Who decides?
In a speech to Hillsdale College, former Attorney General Bill Barr drew a stark contrast between politically-appointed prosecutors and career prosecutors.
Justice Briefs is a weekly newsletter devoted to federal criminal prosecution. The federal government’s evolution over the last 230 years has given federal prosecutors significant discretion. Few realize it exists and even fewer know how it is used. Justice Briefs aims to make federal prosecutions and prosecutors more accessible to the general public. Please help me in this endeavor by subscribing and sharing with others.
Justice in Brief
*In the Eastern District of New York, a man was found guilty of paying bribes to the Ecuadorian and Mexican state-owned oil and gas companies to obtain contracts to buy and sell energy. This violated the Foreign Corrupt Practices Act and the Money Laundering statutes.
*In the Southern District of California, a man was taken into custody for calling the personal cell phone of a Maricopa County, Arizona, election official and leaving a threatening message. The man said the election official “You wanna cheat our elections? You wanna screw Americans out of true votes? We’re coming, [expletive]. You’d better [expletive] hide.”
*In the Eastern District of Virginia, four foreign nationals were charged with shipping Iranian-made conventional weapons systems. During the interdiction to stop the vessel, two Navy SEALs were killed.
Controlling Justice Department Case Decisions
One of the most important questions in criminal prosecutions is who makes the decision to file criminal charges. The characteristics of the person making the decision has significant consequences for the outcome. A person who is newly graduated from law school and making the charging decision in a homicide case might miss important issues and improperly charge the case. Conversely, an experienced homicide prosecutors will be aware of those issues, look for them, and, if possible, resolve them before initiating a criminal case. The same principle holds true for career prosecutors and politically appointed prosecutors. They have different characteristics and different outlooks on cases. While they often reach the same conclusion and listen to each other, there are instances—such as the case against Michael Flynn—when the career and poltical prosecutors diverge. What happens then?
While he was Attorney General of the United States during the Trump presidency, William Barr spoke to students at Hillsdale College. He used the occasion to talk about how federal prosecutors should use their charging decision. He began referring to former Attorney General Robert Jackson’s speech to United States Attorneys in 1940. Jackson identified federal prosecutors as having “more control over life, liberty, and reputation than any other person in America.” The prosecutor, by simply investigating someone, can cause tremendous personal and financial hardship. When acting from improper motives, the prosecutor can cause significant harm. This, according to Barr, requires significant oversight.
The question becomes who should exercise that oversight. In his speech, Barr asserted that politics provides the best check on prosecutorial power. The power to appoint federal prosecutors, with the Senate’s consent, ensures some measure of political accountability. Therefore, Barr argued, politically-appointed prosecutors should have final authority over federal prosecutorial charging decisions.
Barr also argues that both the President and Congress exercise proper political oversight. He said, “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.” This same dynamic, Barr claims, gives politically-appointed federal prosecutors the ability to resist political pressure. As appointed officials, they can “take the heat” for their decisions.
The Attorney General then contrasted this with the career prosecutors. He asserted they are not accountable for their decisions. “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.”
Barr then talked about how career prosecutors require supervision. The politically appointed prosecutors must perform this supervision. In Barr’s words, “Anything less is an abdication.”
While this sounds reasonable on the surface, Barr’s position overlooks an important aspect of federal prosecution. He identifies the Attorney General, Assistant Attorneys General and United States Attorneys as the supervising attorneys. This is a small group of politically appointed attorneys considering the overall number of federal criminal prosecutions. In my medium-sized United States Attorney’s Office, the United States Attorney did not have the time to review every single charging decision. In districts along the southern border with hundreds of immigration related cases, there is no possibility that the United States Attorney reviews every case. They might spot check the occasional case but, most likely, the oversight authority is delegated to a career federal prosecutor who oversees the office’s Criminal Division. If United States Attorneys do not have the time to review all of the cases their offices initiate, the Assistant Attorneys General certainly don’t have the time, let alone the Attorney General.
Undoubtedly, Attorney General Barr is aware of this problem. He was most certainly not talking about whether to charge someone as a felon in possession of a firearm. What, then, was he talking about? Most likely, Barr was referring to high-profile cases and cases with political implications. This latter group reveals the other problem with Barr’s position: he overlooks the partisan aspect of political influence.
When Barr talks of those politically appointed being held accountable, he assumes that those in the politically appointed positions will set aside their partisan interests and biases when making these decisions. The major concern with political influence on prosecutorial desicion-making is that prosecutors will use their authority to either target political rivals or protect political friends. When Barr theorizes that Congress will serve as a check, it assumes the opposing party is in control of Congress. Otherwise, especially in today’s highly polarized environment, there is no incentive or mechanism to hold the politically-appointed prosecutors act appropriately. Nor is there any incentive for the President to intervene if the prosecution helps the President’s political cause in some way.
Therein lies the subtext of Barr’s speech. He made it as a response to criticism he received for over-ruling the career prosecutors who advanced the Flynn case. His speech was his justification for doing so. It bore little resemblence to the day-to-day function of the Justice Department.
Despite Barr’s oversight and assumption, his wider point is important. On a day-to-day basis, career prosecutors have tremendous discretion and they exercise it with little political or public awareness. In nearly every instance, these career prosecutors have little incentive to abuse their discretion and pursue baseless charges. This means there is little need for political oversight. The problem is how to deal with cases that do have political overtones and political implications. Ultimately, that is a character problem that requires virtuous but politically-appointed prosecutors. In this day and age, those can be hard to come by.
I hope you enjoyed this issue and that it made you stop and think. I would love to hear any comments, questions, concerns, or criticisms that you have. Leave a comment or send a message! Also, if you enjoyed this or if it challenged your thinking, please subscribe and share with others!
*All quotes from Barr’s speech to Hillsdale College are taken from the Justice Department’s publicly released version of the speech. The full text can be found here: Barr’s Hillsdale College speech.