It would be far better to read for ourselves Attorney General (AG) William Barr’s Constitution Day speech at Hillsdale College than to rely on the media-Democrat complex to relate what he said faithfully. The speech is posted on the Justice Department’s website. It is a scintillating explanation of the role of federal prosecutors in a free society, operating under a Constitution that guarantees liberty by dividing government power and making its exercise politically accountable.
What has gotten the most attention is the AG’s supposed belittling of career prosecutors. Ripped from its context, as if he were flipping off bumper sticker bromides rather than developing an argument, critics have feigned outrage that Barr equated the notion of trusting assistant United States attorneys (AUSAs) to make weighty decisions with letting the class syllabus be set by the tots at a Montessori preschool.
You will no doubt be shocked to learn that this is a complete distortion of what he said.
What Barr was driving at involves a significant philosophical dispute about prosecutorial power. Progressives regard it as a mere formality that the Framers vested the duty to execute the laws in the president. In their construct, federal prosecutors are not so much executive branch officials who serve the president as they are government lawyers who serve an abstraction known as “the rule of law,” which is vaguely understood to be laws enacted by Congress and rulings rendered by the judiciary — unless a Democratic president doesn’t approve of the laws or the jurisprudence. Also in their view, assistant U.S. attorneys are supposed to go about their weighty business completely insulated from politics — and, in Republican administrations, insulated from oversight by Main Justice, too. As for the attorney general, he is not the president’s lawyer but the public’s legal agent for purposes of reining in the president — except in the Obama administration, in which it was evidently fine for the attorney general to be the president’s self-described “wingman.”
As Barr explained, the Framers had a very different conception. Our system prioritizes the promotion of liberty. The principal safeguard of liberty is not the Bill of Rights; it is the Constitution’s separation of powers. In this view, there are two certain paths to tyranny: the concentration of executive and legislative power in the same set of hands and the existence of police power divorced from political accountability.
Consequently, all executive power is endowed in the president. As chief executive, the president is aided by subordinate executive officers whose legitimacy depends on both the Senate’s consent to their appointments and the fact that the power they wield belongs to the president, who is answerable to voters.
This is the paradox: We don’t want politicized law enforcement, but we must have law enforcement controlled by politics. The confusion is more semantic than substantive because “politics,” in this regard, has two distinct meanings.
The enforcement of law should never be political in the sense of partisanship — the notion that prosecutorial decisions could be based on a person’s political affiliation or ideological alliances. Yet prosecution must be controlled by politics in the sense of political responsibility under the Constitution and responsiveness to the public interest. The president is accountable for the work of the Justice Department and ultimately determines its enforcement priorities. By statute (which is how the Justice Department was created), the attorney general is responsible for all the work done by federal prosecutors. It is the AG’s duty to ensure that federal prosecution is conducted lawfully and responsibly; the AG is to be blamed if it is not.
The system does not self-actuate, nor is it supposed to. All federal prosecutors handling cases throughout the country answer to a chain of command. Even the simplest, most low-level case has supervisors. The more significant and complex the case, the more supervision it gets. And on many issues, the need to ensure that federal law is enforced uniformly throughout the United States is sufficiently strong that Congress requires district U.S. attorneys’ offices to get approval from appointed officials at Main Justice — either the AG personally or top officers whom the AG designates.
In no successful enterprise are the most significant decisions left to the lowest-ranking officials. In the Justice Department, AUSAs have the power to destroy lives by launching investigations based on mere suspicion. Yet these prosecutors have not been confirmed by the legislative branch, nor do they answer to the public. It is the responsibility of the high-ranking officers who are Senate-approved to ensure that decisionmaking is sound. If it is not, the president is then accountable for the resulting injustices. The notion that the president and his chief subordinate, the AG, should be sealed off from decisionmaking is thus ridiculous.
The Justice Department strives for a high quality of justice by trying to hire attorneys of good character as well as skill. But to protect the rights of Americans, our system does not roll the dice on the hope that only moral, able people will be trusted with power.
Even ethical, upright prosecutors can become overly invested in their cases. Ambitious prosecutors look to nail high-profile defendants — it can be the stepping stone to other professional and political attainments. These are human feelings, but they naturally create dangerous incentives to cut corners and exploit power in overbearing ways. That is why everyone who wields such power needs to be checked and supervised. That is why the Justice Department as an institution, and the attorney general as its leader, must uphold enduring standards of justice, even if that makes prosecuting individual defendants more challenging — or even impossible.
Such supervision safeguards liberty because it traces to the president, who is politically accountable, and because it prevents junior officials from distorting the law. Nothing would more endanger liberty than police power that became a law unto itself, insulated from control and inspection by elected officials who answer to the sovereign — the public.
Far from comparing responsible federal prosecutors to schoolchildren, Barr was endorsing the constitutional system that keeps them responsible.
Former federal prosecutor Andrew C. McCarthy is a senior fellow at National Review Institute, a contributing editor at National Review and a Fox News contributor. His latest book is “Ball of Collusion.” Follow him on Twitter @AndrewCMcCarthy.