrosanct? What makes the judgment of the next layer up or the next layer up or the next layer up -- each layer, by the way, fanning out and having broader and broader experience, much more experience and a broader portfolio portfolio and a broader perspective -- what makes the line attorney who's handling a particular case, their judgment so sacrosanct? The idea is, I guess, well, they're not political, and therefore their judgments won't be political.
But from my experience in the department in two different eras, career employees are not apolitical necessarily. Some are. Some are very political and can check their politics at the door, and others can't, and can be partisan. But they're not apolitical necessarily. They're human beings like everybody else, and they're very, usually less experienced individuals than their supervisors.
So this is what presidents, the Congress and the public expect. When something goes wrong in the Department of Justice, the buck has to stop somewhere, and that's at the top. The statute I referenced was 28 USC section 509, which couldn't be plainer: All functions of other offices of the Department of Justice and all functions of agencies and employees of the Department of Justice are vested in the Attorney General.
And because the Attorney General's ultimately politically accountable for every decision that the department makes, I and my predecessors have had an obligation to ensure that we make the correct decision. The Attorney General, the assistant attorneys general, the US Attorneys are not figureheads. We're supervisors. Our job is to supervise and anything less is an abdication.
Active engagement in our cases by senior officials is also essential to the rule of law.
The essence of the rule of law is that whatever rule you apply in one case must be the same rule you would apply in a similar case. Treating each person equally before the law includes how the department enforces the law. We should not prosecute someone for wire fraud in Manhattan using a legal theory we would not equally pursue in Madison or in Montgomery, or allow prosecutors in one division to bring charges using a theory that a group of prosecutors in another division down the hall would not deploy against someone who's engaged in indistinguishable conduct.
We must strive for consistency. And that is yet another reason why centralized senior leadership exists: to harmonize the disparate views of our many prosecutors in a consistent policy for the department.
I was being interviewed by a member of the press for a radio interview. And I got one of these questions like, “Why are you interfering in some case over here or some case over there?” And I said, “Well, why do you think we have one Attorney General?” I said, “We have 93 districts -- 50 states, 93 districts. Why don't you think each U.S. attorney should be a law unto themselves? Why do you think we have one Attorney General? For uniformity of law. For having consistency in the application of law. For having someone who has the entire perspective of the playing field.” And the cameramen were all nodding their heads. This made sense, this made sense.
Jackson said, “We must proceed in all districts with that uniformity of policy which is necessary to the prestige of federal law.” But I think there's more involved than prestige. Uniformity is what protects us. At the end of the day, our system is really the crystallization of the golden rule in a political system. And that's ultimately what protects us, which is, “I'm not willing to do to somebody else, what I'm not willing to have done to me.” That is ultimately the foundation of our freedom, okay?
We see that in the legislative branch. Think about it constitutionally here, since I'm talking about the constitution tonight.
The legislature in the United States, our national federal legislature, can't make one law that applies to New York and another to California. Now, there are a lot of reasons for that, think about it. Because then you could have little factions in the country, you know, buying favor and building a majority to adopt rules that don't apply to everyone the same. But it's also because you can't have the rest of the country say, “we're gonna go to war and by the way, the draft law only applies to New York.”
The Constitution requires a uniformity across the nation, so that's legislative. When you make a rule legislatively, it has to apply to everybody. But it also applies in the enforcement of the law. The same uniformity is required, because that is the ultimate guarantor of freedom.
All the supervision in the world won't be enough, though, without a strong culture across the Department of fairness and commitment to even-handed justice. That's what Justice Jackson described as the spirit of fair play and decency that should animate the federal prosecutor.
Sounds quaint today, doesn't it? In his memorable turn of phrase, even when the government technically loses its case, it has really won if justice has been done. We want our prosecutors to be aggressive and tenacious in their pursuit of justice, but we also want to ensure that justice is ultimately administered dispassionately.
