During a Constitution Day speech at Hillsdale College in Michigan last week, Attorney General William Barr extolled political influence over Department of Justice prosecutions as an essential democratic check and balance against the supposed tyranny of an unelected permanent bureaucracy. While acknowledging the paradoxical nature of his position juxtaposed against the goal of achieving an apolitical system of criminal justice, he stated unequivocally that, “politics is what ultimately ensures our system does its work fairly.”
While democratic processes and accountability are critical to the functioning of government, Barr’s remarks failed to recognize that the fair administration of justice, guided by an impartial examination of evidence — and not the passions of the electorate — is a necessary restraint against prosecutions motivated by political impulse.
Barr excoriated experienced career civil servant prosecutors, portraying them as children who should have no role in final decision-making because they lack the political legitimacy to do so. Instead, he argued, only Presidentially Appointed and Senate-confirmed appointees, such as the attorney general, possess the imprimatur of approval by two branches of government chosen by the electorate, and therefore, embody the ultimate will and power of American democracy. Bureaucrats, in this case federal prosecutors, are not subject to removal by the electorate and therefore the only accountability they face, according to Barr, is from political appointees. In the case of the Justice Department, the attorney general has stated that he is the ultimate authority and accountable for every decision the Department makes. Barr claims the buck not only stops with him, but that he is the entire poker game. “All functions … of the Department of Justice … are vested in the attorney general,” he told the audience last week. Similar to President Donald Trump’s claim that he alone can fix the country, Barr’s Hillsdale College speech was his “l’état c’est moi” moment.
In a disquieting expression of his claim to exercise absolute personal control over the Justice Department and all of its organs of power, he remarked, “As I say to FBI agents, ‘whose agent do you think you are?’” While the org chart may show the chain of command as headed by the Attorney General, as FBI Director Wray testified a day later, “we, the FBI, work for the American people.” The attorney general’s inaccurate claims denigrating the ability and appropriateness of federal prosecutors to make certain litigation determinations are merely a fig leaf to justify the complete subjugation of what should be apolitical, evidence-driven, law enforcement decision-making to wholesale political influence.
Admittedly, elections have consequences and the attorney general is expected to exercise his prerogative as the president’s top law enforcement official to direct prosecutions and to ensure that the Justice Department’s activities support the administration’s policy agenda. However, even the most expansive reading of the attorney general’s ostensibly plenary authority over prosecutions should not permit politically motivated prosecutions, declinations, or other interference on partisan grounds. But, let’s start with where the attorney general is just plain wrong on how federal prosecutors operate and how they are held accountable.
Prosecutorial decisions, if not sacrosanct, usually have been put through the wringer
First, while federal prosecutors are not subject to recall at the ballot box, they face many layers of accountability that the attorney general’s speech completely ignored. Most importantly, they operate in an adversarial legal system where they are challenged by the defense bar, must follow federal rules of evidence and criminal procedure, stand before the public in the form of grand and petit juries, and are ultimately policed by the third constitutionally prescribed branch of government: the judiciary. And that is just if they want to go to court.
Second, before they even get to court, the “junior” prosecutors whom Barr contemptuously believes are trying to “set the agenda,” are supervised by senior prosecutors, who report to section chiefs, who report to U.S. Attorneys, or deputy assistant attorneys general, and so on, all the way up to the attorney general. Barr claims that the career prosecutors are likely to succumb to “a temptation to will a prosecution into existence even when the facts, the law, or the fair-handed administration of justice do not support bringing charges” merely because they are convinced of the righteousness of their cause. But, the DOJ’s own Justice Manual (“Manual”), previously known as the United States Attorneys Manual (“USAM,”) provides that prosecutors should commence a federal prosecution if, and only if, they have sufficient evidence to prove beyond a reasonable doubt that a federal crime has been committed. Without sufficient proof, it is a federal prosecutor’s ethical responsibility not to bring an action. In deciding whether to bring a case, a federal prosecutor must also consider whether there is a substantive federal interest in bringing the case, or if there are alternatives to federal prosecution. Prosecutors are required to draft prosecution memoranda outlining the merits of their cases, and then they must lay out the weaknesses of their own case and anticipated defenses. These memoranda are reviewed by supervisors, often including political appointees.
As they decide whether to initiate or decline a case, prosecutors are guided by the Principles of Federal Prosecution, which require them to consider such factors as the nature and seriousness of the offense; the deterrent effect of prosecution; the person’s culpability, criminal history, and cooperation; as well as victim interests and how the case supports law enforcement priorities. These are responsibilities and decisions that are delegated to line prosecutors. In most cases, they should be, as last year alone, the Justice Department filed nearly 70,000 federal criminal cases, not to mention nearly as many civil enforcement actions in addition to thousands of non-public investigations that are ongoing.
If the attorney general does not trust the thousands of Assistant U.S. Attorneys, and Main Justice trial attorneys to carry out each of these prosecutions and investigations in a competent and ethical way, he and his political staff are free to review each and every one of these cases. But they don’t. That is because, in the overwhelming majority, the federal prosecutors and case agents have methodically built strong prosecutions through months- or even years-long, diligent investigations, combing through tens of thousands of pages of documents, reviewing hundreds of hours of surveillance footage, and putting in the tedious gumshoe and legal work necessary to keep the country safe from crime and terrorism.
