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William Barr’s Disastrous Misunderstanding of the Attorney General’s Role

September 19, 2020
William Barr’s Disastrous Misunderstanding of the Attorney General’s Role
Attorney General William Barr (Photo by Matt McClain-Pool/Getty Images)

In a speech on September 16 sponsored by the famously conservative Hillsdale College, William Barr offered a vigorous articulation of his view that all power in the DOJ resides with him. He also unleashed an unprecedented attack on the ethics, integrity, and professionalism of lawyers throughout the department that he leads.

The speech was an Orwellian defense of the politicization of the DOJ that has occurred under Barr’s leadership. He argued, in a thinly veiled reference to the so-called “deep state,” that “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. Government power,” he continued, “completely divorced from politics is tyranny.”

Yet, at every turn, Barr has stood in the way of efforts to make the DOJ accountable to anyone other than President Trump. In addition, he now is playing an important role in efforts to ensure that voters will not succeed in holding the president and his AG accountable in the November election.

Like a latter-day Louis the XIV proclaiming “l’etat, c’est moi,” Barr used his speech to assert that “‘All functions of other officers of the Department of Justice and all functions of agencies and employees of the Department of Justice are vested in the Attorney General.’” A dodgy invocation of 28 U.S.C. § 509, the Functions of the Attorney General.

The examples and logic in Barr’s speech betray a dangerous misunderstanding of the AG’s role, of the legal authority of line prosecutors and of the meaning of lawyers’ professionalism.

The role of the AG, like all government officials, is broader and more nuanced than can be grasped by reciting the literal language of any regulation. It is also defined by long-standing policies, practices, and principles of the DOJ and of previous occupants of the AG’s office.

Barr’s predecessors have, of course, variously defined the AG’s role, with some being more closely aligned with the president’s political agenda and others more focused on protecting the DOJ’s independence from politics.

Yet examining the department’s history reveals that its establishment in the 19th century recognized the professionalization of American lawyers and the value of bureaucratic autonomy and expertise. That history has been marked by traditions of respect and deference rather than denigration and direction in the AG’s dealings with line prosecutors.

Indeed, in only extraordinary circumstances would even the most partisan AG’s have interfered with, or second-guessed, decisions made by DOJ lawyers.

But Barr’s view of both the AG’s authority and that of the President is authoritarian in spirit and execution and deeply antithetical to the Constitution’s commitment to limited powers.

In past speeches, Barr has embraced the theory of the “unitary executive.” That theory holds that all executive powers are lodged in the person of the president of the United States. As a result, no exercise of authority, discretion, or judgment legitimately resides with any official other than the president. And it encourages presidents like Trump to run the executive branch in a top-down, command and control manner and to regard his subordinates as vassals to be disposed of at his whim and pleasure.

Barr is providing the ideological underpinning for Trump’s belief that under the Constitution’s Article II, which defines the jurisdiction of the executive branch, the president’s authority is “total.” Under this view he can determine and direct the DOJ’s prosecutorial work. It helps explain why Trump regarded former AG Jeff Sessions’ recusal in the investigation of Russian interference in the 2016 election as a betrayal.

Barr’s record and his actions in cases involving the president’s allies, like Michael Flynn and Roger Stone and one-time allies like Michael Cohen, have made what was once extraordinary now ordinary.

Moreover, his grandiose conception of the AG’s role and denigration of those who work in the DOJ has undermined morale throughout the Justice Department and led to resignations by numerous highly-respected career prosecutors.

That denigration was on full display in Barr’s speech last Wednesday.

That speech was filled with references to overzealous federal prosecutors plumbing every legal technicality to vex ordinary, decent Americans. This, he contended, is even more the case when they become what Barr called “headhunters” of prominent political figures.

Referencing without naming Robert Mueller or the people who have served as US Attorneys in the Southern District of New York, he accused “our prosecutors” of “all too often insert(ing) themselves into the political process based on the flimsiest of legal theories. We have seen this time and again, with prosecutors bringing ill-conceived charges against prominent political figures and launching debilitating investigations….”

And, without a hint of irony, he suggested that his subordinates were guilty of “the criminalization of politics.” He warned against going “the way of third world nations where new administrations routinely prosecute their predecessors for various ill-defined crimes against the state.”

All of this from a man who accused the Obama Administration of “spying” on the Trump campaign in 2016 and recently suggested that the DOJ consider bringing criminal charges against Seattle, Washington’s Democratic Mayor. Barr, of course, dutifully serves a president still making allusions to Hillary Clinton’s use of a private server when she was Secretary of State and who gleefully has led “Lock her up“ chants at his political rallies.

Bizarrely, Barr compared the DOJ to “a Montessori preschool” which for too long has let “the most junior members set the agenda.” He offered a caricature of the department’s history as one in which the top leadership has “blindly” deferred to “whatever those subordinates want to do.” In fact, as Barr knows, DOJ practice provides for several layers of review of decisions of line prosecutors.

But this is the way authoritarians operate. They treat adults as misbehaving children and their predecessors as dangerously permissive.

The professionalism that Barr demeans requires cultivation of independent judgment and adherence to strict codes of ethics. Professionals, especially prosecutors, take pride in their judiciousness and earn the respect of their peers not by blindly persecuting the innocent but by displaying what Yale law professor Anthony Kronman labels “practical wisdom.”

Moreover, the courts generally have shown great respect for the professionalism of federal prosecutors by according them wide latitude and respecting their discretionary charging decisions. As the late Justice Antonin Scalia once explained, those decisions necessarily involve a complex “balancing of innumerable legal and practical considerations.”

This is hardly the kind of work expected in even the best Montessori preschools.

Barr’s speech was a masterful piece of Trumpian-propaganda, cynically and with a straight face accusing others of the very sins that he himself has committed.

His high-minded appeals to the rule of law and the American spirit of liberty should not distract us from recognizing the damage Barr has done to those values. He has made a habit of defying subpoenas, mocking legitimate Congressional oversight, and using duplicity, deception, and strong arm tactics to protect President Trump’s political cronies and punish his opponents.

The AG concluded his Hilldale College remarks by repeating the admonition of Robert Jackson who was AG from 1940-1941. Jackson said that the qualities of a good prosecutor involve what he called “a sensitiveness to fair play and sportsmanship.” He noted that the “best protection against the abuse of power…lies in the prosecutor who tempers zeal with human kindness, who seeks truth not victims, who serves the law not factional purposes, and who approaches his task with humility.”

The United States will be better off when we have an AG with a sense of fair play, human kindness, and humility – all virtues which Barr regularly betrays.

Austin Sarat

Austin Sarat is associate provost and associate dean of the faculty and William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College. He is the author of The Death Penalty on the Ballot: American Democracy and the Fate of Capital Punishment.