So one thing I'll say is that the job of the prosecutor is to try the case and attempt to achieve a conviction of guilt. But that's when the job of the prosecutor is over. In some cases, we may express our views as to what the sentence should be, but the sentencing belongs to the judge -- the judicial function. And that’s after the prosecutor wins the case. We like that competitiveness. We like that spirit and aggressiveness, but once the case is won, passions must cool. And justice in the sentencing phase has to be fair, and that's why the sentence is given by the neutral judge.
We're all human, and like any person, a prosecutor can become overly invested in a particular goal. Prosecutors who devote months and years of their lives to investigating a particular target may become deeply invested in their case and assured of the rightness of their cause.
But when a prosecution becomes “my” prosecution, particularly if the investigation is highly public, or has been acrimonious, or if the prosecutor is confident early on that the target has committed a serious crime, there's always a temptation to will a prosecution, a charge into existence. Even when the facts of the law, or the fair handed administration of justice do not support bringing the charge.
This risk is inevitable and cannot be avoided simply by hiring as prosecutors only moral
people with righteous motivations. I am reminded of a passage by CS Lewis: “It may be better to live under robber barons than under omnipotent moral busybodies. The robber baron's cruelty may sometimes sleep. His cupidity may at some point be satiated. But those who torment us for our own good will torment us without end, for they do so with the approval of their own conscience.”
They may be more likely to go to heaven, I don't know, but at the same time likelier to make hell on earth. There's yet another reason for having layers of supervision. Individual prosecutors can sometimes become headhunters. It's all too often. They're consumed with taking down their target, subjecting their decisions to review by detached supervisors to ensure the involvement of dispassionate decision makers. This was, of course, the central problem with the independent counsel statute that Justice Scalia criticized in Morrison vs. Olson. Creating an unaccountable headhunter was not some unfortunate byproduct of that statute. It was the stated purpose of the statute.
That was what Justice Scalia meant by his famous line, “this wolf comes as a wolf.” As we went as he went on to explain, “how frightening it must be to have your own independent counsel and staff appointed, with nothing else to do but investigate you until investigation is no longer worthwhile -- with whether it is worthwhile or not, depending upon what such judgments are usually hinged on, competing responsibilities, and to have that counsel and staff decide, with no basis for comparison, whether what you have done is bad enough, willful enough, and provable enough, to warrant an indictment. How admirable the constitutional system that provides the means to avoid such a distortion. And how unfortunate the judicial decision that has permitted it.”
Now that was a problem that took care of itself. It was a statute that Democrats applauded until it applied to Bill Clinton. We did away with it in H.W. Bush's administration, took the heat, [were] castigated by all the media for killing the independent counsel statute. And then during the transition, Bernie Nussbaum, who lasted about two seconds as a White House Counsel -- a fancy New York lawyer came down, and he was part of the transition, and he came in and he said, “Do you have any advice?” This was while I was in my last days as Attorney General and I said, “Well, I think you should allow the independent counsel to die its natural death here. We took the heat for it. We did what had to be done. Don't resuscitate it. As a Republican, nothing would please me more. But as an American, it’s a bad statute.” And he said, “Well, we are committed to the most moral and ethical administration in history and we're gonna reenact it.” So they did, and the rest is history.
By the way, if you want a little kick, go to C-Span. I think they took my name off of it. But if you put in, you know, “special independent counsel statute, Nadler,” you'll see a hearing from like 1995 or six or whenever the lightwater thing was going on, with Nadler leading the committee [talking] about how terrible the independent counsel statute was, and how terrible Ken Starr was. It’s great actually, if you have time to look at it, because you know, all the arguments that were made here today nowadays were laid out before. The role of the players was. He said, “Mr. Barr, I admire you, you're very consistent on this question.” So anyway. [laughs]
Now, I said “headhunters,” and that's because as Jackson said, if the prosecutor is obliged to choose his cases, it follows that he can choose his defendants. Therein is the most dangerous power of the prosecutor: that he will pick people that he thinks he should get, rather than pick the cases that need to be prosecuted.
