Transcript of William P. Barr on The Constitution and the Rule of Law

And there was a conversation between an authority in Michigan and our general counsel, and he said, the general counsel, Bob Norton, he said, you know, there would need to be a law, right? Just what you like and don’t like, that’s not what it’s about. What’s the law?

And the law does say, it’s not really a law, by the way, the governor of Michigan with her staff, and I don’t know how you guys work, but I can talk to about 10 or 12 people a day, meaningfully, so it’s got to be she and 10 or 12 people wrote a thousand pages of rules. In Michigan, there was a time, it’s eased up now, you could buy a garden hoe, that was legal, but it was illegal to buy seeds, and so all the stores that sell the hoes and the seeds, they roped off the seed part, which, by the way, served to concentrate people in the store. Genius.

To you many great old friends of the college, I want to thank you for being here, and I want to register in public that I’m sick to death of being told that my daughter, Kathleen O’Toole, is more capable than I. I’ve known her for a long time, and yet she is great with child, and I am going to ruin her child. I’m going to be the worst grandfather in history. Public notice served.

On the Rule of Law

The rule of law is a concept that is delicate and essential. It is delicate because it requires an act of obedience from everyone, including especially people who are good at power. It’s something to which we must bow.

We must not think of our station, our strength, our wealth. We must think of the law. Law is very complicated.

It’s essential because justice depends on it. Without it, justice is nothing but the interest of the powerful.

Without it, we will have gone the way that Thrasymachus proposed in Plato’s Republic in book one. Justice is just what the powerful say it is. We worry about justice today because look at the energy that’s put on the left into the reform of the electoral system to adjust the results so that they will always go their way.

The rules of the game, which are old, older by the way. Ours is the longest surviving written Constitution, and although we’re a relatively new country relative to many, we are also the oldest country on Earth. Indeed, the oldest country in the history of Earth.

And those rules that have kept us together and kept us free for so long, they mean nothing now. How would we get that back? What kind of people would be necessary to give it back? We have an example tonight.

Introduction of Attorney General William P. Barr

Our speaker tonight is practiced and skilled in his trade, one of the most. He’s already been Attorney General once before. He’s done, I asked him about his career. He liked being general counsel for a big corporation, and I didn’t say it, but I’ll say it to him now. I have my first general counsel at Hillsdale College now, and those guys are unruly. He must have had a lot of fun.

He went to Columbia, and he went to law school at George Washington. He’s a native of New York. He’s been married for 47 years. I’ve been married for 73 years, although my wife is only 32. Those are qualifications. What are the qualities? I’m just going to cite two by reading something he wrote, two things he wrote.

They’re very beautiful, by the way. At Notre Dame, October 2019, the founding generation were Christians. They believed that the Judeo-Christian moral system corresponds to the true nature of man.

Do you see what kind of claim that is, by the way? Revelation and reason tell us the same thing, he’s saying. Those moral precepts start with the two great commandments, to love God with your whole heart, soul, and mind, and to love thy neighbor as thyself. But they also include the guidance of natural law, a real transcendent moral order.

The eternal law is impressed upon and reflected in all created things, from the nature of things. We can, through reason, experience, discern standards of right and wrong that exist independently of the human will.

Now, I will tell you, those three paragraphs encapsulate what I’ve been studying all my life, and do you see what they give you? Because, you know, our speaker tonight is very good at power. He’s had a lot of it. He’s not afraid to use it, and yet he thinks that even while he uses it, he must obey, and that’s a commandment from God.

The second thing is about honor. I will tell you that I thrilled when I read this. In May 2019, he was interviewed by Jan Crawford of CBS News, and I just was stunned when I heard it, because here’s what she’s doing and what he does. She says, when you came into this job, Attorney General in the Trump administration, you were U.S. Attorney in Connecticut. You had a good reputation on the right and on the left. You were a man with a good reputation. You are not someone who, as you know, accused of protecting the president, enabling the president, lying to Congress. Did you expect that?

Now, that part, I think, by the way, that’s a woman appealing to a man that she thought was one of her kind, and you can’t be what you seem to be. He replies, Attorney General Barr, well, in a way, I did expect it. You did? Yeah, because I realized we live in a crazy, hyper partisan period of time, and I knew that it would only be a matter of time if I was behaving responsibly and calling them as I see them, that I would be attacked, because nowadays people don’t care about the merits and the substance.

