The attorney general of the United States, William Barr, has given, at Hillsdale College, a wonderful speech on politics and the Justice Department. It builds on Robert Jackson's classic speech of 1940 that we mentioned here back in 2017 in Preet Bharara and Robert Jackson.
Barr made the essential point that political control of prosecutors helps to protect liberty. This aligns with the argument we made here in "Politicize the State Department and FDA, Please. It Beats the Alternative." Here is how Barr put it at Hillsdale:
The most basic check on prosecutorial power is politics. ... 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 completely divorced from politics is tyranny.
...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. ... the notion that line prosecutors should make the final decisions within the Department of Justice is completely wrong and it is antithetical to the basic values underlying our system.
The Justice Department is not a praetorian guard that watches over society impervious to the ebbs and flows of politics. It is an agency within the Executive Branch of a democratic republic — a form of government where the power of the state is ultimately reposed in the people acting through their elected president and elected representatives.
The men and women who have ultimate authority in the Justice Department are thus the ones on whom our elected officials have conferred that responsibility — by presidential appointment and senate confirmation. That blessing by the two political branches of government gives these officials democratic legitimacy that career officials simply do not possess.
The same process that produces these officials also holds them accountable. The elected President can fire senior DOJ officials at will and the elected Congress can summon them to explain their decisions to the people's representatives and to the public. And because these officials have the imprimatur of both the President and Congress, they also have the stature to resist these political pressures when necessary. They can take the heat for what the Justice Department does or doesn't do.
Line prosecutors, by contrast, are generally part of the permanent bureaucracy. They do not have the political legitimacy to be the public face of tough decisions and they lack the political buy-in necessary to publicly defend those decisions. Nor can the public and its representatives hold civil servants accountable in the same way as appointed officials. Indeed, the public's only tool to hold the government accountable is an election — and the bureaucracy is neither elected nor easily replaced by those who are.
Moreover, because these officials are installed by the democratic process, they are most equipped to make the complex judgment calls concerning how we should wield our prosecutorial power. ...
In short, the Attorney General, senior DOJ officials, and U.S. Attorneys are indeed political. But they are political in a good and necessary sense.
Indeed, aside from the importance of not fully decoupling law enforcement from the constraining and moderating forces of politics, devolving all authority down to the most junior officials does not even make sense as a matter of basic management. Name one successful organization where the lowest level employees' decisions are deemed sacrosanct. There aren't any. ...The Attorney General, the Assistant Attorneys General, and the U.S. Attorneys are not figureheads selected for their good looks and profound eloquence. They are supervisors. Their job is to supervise. Anything less is an abdication.
Barr went on, in his Hillsdale College speech, to warn against prosecutorial overreach, especially in criminal cases:
In recent years, the Justice Department has sometimes acted more like a trade association for federal prosecutors than the administrator of a fair system of justice based on clear and sensible legal rules. In case after case, we have advanced and defended hyper-aggressive extensions of the criminal law. This is wrong and we must stop doing it.
The rule of law requires that the law be clear, that it be communicated to the public, and that we respect its limits. We are the Department of Justice, not the Department of Prosecution. ... We cannot let our desire to prosecute "bad" people turn us into the functional equivalent of the mad Emperor Caligula, who inscribed criminal laws in tiny script atop a tall pillar where nobody could see them. ...
Taking a capacious approach to criminal law is not only unfair to criminal defendants and bad for the Justice Department's track record at the Supreme Court, it is corrosive to our political system. If criminal statutes are endlessly manipulable, then everything becomes a potential crime. Rather than watch policy experts debate the merits or demerits of a particular policy choice, we are nowadays treated to ad naseum speculation by legal pundits — often former prosecutors themselves — that some action by the President, a senior official, or a member of congress constitutes a federal felony under this or that vague federal criminal statute.
This criminalization of politics is not healthy. The criminal law is supposed to be reserved for the most egregious misconduct — conduct so bad that our society has decided it requires serious punishment, up to and including being locked away in a cage. These tools are not built to resolve political disputes and it would be a decidedly bad development for us to go the way of third world nations where new administrations routinely prosecute their predecessors for various ill-defined crimes against the state. The political winners ritually prosecuting the political losers is not the stuff of a mature democracy.
The Justice Department abets this culture of criminalization when we are not disciplined about what charges we will bring and what legal theories we will bless. Rather than root out true crimes — while leaving ethically dubious conduct to the voters — our prosecutors have all too often inserted 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, or launching debilitating investigations that thrust the Justice Department into the middle of the political process and preempt the ability of the people to decide.
This criminalization of politics will only worsen until we change the culture of concocting new legal theories to criminalize all manner of questionable conduct.
The Jewish Press newspaper of Brooklyn, which was the outlet from which we learned of Barr's speech, covered the remarks under the editorial headline, "We Should Be Listening To Attorney General Barr." Precisely correct.