Any erosion and prosecutorial detachment is extraordinarily perilous, for as he said, it is in this realm in which the prosecutor picks some person whom he dislikes or desires to embarrass, or selects some group of unpopular persons and then looks for an offense, that the greatest danger of abuse of prosecuting power lies. It is here that law enforcement becomes personal. And the real crime becomes that of being unpopular with the predominant or governing group, being attached to the wrong political views, or being personally obnoxious to the prosecutor himself.
And that's what we frequently say. I'd like to be able to stand here and say, we don't see headhunting in the Department of Justice, and that would not be truthful. I see it every day. And it's a temptation that the power of prosecution is a heady power. And it is a temptation sometimes to go after people rather than crimes.We see that every night, you know. This country is in serious problems with all the problems, with real problems, we face in international affairs and domestically, when most of our news coverage -- or what passes for news coverage -- are bloviating talking heads discussing whether some action in Washington, some action taken by an official, constitutes some esoteric crime. And, you know, looking through statute books to see if we could, you know, say that this is a crime? Because disagreement no longer is enough -- political disagreement and political debate. Now, you have to call your adversary a criminal. And instead of beating them politically, you try to put them in jail. So we're becoming sort of like an Eastern European country, where if you're not in power, you're in jail or you're a member of the press.
Now one of the areas that I think there's a problem is the way we interpret statutes these days, and we have to recalibrate that if we're ever going to restore the rule of law. Clarity in the law is indispensable to the rule of law..
If a law is malleable, then it can be applied differently in different cases, and that is the breakdown of law. Now one of the most irritating developments over the last 50 or 60 years is equity driving law out of the marketplace. If you go and read Supreme Court decisions, the Supreme Court thinks it's being oh so… . And this has been going on, as I say, going on for decades… instead of articulating a law, a rule, they say it's the totality of circumstances and it’s equity. What is the conscience of the fifth vote on the Supreme Court? They can't articulate the rule. It’s that very discipline of being able to universalize the principle that you're applying in a case that ensures the rule of law and that ensures that the person is being treated fairly. And it is that process of universalizing it that says, “I'm only going to apply to this person what I'm willing to do to every other similarly situated person and be able to articulate the rule,” and we've completely lost that in our law.
That's why lawyers are so infuriating beyond their normal, you know, irritating nature, which is they can't tell the client what the law is. “Yeah, well, you could go this way, it could go that way.” And that's because their law has broken down, and it's broken down because the justices don't feel they have to go through that discipline anymore. The nature of judicial power is being debased.
Equity has its uses and its place, but it can't be constitutional law. And these are some of the points that are similarly made by Justice Scalia in his article about the rule of law being the law of rules. And in recent years, the Department of Justice has sometimes acted like a trade association for prosecutors -- more like that than the administrator of a fair system of justice based on clear and sensible rules. In case after case, we've advanced and defended hyper- aggressive extensions of the criminal law. This is wrong, and we have to stop doing it. Now.
I couldn't believe it, you know, I’d get in and I'd see some statute and people would say, “Well, how are we going to interpret this statute? This court over here said this should be limited to such and such, are we going to acquiesce in that and adopt that as our interpretation?” And normally the answer you would get in the Department of Justice is, “Well, that sort of ties us down.” Of course, that's the whole point of the law. “That sort of ties us down, we want our prosecutors to have the broadest possible discretion. We can't buy into that. Let's leave it loosey goosey.”
And I said, “Well, no, I mean, we have to say what the law is. And that decision was a good interpretation of the law. And it should be adopted. The fact that it hems us in and we can't just use this law, you know, as a utility knife is a good thing.”
But that's not the perspective generally and institutionally recently in the Department of Justice. We should want a fair system with clear rules that people can understand. It does not serve the ends of justice to advocate for fuzzy and manipulable criminal prohibitions and maximize the options of the prosecutor. Preventing that sort of pro-prosecutor uncertainty is what the ancient rule of lenity is all about. Sure, you know what that is, which is if there's fakeness in a law, you interpreted in the most lenient way possible from the standpoint of the defendant, and that rule should likewise inform what we do at the Department of Justice. When we think about the substance of the criminal law, advocating for clear and defined prohibitions will sometimes mean that we cannot bring charges against someone whom we believed is engaged in bad conduct. But that is what it means to be a government of laws and not men. We cannot let our desire to get bad people turn into the functional equivalent of the Mad Emperor Caligula who inscribed criminal laws in tiny script, atop a tall pillar where no one could read it.
