Published by The Lawfare Institute
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Attorney General Bill Barr’s Constitution Day speech to a gathering organized by Hillsdale College has sparked a furor, both because of the speech itself and because of his bizarre claim in answering a question that states’ coronavirus response ranks as the greatest civil liberties violation in the nation’s history—other than slavery.
It wasn’t Barr’s only weird spontaneous moment. During the question and answer session, the attorney general came out not merely against mail-in voting but against all multi-day voting, fretting that “We’re losing the whole idea of what an election is.” He disparaged American education about World War II, contending that many people reduce the war effort to the internment of Japanese Americans and the bombing of Hiroshima and Nagasaki. He complained about people believing that coronavirus policy decisions should be “dictated by science,” arguing that science doesn’t answer the key trade-off questions. He criticized the press as not merely partisan but as “more ignorant” than it used to be, saying he would be “more tolerant of [the bias] if they were more informed people. But they’re not.” He went on an extended denunciation of the word “narrative.” And he denounced “these so-called Black Lives matter people,” who—he declared—are “not interested in black lives. They’re interested in [using] props—a small number of blacks who are killed by police . . . to achieve a much broader political agenda.”
The attorney general’s extemporaneous comments aside, the speech itself—prepared remarks which Barr liberally added to during his delivery—has also drawn fire.
The speech is, on its face, a generalized defense of political leadership at the Justice Department. The remarks are framed in the abstract, without reference to contemporary cases. But the speech reads as a defense of Barr’s own interventions in a series of cases arising out of the Mueller investigation, involving figures prosecuted for crimes related to L’Affaire Russe, and on matters touching on the president’s personal and political interests more generally. When Barr ad libs in the speech and departs from the text itself, he brings the subtext vividly to the surface, from which it is never far in any case.
In his remarks, Barr energetically defends the proposition that career Justice Department officials are supervised by an echelon of politically appointed officials; he argues that this is a feature, not a bug, because politically appointed officials are accountable to voters and to Congress in a fashion that career officials are not. And he argues that it is appropriate for political officials to override the judgments of career officials sometimes—including in individual cases—both in the interests of uniformity of justice and in the interests of not becoming too fixated on a particular result. Barr also argues against the department’s taking exotic readings of criminal statutes in a manner that serves to criminalize conduct people didn’t previously know to be criminal.
Had a prior attorney general of either a Democratic or Republic administration made similar claims, few people would so much as have raised an eyebrow. When Barr insists in an ad lib that all Justice Department employees are merely “agents” of his own self as attorney general, his point comes off as egocentric, but he’s not technically wrong. He is the head of the department, the person in whom the law vests the authority.
So if Barr’s protestations sound like a defense against an attack that nobody is launching, that’s because it is. On the surface, anyway, Barr’s speech is an impassioned defense of unobjectionable propositions to which no one is actually objecting. No one is arguing that the attorney general lacks the authority to intervene in specific cases or to overrule career officials. Barr’s critics aren’t even contending that it is always improper to do so. Nor are they making a general argument against political-level supervision of career officials; that is the system the United States has, after all. And contrary to Barr’s sneering suggestion, critics are not really arguing either that prosecutorial decisions should be made by officials at the lowest rungs on the ladder. No matter how many times the president claims otherwise, nobody is championing an unchecked and unaccountable “deep state.” It doesn’t exist and no one says it should—at least nobody serious.
But Barr’s speech has a subtext in the context of his actions over the last few months. And in that context, it is a defense of Barr’s politicization of the department’s work. In this sense, it is a direct response to what his critics have actually been arguing.
The concern of Barr’s critics—ourselves included—is that Barr has exercised his undoubted supervisory powers in an improper, even corrupt, fashion, and that he has done so in a sustained effort to undermine the results of Robert Mueller’s investigation. The criticism is that he has exercised those powers to frustrate legitimate investigations and prosecutions. And it is that he has done all of this not because of legitimate concerns about the uniformity of justice or fairness to defendants generally but to protect individuals close to the president who appointed him and to serve Trump’s personal and political interests in attacking investigations of himself.
We aren’t saying Barr is deploying powers he doesn’t have or that it is wrong for attorney generals to have such powers and even to use them; we’re saying he has abused powers he certainly does have and that attorneys general need to have.
This is where the speech’s context becomes important. Because in mounting his lofty and abstract defenses, Barr is actually trying to justify specific things he has done.
When Barr says that “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” and explains that that such “blessing by the two political branches of government gives these officials democratic legitimacy that career officials simply do not possess,” he is actually not talking in the abstract. He is explaining why it is legitimate for him to intervene in cases like that of Roger Stone and Michael Flynn, overturning the judgment of career officials to the benefit of presidential cronies. He makes this point particularly clear in an extemporaneous aside in which he scoffs at journalists who have described him as having interfered or intervened in cases—as though, he says, supervising career prosecutors were not his job.
