The Corner

Law & the Courts

Barr Is Right About the Prosecution Power

Attorney General William Barr testifies on Capitol Hill, July 28, 2020. (Chip Somodevilla/Reuters)

Attorney General Bill Barr gave a speech at Hillsdale College on Wednesday that attracted a lot of attention. Much of that attention was for his ill-considered remark (in a question-and-answer session following the speech) that “Other than slavery, which was a different kind of restraint, [the pandemic lockdowns are] the greatest intrusion on civil liberties in American history.” The mere mention of slavery tends to overshadow all else (even though he was explicitly not making that comparison), and even accepting Barr’s own terms, the lockdowns are still not comparable to 75 years of Jim Crow or the internment of Japanese Americans, to pick two glaring examples.

The speech itself, however, deserves more careful thought, with renewed attention on the constitutional separation of powers, and it is worth reading in its entirety. Barr’s central argument draws heavily on the “unitary executive” theory laid out in Justice Scalia’s famous Morrison v. Olson dissent — a theory of executive power that was dominant from the American Founding through the Civil War. Specifically, Barr argues that the executive power over federal prosecutions properly and constitutionally rests with the president and with presidential subordinates who answer to the president, rather than with unelected, unaccountable, permanent civil servants:

The most basic check on prosecutorial power is politics. . . . But 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 . . . 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. Ironically, some of those same critics see no problem in 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 career prosecutors and police officers. But aside from 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 underlying our system. The Justice Department is not a praetorian guard that watches over 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 elected representatives . . .

The same process that produces these officials also holds them accountable. The elected President can fire senior DOJ officials at will 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. They can take the heat for what the Justice Department 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 of tough decisions and they lack the political buy-in 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.

This is absolutely correct, and how the system is designed. Of course, where it gets much stickier is when federal prosecutors are on the trail of the president himself, his friends, or his enemies. Our system was not designed for that; at the Founding, there were few federal crimes and no Department of Justice (which was created in 1870). To the contrary, the most mischievous political crime on the books — treason — was explicitly limited in the Constitution. But every procedural tool created to remedy the problem has created problems of its own, which is why I have proposed both a modest method for protecting special-counsel investigations by triggering mandatory disclosures to Congress if the special counsel is fired, and, more structurally, the creation of a separate department for handling political-corruption cases, so that controversies of this nature do not unduly distract from the rest of the Justice Department’s work. In either case, however, the ultimate power remains with the president, and the ultimate remedy with the voters.

While Barr is right in theory, he has been subjected to a lot of criticism in practice for his handling of cases involving the president’s friends. I have defended the push to drop the Michael Flynn prosecution, which should not have been brought. Roger Stone was properly prosecuted and very improperly given clemency by the president (reportedly over Barr’s objections); Barr was involved in pressing for a less draconian but still substantial sentence, which was a more defensible stance given the absurd sentence originally proposed. He has been called, properly enough, to defend that role before Congress, and to answer for it to the DOJ Inspector General. But the IG can only deliver a report; what the House can do, if it genuinely believes that Barr has crossed a line, is impeach him or defund his department.

Barr makes two other cases, besides the constitutional design, for why the attorney general, unless recused from a case, must have the power to supervise all prosecutions. One is the nature of management and its relationship to accountability:

[D]evolving all authority down to the most junior officials does not even make sense as a matter of basic management. Name one successful organization 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’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.This is what Presidents, the Congress, and the public expect. When something goes wrong at the Department of Justice, the buck stops at the top.

The other is the very principle against which Barr’s handling of Flynn and Stone must be judged: consistent application of 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 to similar cases. 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 the division down the hall would not deploy against someone who engaged in indistinguishable conduct.

Barr also made the case for a broader rethinking — the sort long pressed by the criminal defense bar — of how DOJ stretches the law:

One area in which I think the Department of Justice has some work to do is recalibrating how we interpret criminal statutes. 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. The rule of law requires that the law be clear, that it be communicated to the public, and that we respect its limits. We are the Department of Justice, not the Department of Prosecution. We should want a fair system with clear rules that the people can understand. It does not serve the ends of justice to advocate for fuzzy and manipulable criminal prohibitions that maximize our options as prosecutors. Preventing that sort of pro-prosecutor uncertainty is what the ancient rule of lenity is all about. That rule should likewise inform how we at the Justice Department think about the criminal law. Advocating for clear and defined prohibitions will sometimes mean we cannot bring charges against someone whom we believe engaged in questionable conduct. But that is what it means to have a government of laws and not of men. We cannot let our desire to prosecute “bad” people turn us into the functional equivalent of the mad Emperor Caligula, who inscribed criminal laws in tiny script atop a tall pillar where nobody could see them.

This is, again, a standard that Barr can and should be held to. The white-collar business and political defense bar has drawn, properly, a lot of attention to the nebulous uses of criminal law, including the many process and regulatory crimes in the federal criminal code — a good many of which involve the violation of some regulation never written by Congress, and which do not require proof of criminal intent. But DOJ also has an obligation to apply these same principles in considering how it prosecutes drug cases, immigration-related crimes, and other areas where defendants tend to be poorer and less well-represented.

Barr’s other major warning was about the overcriminalization of politics — a longstanding complaint of conservatives, but an ironic one from the attorney general of a president who led “lock her up” chants on the campaign trail:

If criminal statutes are endlessly manipulable, then everything becomes a potential crime. Rather than watch policy experts debate the merits or demerits of a particular policy choice, we are nowadays treated to ad naseum 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.  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 in a cage. These tools are not built to resolve political disputes and it would be a decidedly bad development for us to go the way of third world nations where new administrations routinely prosecute their predecessors for various ill-defined crimes against the state. The political winners ritually prosecuting the political losers is not the stuff of a mature democracy.

The Justice Department abets this culture of criminalization when we are not disciplined about what charges we will bring and what legal theories we will bless. Rather than root out true crimes — while leaving ethically dubious conduct to the voters — 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 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’s leaders will permit it.

The particular threat of overcriminalizing politics is that political investigations tend to be lengthy, leaving public officials under a cloud long before anybody has charged them with anything. And it can be abused in obvious ways. State prosecutors have brought some of the worst ones in recent years: the abusive prosecution of Rick Perry for trying to oust a DA who abused her office when arrested for DWI, the Wisconsin and California investigations targeting conservative donors, the California prosecution of David Daleiden for undercover journalism against Planned Parenthood.

The test of Barr’s commitment to this principle will come with the work of John Durham, who is investigating the Russiagate investigators. Durham has thus far brought only one case, and is reportedly under some fairly intense pressure to wrap up his investigation soon, perhaps in time for the election. Neither Durham nor Barr should be rushing things on a political calendar. The rule of law demands that Durham bring charges if they are well-founded, and doing so will promote respect for the idea that federal prosecutors and investigators are not themselves above the law. But if Durham brings charges that require creative or aggressive readings of the law, then both he and Barr should be criticized for violating Barr’s own standards.

In order to be held to standards, you must first have some. Barr’s speech lays out a strong case for how the Department of Justice should work. Where he can be charged with failing to follow those standards himself, it is up to political actors and voters to hold him to account.

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