I have been in DC (Northern Virginia, actually) for the last two days, in connection with Hillsdale College’s Constitution Day event. Last night, Attorney General William Barr spoke at dinner. The main subject of his speech was the rule of law, and how the rule of law is advanced by the fact that in federal agencies, final decisions are up to the senior, political appointees. In the Department of Justice, this means, ultimately, the Attorney General. (Paul wrote about the speech and the Washington Post’s dishonest attack on it here.)
Barr articulated several reasons why senior officials in DOJ get the last word on prosecutions, and should. First, they are politically accountable. An attorney general is appointed by the President and confirmed by the Senate. If someone has a problem with decisions he makes, he can be fired by the President or called before Congress to explain. In a democracy, this kind of political accountability is essential.
Second, uniformity is an important aspect of the rule of law. We cannot have a U.S. Attorney in New York advancing a novel theory against a criminal defendant in that state, while the U.S. Attorney in Florida refuses to bring a similar prosecution on the same ground. Only if DOJ’s senior officials have ultimate responsibility for decisions on prosecutions can uniformity be assured.
Third, the most senior officials generally have more experience than line attorneys, and they also have a broader perspective. A line attorney knows his own cases, but the political appointees know (and are responsible for) the Department’s policies and priorities.
Barr’s comments had a context: he talked about the fact that the D.C. press corps has attacked him for doing his job; that is, exercising his powers and duties as Attorney General. Outlets like the Washington Post see something sinister in the fact that the Attorney General is actually running the Department of Justice. This is not a consistent concern, however; as Barr pointed out, such concerns disappear when the A.G. is a Democrat.
Barr’s speech was well-received. In fact, he got four standing ovations from the Hillsdale crowd. I didn’t think he had said anything particularly controversial, so I was shocked later last night to see that the Washington Post had published a highly misleading account of the speech which I had heard only an hour or two before.
The Post’s story bears the snarky headline, Barr accuses Justice Department of headhunting and interfering with politics. The headline is flatly false. Barr did not accuse DOJ lawyers of “interfering with politics.” The Post just made that up.
The Post story reads, as usual, like a DNC press release:
Speaking at an event hosted by Hillsdale College, a school with deep ties to conservative politics…
Someday I want to see a Post story about a public official speaking at Harvard, “a school with deep ties to liberal politics.”
…Barr directly addressed the criticism that has been building for months inside the department toward his heavy hand in politically sensitive cases, particularly those involving associates of President Trump.
Translation: some DOJ lawyers are activist leftists, who don’t like it when the AG doesn’t approve their pursuing a partisan agenda. And they know they will find a sympathetic ear at the Washington Post.
Barr’s comments were remarkable in that the head of the Justice Department catalogued all of the ways in which he thought his agency had gone astray over the years, and in its current formulation harms the body politic. Barr has drawn considerable criticism for intervening in criminal cases in ways that help benefit the president’s friends.
Actually, Barr praised DOJ, while also pointing out that its career lawyers are not perfect, and are subject to temptations like “headhunting.” Has Barr drawn “considerable criticism” for executing his duties as Attorney General? Yes, from the Washington Post.
Basically, the Post took the opportunity to repeat its past smears of the Attorney General, without even trying to portray the content of his speech fairly, let alone rebut the powerful arguments he made.
I believe the television networks have aped the Post’s criticisms of Barr’s speech. Tom Cotton took all of these left-wing outlets to task on Twitter:
The AG has been accused of “attacking” career prosecutors in this speech. He wasn’t. He was making the point that DOJ is a chain-of-command institution. It cannot function with thousands of politically unaccountable line prosecutors setting their own individual policies.
— Tom Cotton (@SenTomCotton) September 17, 2020
Career prosecutors represent the government, they’re not running their own activist law firms. And that means they answer to the AG—and that he answers in turn to the President and the American people. “The buck stops at the top.”
— Tom Cotton (@SenTomCotton) September 17, 2020
Again, read the speech in full. You’ll be better informed than the journalists hyperventilating about it on Twitter:https://t.co/jx9UQV8CHP
— Tom Cotton (@SenTomCotton) September 17, 2020
I join with Senator Cotton in encouraging you to read the AG’s intelligent, thoughtful speech. As Tom notes, he repeatedly quoted former Attorney General and Supreme Court Justice Robert Jackson. I wonder whether the Post intended to smear Jackson, an icon in the legal profession, too.
I gave my Constitution Day speech today; so far no coverage in the Post. I had the opportunity to chat briefly with Attorney General Barr before the dinner last night, and learned that he does read Power Line from time to time. I hope we serve as an antidote to the nonsense he sees day after day in D.C.’s dominant paper.
