Attorney General William Barr gave a speech condemning the “criminalization of politics” while calling for line prosecutors to be reined in and Justice Department leadership to assert itself.
The Trump administration’s top law enforcement official spoke at the conservative Hillsdale College’s Constitution Day dinner on Wednesday as he faces public scrutiny over decisions in cases against Roger Stone and retired Lt. Gen. Michael Flynn.
Barr stressed the “power that the Constitution allocates to the executive, particularly in the area of criminal justice,” noting that “the Supreme Court has correctly held that, under Article 2 of the Constitution, the executive has virtually unchecked discretion to decide whether to prosecute individuals for suspected federal crimes.” Barr also argued that “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,” but “the notion that line prosecutors should make the final decisions within the Department of Justice is completely wrong.”
Though he did not mention the controversies by name in his speech, in the backdrop are two high-profile cases spun off from former special counsel Robert Mueller’s investigation: DOJ Inspector General Michael Horowitz’s decision to launch an inquiry into Barr’s intervention in Stone’s “unduly high” sentencing recommendation and a legal battle following what Barr has described as his “duty” to urge prosecutors to dismiss the criminal charges against Flynn. In addition, U.S. Attorney John Durham recently collected his first guilty plea in the criminal inquiry of the Russia investigation, with a possible interim report speculated to be released before the November election.
“The men and women who have ultimate authority in the Justice Department are … the ones on whom our elected officials have conferred that responsibility by presidential appointment and Senate confirmation,” Barr argued. “Line prosecutors, by contrast, are generally part of the permanent bureaucracy … Our system works best when leavened by judgment, discretion, proportionality, and consideration of alternative sanctions — all the things that supervisors provide.”
“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,” he added.
After Justice Department prosecutors recommended a prison sentence of up to nine years for Stone in February, President Trump tweeted that he “cannot allow this miscarriage of justice!” The Justice Department then reversed itself, and the four line prosecutors withdrew from the case. One of them, Aaron Zelinsky, testified before the Democrat-led House Judiciary Committee this summer. The department said its decision to reverse course was made before Barr was aware of Trump’s position, and the president denied placing any pressure. The Justice Department walked back the “unduly high” sentence recommendation, suggesting three to four years instead. Stone was sentenced by Judge Amy Berman Jackson to 40 months for obstruction of justice and 12 months for the other five counts to be served concurrently.
Trump commuted Stone’s sentence in July.
The Justice Department also told a D.C. district court in May that “continued prosecution of this case would not serve the interests of justice” as it sought to drop the Flynn case. Instead, presiding Judge Emmet Sullivan appointed retired New York Judge John Gleeson to present arguments in opposition to the Justice Department’s motion and to explore whether Flynn should be charged with perjury or contempt.
Flynn, who was briefly Trump’s first national security adviser, pleaded guilty in December 2017 to lying to FBI investigators about his December 2016 conversations with a Russian envoy. But after changing legal teams, Flynn claimed he was innocent. After Barr appointed U.S. Attorney Jeffrey Jensen to review Flynn’s case, a host of new documents deemed exculpatory by Flynn’s lawyers were discovered. Jensen said he “concluded the proper and just course was to dismiss the case.” Sullivan refused to dismiss the case quickly, a monthslong appeals court battle ensued, and the case was sent back to the district court, where a hearing will be held near the end of the month.
“Letting the most junior members set the agenda might be a good philosophy for a Montessori preschool, but it’s no way to run a federal agency … Individual prosecutors can sometimes become headhunters. All too often, they’re consumed with taking down their target,” Barr said on Wednesday. “Because I am ultimately accountable for every decision the department makes, I have an obligation to ensure we make the correct ones.”
“Stone was prosecuted under me. I’ve said all along I thought that was a righteous prosecution. I thought he should go to jail, and I thought the judge’s sentence was correct,” Barr testified before the House in July. “I agree, the president’s friends don’t deserve special breaks, but they also don’t deserve to be treated more harshly than other people.”
Barr further defended the Flynn dismissal in May, saying, “I’m doing the law’s bidding. I’m doing my duty under the law as I see it.”
“This criminalization of politics is not healthy,” Barr said Wednesday. “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.”