That point, by the way, is like the voice of doom talking. To live in a world where people don’t care about that is to live in a world of enemies. To agree with that, he says, is antithetical to the way the department runs, and any attorney general is going to end up losing a lot of political capital if he does right.

One of the reasons I ultimately was persuaded that I should take it on is because I think, at my stage of life, it really doesn’t make any difference. You are at the end of career, she says. I’m at the end of my career.

Does it mean, she says, by the way, it’s very, the things she says are very sympathetic, right? Also kind of unbelieving. Does it mean that the reputation you have worked your whole life through is sacrificed? And he says, yeah, but everyone dies, and I am not, you know, I don’t believe in the Homeric idea that immortality comes by having odes sung about you over the centuries.

Now, that last thing, that’s paradoxical, because like Achilles chose early death and honor over life with his family, but we learned in the Socratic writings that that’s not the highest kind of honor.

The highest kind of honor is to do right till the last day and prepare to meet your maker. If we’re to get back the rule of law, it will be people like Attorney General William Barr who get it back for us. Thank you.

Attorney General William P. Barr’s Remarks

[ATTORNEY GENERAL WILLIAM P. BARR:] Thank you very much. I’m very honored to have been invited to speak at this dinner, and I really appreciate your comments. Larry, great to get to know you.

I’ve been reading you over the years, and it’s a real delight to have spent the evening with you, and I’m very pleased to be able to speak to you at this Hillsdale College celebration of our magnificent Constitution, and I’m a great admirer of Hillsdale. As I was telling Larry, I don’t get to make many speeches like this. I’m usually talking about crime rates and that kind of thing, but I wanted to speak at Hillsdale because it’s one of the few, maybe a handful of institutions of higher learning where it is actually worthwhile spending the money to get an education at, and I mean that sincerely.

The Constitution and the Rule of Law

[WILLIAM P. BARR:]

Sadly, many colleges these days don’t even teach the Constitution, much less celebrate it. You know, one out of every four Americans don’t know who we fought the Revolution against. It’s pretty pathetic, and that number is increasing steadily as our educational institutions fail us.

But at Hillsdale, you recognize that the principles of the founding are as relevant today and as important today as ever, and vital indeed today, to the survival of our great experiment here, freedom. And I appreciate your observance and all you do for civic education, an education period in this country.

Now, when many people think of the virtues of our Constitution, they first mention the Bill of Rights, of course. That’s the talking point of the Constitution. There’s a Bill of Rights, you have rights. And I guess that makes sense.

The great guarantees of the Bill of Rights, freedom of speech, freedom of religion, especially the right to keep and bear arms, just to name a few, are critical safeguards to our liberty. But as President Reagan used to remind people, the Soviet Union had a Constitution and even included some of these lofty-sounding rights. Ultimately, however, those promises are just empty words, because there was no rule of law in that society to enforce them.

The Rule of Law and Separation of Powers

The rule of law is the linchpin of American freedom, and the critical guarantee of the rule of law comes from the Constitution’s structure of separation of powers. Now, there are many elements of the rule of law, and there are many safeguards built into our great Constitution, but tonight I want to talk about the separation of powers.

The framers recognized that by dividing the legislative, executive, and judicial powers, each significant but each limited, they would minimize the risk of any form of tyranny. That is the real genius of the Constitution, and it ultimately is more important to securing liberty than the Bill of Rights. After all, the Bill of Rights is a set of amendments to the original Constitution, and I know you all know that the framers did not think it was needed. They didn’t need to include into the Constitution an express enumeration of rights.

Today, I want to talk about the power that the Constitution allocates to the executive branch, particularly in the area of criminal justice. The Supreme Court has correctly held that under Article II of the Constitution, the executive has virtually unchecked discretion to decide whether to prosecute individuals for suspected crimes. We all know that as the executive vested with the responsibility for seeing that the laws are faithfully executed, the power to execute and enforce law is an executive function altogether, and that means discretion is vested in the executive to determine when to exercise the prosecutorial power.

The only significant limitation on that discretion comes from other provisions of the Constitution. For example, the United States attorney could not decide to prosecute only people of a particular race or a particular religion, but aside from that limitation, which thankfully remains only a hypothetical in our country, the executive has broad discretion to decide whether to bring criminal prosecutions in particular cases. The key question then is how the executive should exercise its prosecutorial discretion.