Neither is Barr speaking in the abstract when he says that “under Article II of the Constitution, the Executive has virtually unchecked discretion to decide whether to prosecute individuals for suspected federal crimes.” This is, after all, precisely the issue Barr put in front of the court in the Flynn case—when, over the objections of the career prosecutors trying the case, he decided to drop the prosecution after Flynn had twice pleaded guilty.
Nor is Barr speaking in the abstract when he says that “having layers of supervision is so important” because “[i]ndividual prosecutors can sometimes become headhunters, consumed with taking down their target.” It is necessary, he is arguing, to have people like him—political appointees willing to take the heat for decisions—who can step in and dismiss cases in which prosecutors get fixated on getting the target and thus need “review by detached supervisors” to “ensure involvement of dispassionate decision-makers in the process.” Barr doesn’t mention Flynn’s case here, but he doesn’t need to.
Barr is only being a little more plausibly abstract when he talks about how “In recent years, the Justice Department has sometimes acted more like a trade association for federal prosecutors than the administrator of a fair system of justice based on clear and sensible legal rules. In case after case, we have advanced and defended hyper-aggressive extensions of the criminal law. This is wrong and we must stop doing it.” This point is not precisely the same as Barr’s complaint about the way the career lawyers he overruled behaved in the Stone case, but it’s a close cousin. In that case, Barr contended that the career lawyers took a hyper-aggressive view of the federal sentencing guidelines in their original sentencing memo and in which Barr had the department file a subsequent brief urging greater leniency.
And Barr barely bothers to conceal whom he’s talking about when he insists that “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 underlying our system” or when he sneers that “Letting the most junior members set the agenda might be a good philosophy for a Montessori preschool, but it’s no way to run a federal agency. Good leaders at the Justice Department—as at any organization—need to trust and support their subordinates. But that does not mean blindly deferring to whatever those subordinates want to do.” He’s talking here about Aaron Zelinsky, Brandon Van Grack and the other career prosecutors who have balked at his interventions and removed themselves from key cases.
Perhaps most importantly, Barr isn’t speaking in the abstract when he decries that “our prosecutors have all too often inserted themselves into the political process based on the flimsiest of legal theories. We have seen this time and again, with prosecutors bringing ill-conceived charges against prominent political figures, or launching debilitating investigations that thrust the Justice Department into the middle of the political process and preempt the ability of the people to decide.” This is, of course, a dig at none other than Robert Mueller and his interpretations of the obstruction of justice statutes. “It does not serve the ends of justice to advocate for fuzzy and manipulable criminal prohibitions that maximize our options as prosecutors,” Barr intones, going on—in case anyone misses the point—to stress that, “Rather than watch policy experts debate the merits or demerits of a particular policy choice, we are nowadays treated to ad nauseum speculation by legal pundits—often former prosecutors themselves—that some action by the President, a senior official, or a member of congress constitutes a federal felony under this or that vague federal criminal statute.” In an ad lib at the end of this part of the discussion, Barr notes that the Obama administration had people writing Supreme Court briefs who later went on to serve in Mueller’s office —suggesting that this might explain what he considered the extravagant criminal law positions the prior administration took in the Supreme Court.
Between the lines, Barr is advancing a corrupt and distorted vision of the Department of Justice—one in which it is okay for the attorney general to use his supervisory powers over the department to advantage the president’s cronies. It is a vision that warps traditional understandings of prosecutorial discretion and political accountability and shows no interest in preserving precisely the public legitimacy to which it appeals for support.
As many attorneys general have before, Barr quotes Robert Jackson’s famous 1940 address to the U.S. attorneys to note the dual nature of prosecutorial discretion. Prosecutorial discretion is, of course, essential to justice. This is true at the individual case level, in which mechanical application of the law to all people in all circumstances would itself produce injustice. It is also true at the policy level, where discretion allows for flexible and publicly accountable law enforcement. As we wrote in our book, “Unmaking the Presidency,” prosecutorial discretion:
is what allows the justice system to be nimble, targeting drug cartel crimes in the 1980s and 1990s and shifting to terrorism and internet crimes in the subsequent decade. The law can be slow to change. The political system’s enforcement priorities, by contrast, can shift much more quickly; think of how attitudes toward nonviolent drug offenses have changed over the past decade much faster than the laws on the subject. Prosecutorial discretion allows flexibility even in the absence of legislative change that can be slow and difficult.
The paradox is that discretion brings with it the highest risk of abuse. As Jackson put it:
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 cases that need to be prosecuted. With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone. In such a case, it is not a question of discovering the commission of a crime and then looking for the man who has committed it, it is a question of picking the man and then searching the law books, or putting investigators to work, to pin some offense on him. 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...
Jackson is describing the evil of politically-motivated law enforcement, wherein the prosecutor wields the law to target the enemies of those in power and, conversely, to protect the friends of those in power. The challenge is how to best guard against this risk, while preserving necessary discretion.