Despite all of this, Barr said “the notion that line prosecutors should make the final decisions at the Department of Justice is completely crazy.” It is arguably not as crazy as the idea that political appointees, some of whom have never prosecuted a criminal case before, should be in the habit of second guessing the tens of thousands of prosecutions brought each year by line prosecutors who know their communities and cases inside out, who have interviewed the witnesses and know better than anyone their strengths and flaws, who have reviewed terabytes of documentary evidence, and have worked the matters for years, simply because those prosecutors aren’t political animals. Oversight and supervision are good and necessary – no one disagrees that a fresh set of eyes can overcome myopia — but assuming that seasoned criminal prosecutors lack the ability to make difficult, high-stakes decisions because they are not somehow accountable is unsupported conjecture.
Third, we are not yet done enumerating the list of existing checks and balances on federal prosecutors: Individual prosecutors face scrutiny from the Inspector General, for professional misconduct from the Office of Professional Responsibility, ethics sanctions from their own bar associations, and Justice Department conduct is subject to a regular barrage of oversight by Congress and the Government Accountability Office (GAO). Entities such as the IGs and GAO are creatures of Congress and thus by extension, the electorate. Prosecutors must seek approval from Main Justice components if they want a wiretap, if they want to file a terrorism or RICO case, bring a tax fraud case, or prosecute any case of significant national importance. If Barr scoffs at the notion that a prosecutor’s decisions are considered sacrosanct, it is because they have usually been thoroughly vetted, and then vetted again, including by political leadership.
In law enforcement, politics is not a moderating influence, it’s an aggravating factor
The attorney general argued last week that politics “is a constraining and moderating force” on law enforcement. Yet Barr’s own speech decried
third world nations where new administrations routinely prosecute their predecessors for various ill-defined crimes. The political winners ritually prosecuting the political losers is not the stuff of a mature democracy.
On this point, the attorney general is correct. But his remedy of increasing political influence into prosecutions would only exacerbate the problem. While recognizing that the Department’s policy priorities may shift every four to eight years, overt political direction into who gets prosecuted or not is not a good look for the impartial credibility of the institution.
While Barr views political supervision of criminal prosecutions as a bulwark against bureaucratic tyranny, his characterization of all prosecutorial power vested in the personage of the attorney general, followed by his claim to own all FBI agents, is a chilling revelation of authoritarian tendencies. Sure, executive prosecutorial power is delegated to the attorney general, but just a reminder, federal agents and prosecutors take an oath to the Constitution and not to the president or the attorney general.
His point about control over FBI agents is particularly noteworthy because Congress, the other co-equal branch of government, has in its wisdom term-limited the FBI director to 10 years. This was not only in response to reining in future directors after J. Edgar Hoover’s 48-year position at the Bureau’s helm, but also to ensure that the director would outlast any individual presidential administration and thus not be subject to political pressure in bringing investigations.
The attorney general’s notion that politics works as a constraining and moderating influence on criminal prosecution is belied by the fact that he has done nothing to constrain or moderate the president’s suggestion to lock up his political opponents, and investigate federal law enforcement agents who deign to examine allegations of wrongdoing by the president’s allies. In a way, Trump’s vision of federal law enforcement is kind of like what the attorney general said occurs in “shithole” – sorry – third world countries.
How to Adult and/or How Not to Attorney General
The attorney general stated, “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.” But would good leaders accept the opposite – that subordinates should unquestioningly kowtow to whatever their bosses desire, especially if those desires appear driven by personal, partisan, or other improper motivations? And good leaders also probably don’t publicly insult their employees.
Barr also stated that his role, in part, is to take political heat for the actions of the Justice Department. Attorneys general and their political underlings regularly appear before Congress to receive regimented oversight beatings because that’s what they do. They are the political face of the Department. But that role also ensures that career prosecutors are not placed in the awkward position of having their deliberations about sensitive law enforcement work dissected in a political arena. The job of the political official is undoubtedly to ensure that the administration’s priorities are being followed, but also to insulate the career prosecutors from political interference so those working on cases day in and day out can concentrate solely on following the evidence, and not have to worry about the policy or political optics. If this aligns slightly with Barr’s paternalistic view, it does only insofar as one of the political appointees’ principal roles is to protect the integrity of the non-political law enforcement workforce by parrying against partisan political oversight. But while the attorney general’s speech lays out a convincing argument for the appropriateness of a political presence in the Department’s work, beware the bait and switch, and attempts to shoehorn prosecutorial decisions that reflect political favoritism under the umbrella of political supervision.
The Justice Manual states that,
The legal judgments of the Department of Justice must be impartial and insulated from political influence. It is imperative that the Department’s investigatory and prosecutorial powers be exercised free from partisan consideration.
That is because the basis for deploying or declining to use the awesome power to deprive one of their liberty or life cannot be seen as subject to political whim.
The attorney general certainly has the prerogative to disagree with, and overrule his career prosecutors on decisions they make in their cases, which are filed under his name on the briefs, but brought on behalf of the United States. If however, of the 70,000 or so cases the Department prosecutes, he chooses to selectively focus on the several cases that personally benefit or harm the president — even if his interference is viewed as unseemly at worst — it still erodes public confidence in the non-partisan and evenhanded administration of justice. It is clear Barr is casting career prosecutors as bureaucratic bogeymen in order to justify increased political interference under the pretext of moderation.
If the attorney general does not want to turn the Department of Justice into a Montessori school, the first thing he should do is not treat experienced, dedicated, career prosecutors – you know, the ones who lock up terrorists, drug lords, and human traffickers – as children. Infantilizing these civil servants is the just the latest overt step in transforming the institution of justice into a political patriarchy.
Image: Attorney General William Barr holds a press conference at the Department of Justice in Washington, DC on January 13, 2020. Photo by Win McNamee/Getty Images