To be clear, what I'm describing is not the Al Capone situation, where you have someone who has committed multiple crimes and you decide to prosecute that person for only the clearest violation. I am talking about taking vague statutory language and then applying it to a criminal criminal target in a novel way that is, at minimum, hardly clear from the statutory text. This is inherently unfair because criminal prosecutions are backward-looking. We charge people with crimes based on past conduct. If it was unknown or unclear that the conduct was illegal when the person engaged in it, that raises real questions about whether it is fair to prosecute the person criminally for it.
Examples of the department defending these sorts of extreme positions are unfortunately numerous, as are the rejections of those arguments by the Supreme Court. These include arguments as varied as the department's insisting that a Philadelphia woman violated the Chemical Weapons Convention Implementation Act, implementing the Convention on the prohibition of the development, production, stockpiling and use of chemical weapons. She did this by putting chemicals on her neighbor's door knob, as part of an acrimonious love triangle involving the woman's husband. The Court unanimously rejected that argument in Bond vs. United States.
Or they argued that a fisherman violated the anti-shredding provisions of the Sarbanes-Oxley law when he threw undersized grouper over the side of his boat, which the Supreme Court rejected in Yates vs. United States. Or more recently, arguing that aides to the governor of New Jersey fraudulently “obtained property from the government when they realigned the lanes on the George Washington Bridge to create a traffic jam,” which the Supreme Court unanimously rejected in Kelly vs. United States.
There are many other examples. In fact, you know, it's interesting when people say that the Trump administration is lawless. And I usually am kind of scratching my head saying, you know, we, we litigate all our stuff, we win a lot of it. We go through the process -- what exactly is the lawless panic? The fact is that the Obama administration had the worst record in the Supreme Court of any recent administration losing cases. Our administration so far has been doing above average in terms of winning in the Supreme Court. So, you know, I wouldn't say we were lawless.
But again, the Obama administration had some of the people who were in Mueller’s office writing their briefs in the Supreme Court, so maybe that explains something. Yeah, very aggressive positions very, you know, sort of aggressive and we're gonna prosecute these people and so forth. And then they're not crowing so much after they get whipped in the Supreme Court.
Anyway, taking a capacious approach to criminal law is not only unfair to the criminal and bad for the department, it's corrosive of our political system. If criminal statutes are endlessly manipulable, and everything becomes a potential crime, rather than watch policy experts debate the merits and demerits of a particular policy choice, we see pundits speculating about whether things can be prosecuted. This criminalization of politics is not healthy. The criminal law is supposed to be reserved for the most egregious misconduct, conduct so bad that our society has decided it requires serious punishment up to and including being locked away. These tools are not built to resolve political disputes. And it would be a bad development for us to go the way of these third world countries where political parties routinely prosecute their opponents for various ill defined crimes against the state. This is not the stuff of a mature democracy.
We abet this culture of criminalization when we are not disciplined about what charges we will bring, what legal theories we will adopt, rather than root out true crimes, while leaving ethically dubious conduct to the voters.
Our prosecutors have all too often, and they insert themselves in the political process based on the flimsiest of legal theories. We have seen this time and time again, with prosecutors bringing ill-conceived charges against prominent political figures, or launching debilitating investigations that thrust the Department of Justice into the middle of the political process and preempt the ability of the people to decide.
This criminalization of politics will only worsen until we change the culture of concocting new legal theories to criminalize all manner of questionable conduct. Smart, ambitious lawyers have sought to amass glory by prosecuting prominent public figures since the Roman Republic. It is utterly unsurprising that prosecutors continue to do so today, to the extent the Justice Department leaders will permit it. As long as I'm Attorney General I’m not going to permit it.
