Last week, Attorney General William Barr, apparently frustrated that Washington has failed to crack down on radical left-wing protesters with sufficient zeal, told federal prosecutors to charge their targets with sedition and even suggested bringing charges against the mayors of Seattle and Portland.
Last night, in a speech at conservative Hillsdale, Barr presented a rather different theory. Castigating his department for its excessive habit of bringing persnickety charges against a variety of targets, he pleaded for leniency and discretion. “In case after case, we have advanced and defended hyperaggressive extensions of the criminal law,” he complained. “This is wrong, and we must stop doing it.” In Barr’s mind, charging a few dozen anarchist cosplayers with attempting to overthrow the federal government, and prosecuting Democratic mayors for, well, something, is a perfectly appropriate application of prosecutorial discretion.
Barr’s philosophy of the Justice Department is functionally indistinguishable from Donald Trump’s. The main difference is the level of sophistication in which they are expressed. Trump’s view is summarized by his aphorism “The other side is where there are crimes” — which is to say, by definition, Trump and his allies are innocent and whatever his opponents are doing is illegal. It’s either “lock her up!” or “dirty cops!,” depending on which party is at issue. Barr’s theories have multisyllabic terms and are decorated with historical references but boil down to the same two-track approach to justice.
The Trump version of this approach to justice is to assert that every president gets to decide who is prosecuted. Trump “said he wanted to be able to tell his Attorney General ‘who to investigate’” and desired “an Attorney General who would protect him the way he perceived Robert Kennedy and Eric Holder to have protected their presidents,” according to the Mueller report. Barr’s version of the rationale for abandoning Justice Department norms and allowing the president’s ally to dictate who is prosecuted contains more multisyllabic words and historic legal references but arrives at the same conclusion.
The traditional argument for insulating the Justice Department from politics is to keep the president from turning it into a weapon to harry his adversaries while allowing his friends to violate the law. Allowing the president to politicize the choice of whom to prosecute, as Trump has demanded, would open the door to tyranny. Barr argued that the Justice Department must be political. “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,” he said. “Government power completely divorced from politics is tyranny.”
You think it’s tyrannical for the president to decide whom to prosecute? Barr says it would be tyrannical for the president not to have that power.
Barr poured scorn on the idea that the attorney general should allow nonpartisan prosecutors to make decisions. “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,” he said, referring to the wave of resignations by prosecutors protesting Barr’s overtly partisan interventions into cases of interest to Trump. “The Justice Department is not a Praetorian Guard that watches over society impervious to the ebbs and flows of politics.”
The first thing to note about this theory is that Barr never shared it when Democrats controlled the department. For that matter, nobody did. If you recall in 2016, Attorney General Loretta Lynch chatted with Bill Clinton after they ran into each other at an airport, and even though they never discussed the case involving Clinton’s wife, the encounter set off a massive national scandal. The subject of contention was whether Lynch actually mentioned the case or merely created the impression of wrongdoing by meeting with the husband of a target of an investigation.
That Lynch was supposed to insulate the department from any political interference was the premise of the controversy. Nobody asserted that she simply had the right to make political judgments about whom to prosecute, and interfere as she pleased. Profiles of Barr frequently assert that he is a committed believer in unified executive government that just happens to dovetail with Trump’s impulses. But Barr never piped up about this theory during the Lynch affair. For that matter, I’ve seen no evidence he has ever made versions of this argument during Democratic administrations. It’s a principle he hauls out exclusively during Republican administrations and then stores quietly away during Democratic ones.
Second, if we take seriously Barr’s theory that politics, not norms of neutrality, are the constraint on prosecutorial abuse, it raises the question of just how this is supposed to work in practice. Suppose the Justice Department gets ahold of evidence of wrongdoing by the president’s aides and buries it because he’d rather prosecute some anarchist he saw on Fox News. (Hypothetically.) How is the public supposed to make a political judgment if the evidence of wrongdoing never comes to light?
And third, it is revealing to compare Barr’s argument about his job to his complaints about governors. In the same remarks, Barr denounced governors for imposing quarantines. “You know, putting a national lockdown, stay-at-home orders, is like house arrest. Other than slavery, which was a different kind of restraint, this is the greatest intrusion on civil liberties in American history.” This remark is what captured most of the headlines, in part due to its astonishingly ahistorical ignorance of such episodes as the Alien and Sedition Acts, the Red Scare, the internment of Japanese-Americans, and several generations of de jure legal discrimination against Black people, to name a handful.
But note that Barr seems not to trust “politics” in this case. You would think that, since Americans can vote directly on their governors, politics would offer a useful remedy against abuses. If a governor goes too far with restrictions, the voters will throw them out of office. Instead, Barr depicted governors as if they are totally insulated from accountability. “Most of the governors do what bureaucrats always do, which is, they … defy common sense,” he sneered. In fact, governors are not “bureaucrats.” A bureaucrat is an appointed staffer. A governor is an elected official.
As usual, Barr’s standard is no standard at all. Barr declares himself free to run the Justice Department as he sees fit, because he is accountable to the public, via his boss. Governors cannot be trusted, even though they are more directly accountable than Barr is.
At almost every step of Barr’s tenure, the most hysterical prediction of his behavior has turned out to be the most correct one. Now he is openly telling the country that he believes he can run the Department of Justice as he personally sees fit, which also happens to be how Trump sees fit.