Barr Defends His Power to Overrule Decisions Made by Lower-Ranking Prosecutors

September 17, 2020 Updated: September 17, 2020

Attorney General William Barr on Wednesday defended his authority to overrule prosecutorial decisions made by career prosecutors at the Justice Department (DOJ), while describing some of those lawyers as “headhunters” who are too consumed with taking down high-profile targets.

“The notion that line prosecutors should make the final decisions within the Department of Justice is completely wrong and it is antithetical to the basic values underlying our system,” Barr said, according to prepared remarks for a speech delivered at Hillsdale College’s annual Constitution Day Celebration on Wednesday night.

“Name one successful organization or institution where the lowest level employees’ decisions are deemed sacrosanct. There aren’t any,” he added.

Barr has been criticized for decisions to intervene in politically sensitive high-profile cases involving associates of President Donald Trump, such as former political adviser Roger Stone and former national security adviser Michael Flynn, with critics accusing him of acting as the president’s personal attorney and politicizing the DOJ. Barr defended his decisions to intervene in those cases as his responsibility to uphold the rule of law and to apply a consistent standard of justice across the board.

“This has been going on for decades, this strange idea that political officials interfere in investigations or in cases,” the attorney general said. “Under the law, all prosecutorial power is vested in the attorney general. And these people are agents of the attorney general. As I say to FBI agents, ‘Whose agent do you think you are?’ Now, I don’t say this in a pompous way, but that is the chain of authority and legitimacy in the Department of Justice.”

The department’s top law enforcement official also delivered a rebuke toward some federal prosecutors who he says are too invested in prosecuting, in particular prominent public figures, rather than serving justice to the people.

“We are the Department of Justice, not the Department of Prosecution,” he said in his prepared remarks. “The Justice Department has sometimes acted more like a trade association for federal prosecutors than the administrator of a fair system of justice based on clear and sensible legal rules. In case after case, we have advanced and defended hyper-aggressive extensions of the criminal law. This is wrong and we must stop doing it.”

Thus, it is important, he said, that there are layers of supervision to evaluate the conduct of individual prosecutors in order to ensure that the “fair-handed administration of justice” is being delivered.

“Individual prosecutors can sometimes become headhunters, consumed with taking down their target. Subjecting their decisions to review by detached supervisors ensures the involvement of dispassionate decision-makers in the process,” the attorney general said.

He said that federal prosecutors should be “aggressive and tenacious in their pursuit of justice” but should also “ensure that justice is ultimately administered dispassionately.”

Barr did not mention any particular events or cases in his speech but was likely responding to the onslaught of criticism he has been receiving for the Flynn and Stone cases, where career prosecutors withdrew from the cases after the attorney general stepped in.

In the Flynn case, the DOJ said it was dropping the case after it determined that the FBI had no “justifiably predicated investigation” when bureau agents went to interview Flynn at the White House in early 2017. Federal prosecutors then moved to dismiss the case, but the judge in the case, U.S. District Court Judge Emmett Sullivan, refused to accept the dismissal and has instead pushed for further proceedings while appointing an amicus curiae (friend of the court) to argue against the dismissal. The case is now scheduled for a hearing later this month after going through several decisions in the appeals court.

Meanwhile, in the Stone case, Barr intervened to ask for a lighter sentence, without specifying a sentence, after four career prosecutors handling the matter recommended seven to nine years’ imprisonment for the 67-year-old, who was convicted of lying to and obstructing Congress and witness tampering.

The DOJ later called the recommendation “excessive and unwarranted” and filed a revised sentencing memorandum. The judge in the case eventually sentenced Stone to 40 months in prison. In July, right before Stone was to surrender to prison, the president commuted his sentence.

“It is important for prosecutors at the Department of Justice to understand that their mission—above all others—is to do justice. That means following the letter of the law, and the spirit of fairness,” Barr said. “Sometimes that will mean investing months or years in an investigation and then concluding it without criminal charges. Other times it will mean aggressively prosecuting a person through trial and then recommending a lenient sentence, perhaps even one with no incarceration.”

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