Barr was discussing limitations on religious services during the pandemic, and there are legitimate questions about whether some restrictions on worship have gone too far. But the slavery comparison is beyond offensive. Slavery was evil. Pandemic rules are grounded in concerns for public health.
And even if the two phenomena were somehow legitimately considered along the same continuum, there is no way that the covid-19 lockdown could be accurately labeled “the greatest intrusion on civil liberties in American history.”
How about the internment of U.S. citizens and noncitizens of Japanese descent during World War II? How could anyone, no less the attorney general, who oversees civil rights enforcement, analogize covid-19 restrictions to slavery? “A different kind of restraint”? How does that sound to anyone with an ounce of historical memory — or of decency?
He warned that electing Joe Biden would put the nation on the road to socialism. “I think we were getting into a position where we were going to find ourselves irrevocably committed to the socialist path,” Barr said in an interview. “And I think if Trump loses this election that that will be the case. In other words, I think there’s now a clear fork in the road for our country.”
Leave aside the bizarreness of believing that electing Biden would consign Americans to life under socialism. Barr’s entitled to think so. But he’s the nation’s chief law enforcement officer. He’s supposed to be removed from partisan politics, so we can trust — in theory — that partisanship hasn’t infected prosecutorial decisions. “As an attorney general, I’m not supposed to get into politics,” Barr said in that same interview — right before getting into politics.
He belittled his own department: “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,” Barr said at Hillsdale. He depicted career prosecutors as over-aggressive “headhunters” in need of being reined in by “detached supervisors.”
Barr was responding, without mentioning it, to criticism of his remarkable interventions in the cases of Trump allies Michael Flynn and Roger Stone. Of course, there are appropriate times for supervisors, including political appointees such as the attorney general, to step in.
But the circumstances of Barr’s involvement in the Flynn and Stone cases did not conjure up the “dispassionate decision-makers” of his imagining — they suggested that political appointees were overruling career prosecutors precisely because of political connections. “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,” Barr proclaimed. No one believes that Flynn and Stone would have received the same kind of solicitude if they were not friends and campaign allies of the president.
He urged using sedition laws to prosecute protesters. The Wall Street Journal reported that on a conference call with federal prosecutors last week, Barr pushed them, rather than leaving the matter to state officials, to be aggressive in going after violent protesters, including possibly using “seditious conspiracy” charges.
Talk about prosecutorial overkill and the need for “detached supervisors.” The rarely used sedition statute makes it a crime to attempt “to overthrow, put down, or to destroy by force the Government of the United States . . . or by force to seize, take, or possess any property of the United States contrary to the authority thereof.” Could violent protests fall within the parameters of this statute? Arguably. Would it be wise to use such a law, with the attendant concerns about free speech, to prosecute protestors? No — certainly not when there are other, more straightforward, less constitutionally dangerous statutes available.
There is a remarkable quality of obtuseness — or, possibly, gaslighting — to Barr’s arguments. At Hillsdale, he bemoaned “hyperaggressive extensions of the criminal law.” This from an attorney general who had urged his prosecutors to do just that with the sedition statute.
He decried the unhealthy “criminalization of politics,” adding, “The political winners ritually prosecuting the political losers is not the stuff of a mature democracy.” This from the attorney general for a president who reveled in chants of “lock her up” against his opponent.
And he accused those who fear a defeated Trump will refuse to leave office of “creating an incendiary situation where there will be loss of confidence in the vote” — this from an attorney general who described mail-in voting as “playing with fire” and trumpeted the risk of fraud.
Barr’s Constitution Day address quoted, inevitably, former attorney general Robert Jackson’s famous address on the role of the federal prosecutor. Suffice it to say, 80 years from now, no one will be quoting Barr, except as a cautionary tale.