In short, it is important for prosecutors at the Department of Justice to understand that their mission above all others is to do justice. And that means following the letter of the law and the spirit of fairness. Sometimes that will mean investing months or years in an investigation and then concluding it is without criminal charges. Our job is to be just as dogged in preventing injustice as we are in pursuing wrongdoing. On this score, as in many, Justice Jackson said it best, and I'll close with his words: “The qualities of a good prosecutor are as elusive, and as impossible to define as those which mark gentlemen, and those who need to be told would not understand it anyway. A sensitiveness to fair play and sportsmanship is perhaps the best protection against the abuse of power. And the citizens’ safety lies in the prosecutor who tempers zeal with human kindness, who seeks truth and not victims, who serves the law and not factional purposes. And who, above all, approaches his task with humility.”
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Questioner: So thank you, General, that was spectacular. Also profound, I think. So I have the first question. I've got a few from the audience, and the minute your duties require you to go home and rest, you may do so. Partly what you just said was a process of a transfer of authority from elected people to civil servants. Do you see that going on in other parts of the government?
Barr: The Department of Justice -- I love the Department of Justice. I love the people in the Department of Justice. But as I say, the legitimacy in our system comes from political supervision and political accountability.
Questioner: Should the Supreme Court have the exclusive power to interpret the constitution?
Barr: Yes. I think President Jackson was correct that each branch has in the first instance the responsibility to interpret the constitution and what they think the constitution means. And so if the President believes that he has the power to do something under the Constitution, he should be able to exercise that power. And if the Court disagrees and orders him not to, then he's lost the case.
Questioner: What's your favorite song to play on the bagpipes?
Barr: I don't know. Too many, there are too many songs there. It's not songs. They're called tunes.
Questioner: Scotland the Brave.
Barr: Well, that's a very common one. That's the one that you see on the video playing Scotland the brave. I miss playing the bagpipes. Once when I was Attorney General last time, you know, Scalia called the chambers and said to my assistant, do you think the Attorney General would like to take a quick walk with me around the mall? And I said, “Justice Scalia, whether he realizes or not, it's a federal offense to threaten the life of a federal official.” I say the same thing about playing the bagpipes these days. People ask me to play the bagpipes. I say you know, it's an offense to threaten the life of emergency vehicles standing by.
Questioner: I think the definition of a gentleman is somebody who knows how to play the bagpipes and does not…
Barr: I’ve played since I was eight years old. And, you know, my parents being academicians and growing up on the Upper West Side in Bella Abzug’s district in New York, we lived in Columbia University Housing, which was great housing overlooking the Hudson River. But they said, Billy, it's time that you learn an instrument: violin, piano? I said, “bagpipes.”
Questioner: What if somebody wonders if ballot harvesting is constitutional, and also how do we go about in this day and age guaranteeing the propriety of our elections?
Barr: I was once head of the Office of Legal Counsel, which is sort of a legal beagle office. I can't off the top of my head give you authoritative answers on some of these questions. I will just say generally, I'm very concerned.
Let me draw a distinction between what may pass muster under some recent case law at the Supreme Court and what really is in accord with the constitutional scheme and the basic principles. And sometimes you have to go back to basic principles to understand what some of the provisions of the Constitution should mean. As I've said, the whole idea of an election is to have a single expression of will by everybody at the same time based on the same information. That's what an election is. So we have Election Day, and now we have an election season. And not only that, it's a season that has like, extra innings. So it's becoming absurd. Decisions made weeks apart are not the body politic making a sober decision about the state of affairs at one time. We're losing the whole idea of what an election is.
And when people try to play games like, “Do you have any empirical evidence that you know, mail-in ballots are, you know…” Common sense. We haven't had it on the scale that's being proposed now. So I don't have empirical evidence other than the fact that we've always had voting fraud. And there, you know, there always will be people who attempt to do that. I don't have empirical evidence that on this scale, you know, these problems were materialized. But what I say to people is, “Why do we vote today the way we do? Think about it? Why do people show up at one place where they have a list of people who are eligible to vote, you show who you are, you go behind a curtain? Why do you go behind the curtain? Secret ballot. No one else is allowed there. Why is that a rule? Coercion, undue influence. Why a secret ballot? Many reasons. You can't sell or buy votes easily if there's a secret ballot. You don't succumb as much to undue influence or pressure.”
