Robert Jackson must be rolling over in his grave. The travesty of Attorney General William Barr’s intervention in Roger Stone’s case should scare each and every American. The independence of the prosecutor — so fundamental to our conception of the rule of law — is balanced on a knife’s edge. Long ago, Jackson warned us about what it might be like to fall off.
In 1940, Attorney General Robert Jackson (who would later become a Supreme Court justice and the chief counsel for the prosecution of Nazi war criminals at the Nuremberg international military tribunal) gave an address in Washington at the Second Annual Conference of United States Attorneys. Jackson warned about misusing the awesome power of the federal prosecutor. What he said rings especially true today:
“One of the greatest difficulties of the position of prosecutor is that he must pick his cases because no prosecutor can even investigate all of the cases in which he receives complaints. … If the prosecutor is obliged to choose his cases, it follows that he can choose his defendants. … It is in this realm — in which the prosecutor picks some person whom he dislikes and desires to embarrass … and then looks for an offense, that the greatest danger of abuse of prosecuting power lies.”
Awe-inspiring power of prosecutors
Or, as Jackson might have added, if the prosecutor picks some friend to protect, the abuse is just as great. In either case, the prosecutor has an awe-inspiring power — the power to pick and choose his cases. If he chooses them with justice, society benefits. When he chooses them for political ends, society suffers.
As the Supreme Court said long ago about federal investigatory and prosecutorial powers: Government lawyers are representatives “not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.”
To that end, we try to find ways to constrain the exercise of a prosecutor’s discretion and guide it to a just result. There are Principles of Federal Prosecution that tell a prosecutor when to bring a case (and when not to). They guide the use of the criminal justice system to administer justice fairly and ensure that scarce federal resources are used appropriately.
Likewise, there are sentencing guidelines that set a framework for sentencing the convicted to jail — guidelines that apply in all federal cases as a baseline description of the heartland of criminal conduct. The goal of the guidelines is that like cases be treated alike and that nobody be treated with favor or disfavor. We hope (and expect) that a convicted drug distributor in Minneapolis gets roughly the same sentence as one in Los Angeles.
That is why Barr’s intervention is so disturbing and disruptive of behavioral norms. The four career prosecutors who filed a sentencing memorandum in the case of Trump ally Roger Stone followed the sentencing guidelines. Their recommendation, based on the guidelines, was for a sentence of seven to nine years in prison. It was almost identical to the recommendation from the probation office (which independently advises the judge) and would have been virtually the same for any similarly situated convicted defendant.
Barr is destroying boundaries
When the attorney general of the United States — our chief law enforcement officer — intervenes in a case not as a matter of policy but at the direction of the president, our limits on prosecutorial abuse fall away. When the attorney general does so to toss out a guideline sentencing recommendation, he is destroying the boundaries of prosecutorial behavior in a way that threatens to change our conception of justice. It makes clear that, for this president at least, the role of the Department of Justice is to protect his friends and punish his enemies.
Trump’s belief in this is not new. He has complained in the past that the department was prosecuting his allies (for example, the two Republican members of the House who have since been convicted and resigned) and that his enemies (like Hillary Clinton) have not been prosecuted. What is new is that Barr (unlike even his immediate predecessor, Attorney General Jeff Sessions) is listening to him.
Eleven years ago, Attorney General Eric Holder explained why there needs to be a wall preventing the politicization of the prosecutorial function. Echoing every attorney general who had gone before him, he reminded his prosecutors that decisions to prosecute (or not prosecute) should be “free from either the reality or the appearance of improper influence. Decisions to initiate investigations and enforcement actions are frequently discretionary. That discretion must be exercised to the extent humanly possible without regard to partisanship or the social, political, or interest group position of either the individuals involved in the particular cases or those who may seek to intervene against them or on their behalf.”
With his action Tuesday, Attorney General Barr has overthrown that expectation. History will not be kind to him. He will be remembered, if at all, for the destruction of important protections against prosecutorial abuse.
Paul Rosenzweig, a senior fellow in the National Security and Cyber Security Program at the R Street Institute, was senior counsel to Kenneth Starr in the Whitewater investigation and a deputy assistant secretary of Homeland Security in the George W. Bush administration. Follow him on Twitter: @RosenzweigP