Justice Jackson’s Wisdom on Prosecutorial Power

Eighty years ago this spring, one of my predecessors in this job, then Attorney General Robert Jackson, gave a famous speech to the Conference of United States Attorneys in which he described the proper role and qualities of federal prosecutors. Justice Jackson was one of only a handful, I think three maybe, attorneys general who ultimately ended up as a justice on the Supreme Court. Much has changed in the eight decades since Justice Jackson’s remarks, but he was a man of uncommon wisdom and it is appropriate to consider his views today and how they apply in our modern era.

Federal prosecutors possess tremendous power, power that is necessary to enforce our laws and punish wrongdoing, but power that, like all power, any other power, carries inherent potential for abuse. Justice Jackson recognized this and as he put it:

The prosecutor has more control over the life, liberty, and reputation than any other person in America.

Prosecutors have the power to investigate people, to interview their friends, and they can do so on the basis of mere suspicion of wrongdoing. People facing federal investigations incur ruinous legal costs and often see their lives reduced to rubble before a charge is even filed. Justice Jackson was not exaggerating when he said:

While the prosecutor at his best is one of the most beneficent forces in our society, when he acts from malice or other base motives, he is one of the worst.

Think about the power of a prosecutor. Doesn’t have to answer to anything outside the office of the prosecutor and he can destroy people’s lives just by bringing an investigation, destroy their reputation, destroy their livelihood in today’s world, and it’s not just individuals.

Think of the corporations. Anderson, the accounting firm, thousands and thousands of jobs done away with in an instant because of a prosecutorial decision and a decision that was largely discretionary because individuals are initially responsible for the crime and the question of whether or not you’re going to impute that to the corporation and take down the corporation as well is largely a discretionary call by prosecutors.

And in today’s world, going after a corporation or a white-collar defendant is like shooting fish in a barrel. There is no contest. You threaten a company with criminal liability and all the collateral effects that that has, no corporation is going to go to trial and fight that and the prosecutors know that. It’s just a question of how much the check is going to be and that’s all within the control of a prosecutor.

The power, as Justice Jackson said, to strike at citizens, the power that the prosecutor has is not merely, it can strike at citizens not with just the individual strength but with all the force of the government itself and that has to be carefully calibrated and carefully supervised because left unchecked, it has the power to inflict far more harm than it prevents.

Political Accountability as a Check on Power

The most basic check on prosecutorial power is political accountability. It is counterintuitive to say that as we rightly strive to maintain an apolitical system of criminal justice, but political accountability, politics is what ultimately ensures our system does its work fairly and with proper recognition of the many interests and values at stake. Government power completely divorced from political accountability is tyranny.

Now Justice Jackson understood this and as he explained, presidential appointment and Senate confirmation of the United States attorneys and the senior Department of Justice officials is what legitimizes their exercises of sovereign power. You are required to win an expression of confidence in your character by both the legislative and the executive branches of the government before assuming the responsibilities of a federal prosecutor.

Yet in the decades since Justice Jackson’s remarks, it’s become a commonplace to argue that prosecutorial decisions are legitimate only when they are made by the lowest level line prosecutors, the career prosecutors handling any given case. Ironically, some of those same critics see no problem in campaigning for highly political elected district attorneys to remake state and local prosecutorial offices in their preferred progressive image, which often involves overriding the considered judgment of the career prosecutors and police officers.

But aside from that hypocrisy, 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 that undergirds our entire system. The Justice Department is not a praetorian guard that watches over a society impervious to the ebbs and flows of politics. It is an agency within the executive branch of a democratic republic, a form of government where the power of the state is ultimately reposed in the people acting through their elected president and their elected representatives.

Democratic Legitimacy of Appointed Officials

The men and women who have ultimate authority in the Justice Department are thus the ones on whom our elected officials have conferred that responsibility. Presidential appointment and Senate confirmation, that blessing by the two political branches of government gives these officials democratic legitimacy that career officials do not possess.

The same process that produces these officials also holds them accountable. The elected president can fire senior Department of Justice officials at will, and the elected Congress can summon them to explain their decisions to the people’s representatives and to the public. And because these officials have the imprimatur of both the president and Congress, they also have the stature to resist these political pressures when necessary, and they can take the heat for what the Department of Justice does or doesn’t do.

Line prosecutors, by contrast, are generally part of the permanent bureaucracy. They do not have the political legitimacy to be the public face for 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.

Moreover, because these officials are installed by the democratic process, that is, the appointees, they are the most equipped to make the judgment calls concerning how we should wield our prosecutorial power. As Justice Scalia observed, and perhaps his most admired judicial opinion, his dissent in Morrison v. Olson:

Almost all investigative and prosecutorial decisions, including the ultimate decision whether, after a technical violation of the law has been found, prosecution is warranted, involve the balancing of innumerable legal and practical considerations.

