Jurisprudence

Bill Barr’s Argument for a Political DOJ Is Very Convenient for Bill Barr

His comparison of career prosecutors to preschoolers was not only insulting—it’s also deeply self-serving.

Bill Barr
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In a speech at Hillsdale College Wednesday, Attorney General Bill Barr insulted career prosecutors at the Department of Justice while once again taking aim at the prosecutions arising out of the Russia investigation.

Barr drew an analogy between career prosecutors and preschoolers, saying, “Devolving all authority down to the most junior officials does not even make sense as a matter of basic management. … 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.” The insulting comparison attracted the most attention. But his open disdain for his employees is not simply bad management. The comments are part of his broader argument that the political appointees at the Department of Justice should be making all the important decisions, not the career prosecutors. According to Barr, because he is appointed by the president, he is democratically accountable and so his decisions are more legitimate than the decisions of career prosecutors.

This argument is very convenient for Barr personally. He has taken a lot of heat for interfering in the prosecutions of President Donald Trump’s allies Michael Flynn and Roger Stone, prompting career prosecutors to abruptly resign from the cases. Some have argued his involvement in those cases was highly inappropriate, if not corrupt. It appears that his actions are now the subject of an inspector general investigation. By crafting a vision of the DOJ in which only his decisions are legitimate, Barr can swat away questions about the career prosecutors who resigned in protest of his interference.

Barr’s Wednesday remarks included some not-even-thinly veiled criticism of the prosecutions arising from the Obama administration’s investigation into Russia’s interference in the 2016 election. He has appointed John Durham to investigate the origins of that investigation. Yet it appears that the attorney general is interfering in Durham’s investigation as well, pressuring the prosecutors on that case to release a report before the presidential election. In his speech, he talked about the evils of independent counsel investigations and spoke about how prosecutors should not bring criminal charges for “technical violation” of the law and that sometimes they should recommend “a lenient sentence.”

It’s remarkable that Barr compared his own subordinates to preschoolers after he tried to unwind a prosecution meant to be insulated from DOJ politics. It’s also important to note that Barr’s argument about political appointees is a radical departure from the prevailing federal norms. The Justice Department has, for decades, sought to insulate its decision-making from charges of partisanship or political influence. The George W. Bush administration had an enormous scandal because appointed U.S. attorneys were being pressured and fired over their decisions in individual cases. Within months after the scandal broke, a number of senior officials associated with the controversy had resigned, including Attorney General Alberto Gonzales. A grand jury was empaneled to consider criminal indictments against those involved in the controversy, and, although no charges were ultimately brought, the DOJ inspector general released a report saying that the firings were improper because they were politically motivated.

Barr’s embrace of political prosecution does not appear to extend to local prosecutors. He has been quick to condemn so-called progressive prosecutors for “refusing to prosecute various … cases” and for “seeking sentences that are pathetically lenient”—the types of decisions he praised in Wednesday’s speech. He openly scorns these local prosecutors because they “style themselves as ‘social justice’ reformers.” His argument for prosecutorial discretion and leniency in sentencing seems to be limited to people who have worked with Trump.

Barr claims that because he has been appointed by the president, he has more democratic legitimacy and so he should make all important decisions. But the local prosecutors Barr is criticizing haven’t just been appointed—they have been directly elected by their communities. Those prosecutors ran for office on a platform of shrinking the criminal justice system, and their policies were ratified by voters—so why aren’t their decisions entitled to the same deference that Barr claims for himself?

The answer to that question is, unfortunately, all too clear: Barr doesn’t actually believe in the principles that he espoused in this speech. His argument isn’t really about democratic legitimacy or about the need for prosecutors to be more circumspect about filing criminal charges. He’s just looking for a way to justify his own personal behavior. And he doesn’t care if he rejects DOJ policy, looks like a hypocrite, or even insults his own subordinates while he does that.