That is all blown away -- the lessons of the English system before us and the American system, and how the vote evolved and how we tried to perfect it and protect its integrity for all this time are just swept away by mail-in voting. You don't have anonymity -- your name is connected to that vote, and you open the floodgates to coercion. And so I don't think harvesting should be permitted, personally. Some states have passed down under the Constitution, the state sets the rules and they’re permitting harvesting of ballots. But it's a potential abuse.
Questioner: I’ll go back to your main argument and that is, the authority of the Attorney General comes through the president from the people. And so do you sense a growing spirit of managing the people, managing how they vote, managing what they can do by the government?
Barr: Our constitution was meant for a discerning, informed, virtuous people. And you have to raise the question of whether we still have that in our country. We certainly have forces that are attempting to cultivate a dependent people. And it's, you know, it's the same old game. What's our bread and circuses today? It's all distraction. You know, as Pascal said, it's all about distracting people from anything that's important and principle and what's happening. That's why so many people don't pay attention. They're distracted. They're distracted by, you know, all the stimulation of their senses that go on, and that goes part and parcel with creating dependence. So you have more and more people that just don't care.
You know, I was mortified. I saw today that most people don't know what the Holocaust is about in the United States, some poll or something. I couldn't believe it. Now, I thought they taught holocausts or concentration camps very well in school, because when I was giving a memorial day speech one year, I did some research. And most high school students, if you ask them, “What do you know about World War Two?” Well, first they don't know who fought in World War Two. But then they say what they know about World War Two is about the concentration camps. And that we used nuclear weapons against Japan. Those are the two things. So I said, at least you learned about the concentration camps. “Yes, the internment of the Japanese."
Questioner: Yeah, you should visit some high schools today. If Muller's team destroyed information, who's responsible? And what I think they're talking about is wiping phones. Who's responsible? What consequences can there be?
Barr: Well, I don't want to get into that particular thing. The appropriate people in the department are taking a look at that. And we'll see. We'll see where that goes.
Questioner: What are the constitutional hurdles for forbidding a church from meeting during COVID-19?
Barr: The rule right now is articulated by the Supreme Court. Some people might disagree with that, in the sense that it doesn't go far enough in protecting religion, but the current standard is that you can place restrictions on the exercise of religion as long as you don't discriminate against religion and apply the same restrictions on everybody else that is similarly situated. You can’t allow people to go to theaters and get together in commercial establishments or other kinds of activities and then prohibit churches from doing it. And some of the states were going that far. So that's the basic hurdle you have to get over.
I know you're from Michigan, and therefore you're particularly sensitive to the caprice of the governor's regulations. I am very amused, because the press gets all huffy, huffy and puffy about you know, Bill Barr believes in strong executive power, ooh, you know, he's a, he's a fascist or something like that. But they couldn't be happier with the Governors. What kind of power are they exercising? Executive power. In many states, there are no statutes, or the legislators bowed out of the picture. They’re just letting the governors do what they want to do.
What I've said is, yes, executive power by its very nature does come and should fill the void right at the beginning of any crisis like this. In some crises like war, you do need a strong component of executive leadership. But once the emergency nature of it starts to abate, the legislature should give a little bit more guidance -- like yeah, you can do this for 30 days and then come back to us. If we don't like what we're doing, we’ll exercise a little more control over it. But there has been very little of that. And most of the governors do what bureaucrats always do, which is they act, you know, they defy common sense. And a lot of what they do is they treat free citizens as babies that can't take responsibility for themselves and others. So I was saying, well, one, you know, we have to give businesspeople an opportunity. Tell them which rule of masks you have this month. Tell the business people what the rules are, and then let them try to adapt their business to that. Then you'll have ingenuity and people will at least have the freedom to try to earn a living. But putting a national lockdown, stay at home orders, is like house arrest. Other than slavery, which was a different kind of restraint, this is the greatest intrusion on civil liberties in American history.
