An editorial in The Post said the attorney general should “leave it to the professionals.” What a dangerous notion that is. I served in the Justice Department for 15 years, half of that time as a career prosecutor. From time to time, I was overruled on decisions involving my cases. My judgment was better for the benefit of oversight and supervision, including from the politically appointed U.S. attorney. Whether direction came from even higher authority is unknown to me, but if it did, I would see it no differently. That is how a chain of command must work.
I also served in a Republican administration as deputy attorney general and acting attorney general. In that capacity, I recall no one decrying interference when I overruled the recommendation of line prosecutors and the department’s criminal division that a then-sitting U.S. senator should be indicted. He was a Democrat. I also approved the prosecution of another sitting senator. He was a Republican. Those matters came up through the bureaucracy because they were highly visible and politically controversial.
But the exercise of my authority also flowed downhill when the circumstances merited intervention. I took control of one politically charged case — despite the risk that others would claim I was interfering for political gain — because the department was taking deserved criticism for doing a poor job. As the No. 2 official, I knew what the Justice Department did was ultimately my responsibility — full stop.
Imagine a government agency, or any organization, where there is no supervision of front-line personnel and no ultimate authority bearing responsibility for institutional decisions. That would be absurd anywhere. But that is especially true in the case of the Justice Department because all of its critical operations involve exercising judgment in the context of broad legal authority.
Should we investigate or not? If so, for what and for how long? Is there sufficient evidence to conclude that a case can be proved beyond a reasonable doubt? If we prevail, what is a just sentence? Who should we recommend be pardoned or have a sentence commuted? Such decisions in a society grounded in individual liberty are among the most intrusive possible. Thus, supervision of those career-level decisions is not only permitted but also a necessity, including review at times by the highest authority.
When I served under Barr as deputy attorney general, I would from time to time rib him by saying: “Don’t worry, Bill. There are only 6,000 lawyers out there today doing things in your name.” I did so to remind both of us of our responsibility to supervise what was going on “out there.” It is impossible to oversee everything, of course, but by becoming involved in particular cases, we maintained our authority and set parameters for decisions in innumerable other matters. The attorney general and other appointed leaders are not there to be potted plants.
The decisions of the dedicated professionals who are the heart and soul of the department merit respect and a substantial degree of deference. But those decisions must also be subject to review. The higher the profile of a case, the more deserving it is of high-level attention, because the public will measure the department by its actions in such matters.
There is no reason not to take Barr at his word that he found the Stone sentencing recommendation to be excessive and acted to correct that. In their widely cited but little analyzed letter, former Justice Department lawyers claim that “it is unheard of for the Department’s top leaders to overrule line prosecutors, who are following established policies, in order to give preferential treatment to a close associate of the President.” It is certainly not unheard of for top leaders to overrule line prosecutors. The criticism added by the next phrase is a classic example of presenting a conclusory allegation (giving preferential treatment) as if it were a fact. If that was a technique learned on the job in indictments written by these prosecutors, supervision was clearly lacking.
A more risk-averse attorney general might have let the recommendation stand and avoided a political hot potato. The American people might want to think twice before concluding that is the kind of attorney general the Justice Department should have.