And those considerations do need to be balanced. In each and every case, as Justice Scalia also pointed out, it is nice to say, fiat justitia ruat caelum, let justice be done though the heavens may fall, but it doesn’t comport with reality. It would do far more harm than good to abandon all perspective and proportion in an attempt to ensure that every technical violation of criminal law by every person is tracked down, investigated, and prosecuted to the nth degree.

The Need for Supervision and Judgment

Our system works best when leavened by judgment, discretion, proportionality, and consideration of alternative sanctions, all the things that supervisors provide. Cases must be supervised by someone who does not have a narrow focus, but who is broad-gauged and pursuing a general agenda. And that person need not be a prosecutor, but someone who can balance the importance of vigorous prosecution with other competing values.

In short, the Attorney General, senior DOJ officials, and U.S. attorneys are indeed political, but they are political in a good and necessary sense. Indeed, aside from the importance of not fully decoupling law enforcement from the constraining and moderating forces of politics, devolving all authority down to the most junior officials does not even make sense as a matter of basic management. Name one successful organization or institution where the lowest-level employees’ decisions are deemed sacrosanct. They aren’t. There aren’t any. Letting the most junior members set the agenda might be a good philosophy for a Montessori preschool, but it is no way to run a federal agency.

Good leaders at the Department of Justice, as any organizations, need to trust and support their subordinates, but that does not mean blindly deferring to whatever those subordinates want to do. One of the more annoying things that I hear and face, and you know this has been going on for decades, this strange idea that political officials interfere in investigations or in cases. And I’m saying what do you mean by interfere? Under the law, all prosecutorial power is vested in the Attorney General, and these people are agents of the Attorney General.

And 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. And I say, well what exactly am I interfering with? And when you boil it right down, it’s the will of the most junior member of the organization who has some idea that he wants to do something. And what makes that sacrosanct? What makes the judgment of the next layer up or the next layer up or the next layer up? Each layer, by the way, fanning out and having broader and broader experience, much more experience and a broader portfolio and a broader perspective.

What makes the line attorney who’s handling a particular case, their judgment so sacrosanct? Now the idea is, I guess, well they’re not political and therefore their judgments won’t be political. But from my experience in the department, in two different eras, career employees are not apolitical necessarily. Some are. Some are very political and can check their politics at the door, and others can’t and can be partisan. But they’re not apolitical necessarily. They’re human beings like everybody else and they’re very usually less experienced individuals than their supervisors.

So this is what presidents, the Congress, and the public expect. When something goes wrong in the Department of Justice, the buck has to stop somewhere and that’s at the top. The statute I referenced was 28 U.S.C. Section 509, which couldn’t be plainer. All functions of other offices of the Department of Justice and all functions of agencies and employees of the Department of Justice are vested in the Attorney General.

And because the Attorney General is ultimately politically accountable for every decision that the department makes, I and my predecessors have had an obligation to ensure that we make the correct decision. The Attorney General, the Assistant Attorneys General, the U.S. attorneys are not figureheads. We’re supervisors. Our job is to supervise and anything less is an abdication.

Active engagement in our cases by senior officials is also essential to the rule of law. The essence of the rule of law is that whatever rule you apply in one case must be the same rule you would apply in a similar case. Treating each person equally before the law includes how the department enforces the law. We should not prosecute someone for wire fraud in Manhattan using a legal theory we would not equally pursue in Madison or in Montgomery.

# The Constitution and the Rule of Law

Uniformity in Law Enforcement

[WILLIAM P. BARR:] Or allow prosecutors in one division to bring charges using a theory that a group of prosecutors in another division down the hall would not deploy against someone who’s engaged in indistinguishable conduct. We must strive for consistency and that is yet another reason why centralized senior leadership exists, to harmonize the disparate views of our many prosecutors in a consistent policy for the department.

I was being interviewed by a member of the press, it was a radio interview, and I got one of these questions like, “Well, you know, why are you interfering in some case over here or some case over there?” And I said, “Well why do you think we have one Attorney General? We have 93 districts, 50 states, 93 districts, why don’t you think each U.S. Attorney should be a law unto themselves? Why do you think we have one Attorney General? For uniformity of law, for having consistency in the application of law, for having someone who has the entire perspective of the playing field.”