We supported this case. We did get a lot of the states to ease up on the churches and you know, we'd write letters to the governors and the governors would comply. But my view was, it doesn't take a rocket scientist to realize that an artificial cap of 10 doesn't make any sense when you're talking about St. Patrick's Cathedral compared to a small country church. And so one of the rules under the Constitution is you have to sort of calibrate whatever burden you're going to place on religion, you're gonna have to take account of the circumstances and make it as narrow as possible to achieve your end. And so we said, how about just a percentage of the fire marshal occupancy standard? The Supreme Supreme Court, five, four vote wouldn't go along with that because they wanted to say that you have to give a lot of latitude to governors in these crises. I agree, you should give a lot of latitude but we have epidemics and pandemics -- this is a very serious one, a grave one. But they come and just because something is a medical crisis, it doesn't give a complete blank check to executive rule.
Questioner: That leads me to wonder: I read that there have been north of 75,000 suicides during the shutdown. And what mechanism is there or should there be in the government to take care of all these ancillary effects?
Barr: Here's my problem. I have great respect for the medical profession. But the scariest day in a lawyer's life is when he realizes the medical profession is really pretty much the same as the legal profession. They're human beings. They put their pants on one leg at a time. They’re right sometimes, they’re wrong other times. There's some good doctors, there's some bad doctors. But just like lawyers, doctors are specialists. They will view a broad social problem and issue through a set of blinders in a sense. So, you know, your doctor might say to you, Bill, if you want to live 20 years longer, you should just do this, this, this, this and this. And he might be right. But I don't want to pay those costs to live 20 years longer. I'd rather take my chances. Now, I understand there are externalities here, and you can't threaten other people's lives. But the point is that you have to balance that against a lot of other factors. The point you made is exactly what was not done, but was self evident to anyone who had the power of logic. Which is, “yes, doctor, you might be right. But just think of all the collateral consequences and the costs of that. And that is not science, okay?” It is the generalist and the representatives of the entire community that should be making these balancing acts. It is not dictated by science. So all this nonsense about how something is dictated by science is nonsense.
Suicides are just the tip of the iceberg. The overdoses are out of control, they're getting back up again. After the first time in decades, this administration actually started flattening it out and bringing it down a little on opioids -- they’re going back up again. And now, with cheap methamphetamine swamping the country, and forms of opioid that are extremely deadly -- fentanyl, synthetic opioids -- we now have the overdose deaths going up. We have domestic violence getting out of control. I'm sure that the shutting down of the economy and telling everyone to stay in their house has contributed to violent crime going up in many of our cities. The interruption of education, especially for disadvantaged children in the inner city, is devastating.These costs are massive.
How you balance these things is not dictated, you know -- I'm sorry, a person in the white coat is not the grand seer who can come up with a right decision for society. A free people makes its decisions through its elected representatives.
Questioner: This is from a senior at the Hillsdale Academy. They're very nerdy down there. What is the relationship between the rule of law and economic prosperity?
Barr: One is the foundation of the other. The rule of law is the foundation of economic prosperity. The rule of the law is the foundation of civilization, including economic prosperity. And that's why these so-called Black Lives Matter people -- now that, as a proposition, who can quarrel with the proposition that Black lives matter? But they're not interested in Black lives. They're interested in props: a small number of Blacks who were killed by police during
conflict with police, usually less than a dozen a year, who they can use as props to achieve a much broader political agenda. But I view the question of Black lives as not only
keeping people alive, but also having prosperity and flourishing in their communities. And most deaths in the inner city of young Black males below the age of 44, the leading cause of death is being shot by another Black person. And that's a crime. The left likes to talk about dealing with the root causes, but all their solutions depend on peaceful streets at the end of the day -- education, after-school activities, all this stuff depends on peace. If your school is run by a gang, it's not going to get you anywhere.