Barr insists that “political accountability—politics—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 politics is tyranny.” And he complains that “in the decades since Justice Jackson’s remarks, it has become fashionable to argue that prosecutorial decisions are legitimate only when they are made by the lowest-level line prosecutor handling any given case.”
It is neither true that prosecutorial decisions are only legitimate when made by line prosecutors nor that it is fashionable to argue as much. The actual line of argument is that while concerns about accountability are heightened at the career level, the risk of politically-motivated abuse is heightened at the political level.
This is why every attorney general is pressed during confirmation hearings to reassure Congress and the public that he or she will act as the chief law enforcement officer of the United States and not as the president’s personal lawyer or hired gun. At his own confirmation, Barr himself pledged that he would not be “bullied” by the president or anyone else into doing anything he believed to be “wrong.”
And while Senate-confirmed officials bring to the table the legitimacy of political accountability, career officials bring the legitimacy of regular order, the department’s traditions and knowledge of similar cases. Career prosecutors are governed by guidelines designed to guard against improper political considerations. Barr claimed in his speech that career prosecutors have political biases too—just not the political accountability for their actions—but the collective record of the career prosecutors of the department actually does stand for the relatively even-handed administration of justice in politically sensitive matters.
Prior attorneys general have recognized the necessity of this legitimacy, particularly in cases that might touch on the interests of the president. The entire system of special counsel regulations—and the independent counsel statute before it—was created to preserve legitimacy in matters in which the attorney general and his appointees were unable to be impartial, in perception or in fact. And while line-level prosecutors do not have the final say, their professional judgments do carry presumptions of apolitical regularity. When attorneys general intervene in cases that might touch on the president’s interests, they have traditionally done so very cautiously. They have recognized that it would profoundly damage their institution to be seen as doing the political errands of the president.
One might think that an attorney general would be especially cautious when serving a president with a documented history of publicly and privately directing the abusive prosecutions of political opponents. In February, Barr himself said that Trump’s public tweets on cases including Stone “make it impossible for me to do my job.” Under such circumstances, to make a cause out of the right of intervention, as Barr has done, is perverse in the extreme.
Yet Barr, whatever may be in his heart, has elevated his ability to intervene in and supervise cases above any perception of apolitical justice. He would presumably counter that he is simply doing the right thing as he understands it, unrelated to Trump’s political fortunes—indeed, Barr allies are pushing precisely this spin in media accounts. This would be easier to accept if Barr routinely interfered in cases and overturned the judgments of his subordinates in ways which occasionally cut in the perceived favor of the president, occasionally cut against, and often were wholly unrelated to the president’s desires, tweets, and fortures. In such a scenario, Barr might be criticized as a micromanager, but it would be difficult to allege political abuse.
But that’s not the case. Barr does not routinely intervene in cases. He has selectively intervened in specific cases affecting Trump and, at least to our knowledge, always in the direction Trump has publicly urged. He doesn’t even really try to pretend otherwise, simply asserting that he is relying on his own personal sense of justice and reading of the law and not the president’s instructions. Rather than taking pains to guard against perceptions of political interference, he gives incendiary interviews and speeches. Rather than cultivate a reputation for honesty, Barr publicly misrepresents the circumstances of the firing of a U.S. attorney overseeing an investigation into Trump administration and campaign officials.
In his speech, Barr decries the “criminalization of politics” and policy differences, and the propensity to investigate rather than just argue. But Barr has eagerly set about precisely such profligate investigations, accusing his predecessors of spying on the president and launching a vague “administrative review” of the origins of the Russia investigation as a poorly concealed hunt for a criminal predicate. As in the Stone and Flynn cases before, prosecutors have now resigned from John Durham’s probe, reportedly in protest of Barr’s political meddling. Barr hasn’t bothered to disguise his hopes that Durham’s probe will produce a report in the lead up to the election.
Barr says in the text of his speech that “the most basic check on prosecutorial power is politics” and lauds the separation of powers as an essential check on tyranny, but he doesn’t act like someone who respects the constitutional prerogatives of the coordinate branches. To the contrary, even as he insists that he enjoys legitimacy as a politically appointed official because he is accountable to Congress, he has repeatedly refused legislative demands for his own testimony and Justice Department documents. He has directed the department to argue against a federal judge’s attempts to understand whether there were illegitimate motives behind the department’s about-face in the Flynn case. Even as he claims that the political check is the appropriate one, he litigates against congressional attempts to exercise basic fact-finding powers in oversight and impeachment.
Barr’s speech, taken in the context of his actions, is less a defense of politics as a means of ensuring the integrity of the department’s work than it is a defense of politicization of the department. The attorney general is proposing that his supervisory powers over the career officials he commands entitle him to deploy the department for the naked political benefit of his team, without pausing over the reality or appearance of impartiality or the preservation of legitimacy through the department’s norms and traditions.