And the cameramen were all nodding their head, this made sense, this made sense. Jackson said, “We must proceed in all districts with that uniformity of policy which is necessary to the prestige of federal law,” but I think there’s more involved than prestige. Uniformity is what protects us.

At the end of the day, our system is really the crystallization of the golden rule in a political system, and that’s ultimately what protects us, which is, I’m not willing to do to somebody else what I’m not willing to have done to me. That is ultimately the foundation of our freedom.

So, we see that in the legislative branch, think about it constitutionally here since I’m talking about the Constitution. The legislature in the United States, our national federal legislature, can’t make one law that applies to New York and another to California. Now, there are a lot of reasons for that, think about it, because then you could have little factions in the country buying favor and building a majority to adopt rules that don’t apply to everyone the same. But it’s also because you can’t have the rest of the country say, “Okay, we’re going to go to war, and by the way, the draft law only applies to New York.”

The Constitution requires a uniformity across the nation, so that’s legislative. When you make a rule legislatively, it has to apply to everybody, but it also applies in the enforcement of law. The same uniformity is required, because that is the ultimate guarantor of freedom.

The Spirit of Fair Play

All the supervision in the world won’t be enough, though, without a strong culture across the Department of Fairness and Commitment to even-handed justice. So that’s what Justice Jackson described as “the spirit of fair play and decency that should animate the federal prosecutor.” Sounds quaint today, doesn’t it? In his memorable turn of phrase, “even when the government technically loses its case, it has really won, if justice has been done.”

We want our prosecutors to be aggressive and tenacious in their pursuit of justice, but we also want to ensure that justice is ultimately administered dispassionately. So one thing I’ll say is that the job of the prosecutor is to try the case and attempt to achieve a conviction of guilt, but that’s when the job of the prosecutor is over. In some cases, we may express our views as to what the sentence should be, but the sentencing belongs to the judge, the judicial function, and after the prosecutor wins the case, we like that competitiveness, we like that spirit and aggressiveness, but once the case is won, passions must cool, and justice in the sentencing phase has to be fair, and that’s why the sentence is given by the neutral judge.

The Risk of Prosecutorial Overreach

Now, we’re all human, and like any person, a prosecutor can become overly invested in a particular goal. Prosecutors who devote months and years of their lives to investigating a particular target may become deeply invested in their case and assured of the rightness of their cause. When a prosecution becomes “my prosecution,” particularly if the investigation is highly public or has been acrimonious or if the prosecutor is confident early on that the target has committed a serious crime, there’s always a temptation to will a prosecution, a charge, into existence, even when the facts, the law, or the fair-handed administration of justice do not support bringing the charge.

This risk is inevitable and cannot be avoided simply by hiring as prosecutors only moral people with righteous motivations. I am reminded of a passage by C.S. Lewis:

It may be better to live under robber barons than under omnipotent moral busybodies. The robber baron’s cruelty may sometimes sleep. His cupidity may at some point be satiated, but those who torment us for our own good will torment us without end for they do so with the approval of their own conscience. They may be more likely to go to heaven, I don’t know, but at the same time, likelier to make hell on earth.

There’s yet another reason for having layers of supervision. Individual prosecutors can sometimes become headhunters. It’s all too often. They’re consumed with taking down their target, subjecting their decisions to review by detached supervisors, ensure the involvement of dispassionate decision-makers.

The Problem of Independent Counsels

This was, of course, the central problem with the independent counsel statute that Justice Scalia criticized in Morrison versus Olson. Creating an unaccountable headhunter was not some unfortunate byproduct of that statute, it was the stated purpose of the statute. That was what Justice Scalia meant by his famous line, “this wolf comes as a wolf.”

As he went on to explain, quote, “how frightening it must be to have your own independent counsel and staff appointed with nothing else to do but to investigate you until investigation is no longer worthwhile. With whether it is worthwhile not depending upon what such judgments usually hinge on, competing responsibilities, and to have that counsel and staff decide with no basis for comparison whether what you have done is bad enough, willful enough, and provable enough to warrant an indictment. How admirable the constitutional system that provides the means to avoid such a distortion, and how unfortunate the judicial decision that has permitted it.”

Now, that was a problem that took care of itself. It was a statute that Democrats applauded until it applied to Bill Clinton, and then they did what we did away with it in H.W. Bush’s administration, took the heat, castigated by all the media for killing the independent counsel statute, and then during the transition, Bernie Nussbaum, who lasted about two seconds as White House counsel, fancy New York lawyer, came down, and he was part of the transition, and he came in, and he said, “Do you have any advice?” This was while I was in my last days as Attorney General, and I said, “Well, I think you should allow the independent counsel to die its natural death here. We took the heat for it. We did what had to be done. Don’t resuscitate it. As a Republican, nothing would please me more, but as an American, it’s a bad statute.”