And so, as I say, the foundation of all human progress is the rule of law.
Questioner: You've enjoyed excellent treatment by the media. [audience laughs] Certainly they are attentive. Newspapers in the 19th century and in the 18th century were often founded with party names in them. Something federalist. You know, “Arizona Republican.” Is the press more partisan now? What do you make of it? Is it different in kind from what we've had in the past?
Barr: Well, no. They're more ignorant than we've had in the past. I’m not an expert on the history of the press. But you used to have, when De Tocqueville wrote, you used to have small towns that today couldn't support one newspaper supporting 10, 12, or 15 newspapers. And yes, they were factional and they were political. And to the extent there was a national press, there wasn't much of one. But what they sent there was sometimes rapidly partisan, and they were quite harsh, and so forth.
More recently, they went through this long period where they were objective, and it was a profession: journalism. They held themselves out to be objective, and they were journalists, and they were, you know, trying to tell the truth. Or that's what they told us, and that has gone by the boards a long time ago. As I've said, the first time I heard the word “narrative” -- a few years ago, the word narrative just started popping up everywhere. Narratives, and hidden narrative. I said phew, that's it. We've had it, because the whole word suggests there's no objective truth, that it's everyone's perception of the truth. You have your narrative, you have your narrative, and who's to say whose narrative is correct. And so they don't care that they're not telling the truth, because they don't believe truth is a meaningful concept. It's about the pursuit of power. I'd be more tolerant of it if they were informed people, but they're not. In the old days, even the great liberal journalists were very educated, erudite people.
One last thing. So actually, the freedom of the press is something I have, something you have, something we all have, because it was written at a time when you had pamphleteers, and anyone could get their views out. In some ways, we're going back to that with the internet, which has many very bad effects. But the fact of the matter is that this idea that the media, someone who puts on a press thing somehow has more rights than somebody else to freedom of speech, or that what they write or put out is somehow legitimate journalism -- and what you write is not -- is nonsense.
Questioner: YouTube and go Google are private companies, big private companies. And they have announced a policy that they will not permit anything on their platform that calls into question the World Health Organization guidelines. And so last week, a three-month-old article by Scott Atlas, who's recently described disgraced himself by going to work in the White House, was taken down. And that means that YouTube and Google made a decision that his
-- of course, we now know he's not really a scientist -- but what about that? What is that constitutional? Does the degree of control collected in those companies make them subject to some law other than just doing what they want?
Barr: I think it's constitutional in the sense that as long as there’s no state action involved, because private people have the ability to do that. What you really have to ask yourself is the market power they have, the power that they've attained over time in the market, and whether we can inject more competition and more diversity into the market.
De Tocqueville famously talked about how the real risk of the United States and democracy generally was slipping into soft despotism -- the kind of world we see about us now. And he said he thought the two things that could save the United States from this was religion and the freedom of the press, but what he said about the freedom of the press was it's very diversity. He had a very low opinion of the press, De Tocqueville. He didn't think that the freedom of the press would save the United States because, you know, these guardians of the truth and the exposé are out there on the front line protecting our liberties. Far from it. But what he said was the sheer diversity, because when you get into a position where there's one force or power lashing the multitude, you get the militant majority, the galvanized majority, which was the great threat. And as you know, the framers thought that there were different ways they were preventing, you know, the coalescence of these different factions. Nowadays, it's hard to imagine a more concentrated situation where people are all fed the same crap. And you can galvanize a majority like that in this country.
I love it when Fox News shows all the talking points that every single station uses. They all use the exact same bing, bing, bing, bing, bing, bing. I wouldn't be surprised if they had a conference call at the beginning every day. Okay, what's the message of the day? They use exactly the same language. That's bad. Now a lot of that is public airwaves. I think we have to take a look at that myself. But you know, it's the same thing with virtually all media, and now on the internet you have these vast concentrations of power that are bigger and more powerful than virtually every nation in the world, with the exception of a handful. And you know, they think that they are the arbiters of truth and control the message that people get.