The origins of Barr’s speech are not difficult to see. Barr has been under fire (and, as to Stone, is now reportedly under investigation) for political interference in the prosecutions of Roger Stone and Michael Flynn, allies of Barr’s boss, President Trump. Without naming those cases, Barr’s speech is a response to such criticisms. To hear Barr tell it, we’ve got it all wrong: He didn’t intervene for improper reasons, but to uphold the rule of law and protect all of us from rogue, “bureaucrat” prosecutors.
Barr claims “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.… 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.”
But this is a silly straw man. No one argues that junior prosecutors should “set the agenda” for the department or be free from supervision. Prosecutors in the Flynn and Stone cases had not gone rogue; they were acting pursuant to standard DOJ practices and had the blessings of their supervisors until Barr stepped in.
Similarly, no one denies that Barr and other senior officials have the right to review decisions by line prosecutors and even overrule them. But the issue is: Why those two cases? Many otherwise-proper actions can become wrongful if done with corrupt intent. When it comes to Flynn and Stone, Barr’s Justice Department ignored long-standing policies and precedent to benefit the president’s political allies. In perhaps the most ironic line of the speech, Barr notes that 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 similar cases.” That’s exactly what was not done with Stone and Flynn.
Still, Barr stepping in to overrule career prosecutors was appropriate, he says, because he, unlike them, is politically accountable. “The most basic check on prosecutorial power,” he argues, “is politics.” The attorney general and the U.S. attorneys are political appointees who may be held accountable for their actions. Line prosecutors, he argues, do not have the “political legitimacy” to make tough decisions or to publicly defend those decisions. That’s why Barr had to, as he describes it, bravely step up and take the heat for doing the right but unpopular thing.
This confuses broader criminal policy with actions in particular cases. Line prosecutors publicly make and defend tough decisions on behalf of the United States in their cases every day. The voters can indeed hold an administration accountable for criminal law policy: a decision to prioritize immigration crimes, for example, or to decline to enforce laws against marijuana. But politics generally cannot act as a meaningful check on prosecutorial power in individual cases. Criminal defendants can’t rely on the next election to ensure that justice is done in their cases, and those who aren’t friends of Trump can’t rely on the attorney general stepping in to save them.
But there are important, nonpolitical checks on prosecutorial power. For example, although Barr’s speech emphasizes checks and balances, he says nothing about the critical role of the independent judiciary. Perhaps that’s not surprising: In the Flynn case, Barr’s Justice Department has essentially argued that a federal judge has no right to question what prosecutors do, even if it appears they are acting for corrupt reasons. When Judge Emmet G. Sullivan is through with the Flynn case, Barr may have learned a lesson about the role of the judiciary in policing prosecutorial abuse.
But the most important check on prosecutorial power is a culture of integrity and apolitical law enforcement within the DOJ. Too much goes on behind the scenes to rely primarily on public, political remedies. Sound exercise of prosecutorial discretion requires a culture that recognizes a prosecutor’s job is to see that justice is done, not to pursue political agendas or individual enemies.
That’s the culture that I and the thousands of other former prosecutors who are appalled by Barr’s actions saw and lived every day. It’s something the career DOJ professionals whom Barr derisively labels as “bureaucrats” understand. That kind of culture comes from the top, set by leaders who understand the department’s historic mission and independence. And that’s the culture that Barr has eroded through his politicization of the Justice Department.
The essential flaw in Barr’s argument is his view that criminal prosecution is ultimately just another political exercise. He pays lip service to the idea that prosecution should be apolitical, but it’s plain he doesn’t really believe that’s possible.
Barr, who has never been a prosecutor, is unable to separate politics from prosecution — and apparently can’t believe anyone else could, either. He’s wrong about that, but he’s right about one thing: He and the administration can be held politically accountable for their corruption of the Justice Department.