And he said, “Well, we are committed to the most moral and ethical administration in history, and we are going to reenact it.” So they did, and the rest is history. By the way, if you want a little kick, go to C-SPAN. I think they took my name off of it, but if you put in “civility special, independent counsel statute, Nadler,” you’ll see a hearing from like 1995 or 6, or whenever the Whitewater thing was going on with Ben Civility Democrat, Bill Barr Republican, Nadler leading the committee about how terrible the independent counsel statute was, and how terrible Ken Starr was. It’s a great watch because all the arguments that were made here today, nowadays, were laid out. Of course, the role of the players was, he said, “Mr. Barr, I admire you. You are very consistent on this question.”

The Danger of Prosecutorial Power

Now, I said headhunters, and that’s because, as Jackson said, “if the prosecutor is obliged to choose his cases, it follows that he can choose his defendants. Therein is the most dangerous power of the prosecutor, that he will pick people that he thinks he should get, rather than pick the cases that need to be prosecuted.”

Any erosion in prosecutorial detachment is extraordinarily perilous, for, as he said, “it is in this realm, in which the prosecutor picks some person whom he dislikes or desires to embarrass, or selects some group of unpopular persons, and then looks for an offense, that the greatest danger of abuse of prosecuting power lies. It is here that law enforcement becomes personal, and the real crime becomes that of being unpopular with the predominant or governing group, being attached to the wrong political views, or being personally obnoxious to, or in any way, to the prosecutor himself.” And that’s what we frequently see.

I’d like to be able to stand here and say, we don’t see headhunting in the Department of Justice, and that would not be truthful. I see it every day, and it’s a temptation, that the power of prosecution is a heady power, and it is a temptation sometimes to go after people, rather than crimes. And we see that every night.

You know this country is in serious problems, with all the problems, real problems, we face in international affairs and domestically, when most of our news coverage, or what passes for news coverage, are bloviating talking heads, discussing whether some action in Washington, some action taken by an official, constitutes some esoteric crime. And looking through statute books to see, could we say that this is a crime? Because disagreement no longer is enough. Political disagreement and political debate.

Now you have to call your adversary a criminal, and instead of beating them politically, you try to put them in jail. So we’re becoming sort of like an Eastern European country, where if you’re not in power, you’re in jail, or you’re a member of the press.

The Need for Clarity in Law

So, now one of the areas that I think there’s a problem is the way we interpret statutes these days, and we have to recalibrate that if we’re ever going to restore the rule of law. Clarity in the law is indispensable to the rule of law, and if a law is malleable, then it can be applied differently in different cases, and that is the breakdown of law.

Now one of the most irritating developments over the last 50, 60 years is equity driving law out of the marketplace. If you go and read Supreme Court decisions, the Supreme Court thinks it’s being oh-so, and this has been going on for decades. Instead of articulating a law, a rule, they say it’s the totality of circumstances, and it’s equity. What if, you know, what was the conscience of the fifth vote on the Supreme Court? They can’t articulate the rule, but it’s that very discipline of being able to universalize the principle that you’re applying in a case that ensures the rule of law and ensures that the person is being treated fairly, and it is that process of universalizing it that says I’m only going to apply to this person what I am willing to do to every other similarly situated person and be able to articulate the rule, and we’ve completely lost that in our law.

That’s why lawyers are so infuriating beyond their normal irritating nature, which is they can’t tell the client what the law is. You know, “Well, it could go this way, it could go that way,” and that’s because their law has broken down, and it’s broken down because the justices don’t feel they have to go through that discipline anymore.

The nature of judicial power is being debased, and we don’t… Equity has its uses and its place, but it can’t be constitutional law, and these are some of the points that are similar to those made by Justice Scalia in his article about the rule of law being the law of rules.

Reforming the Department of Justice

Now in recent years, the Department of Justice has sometimes acted like a trade association for prosecutors, more like that than the administrator of a fair system of justice based on clear and sensible rules. In case after case, we’ve advanced and defended hyper-aggressive extensions of the criminal law. This is wrong, and we have to stop doing it.

Now, I couldn’t believe it. You know, I’d get in, and I’d see some statute, and people would say, “Well, how are we going to interpret this statute? This court over here said this should be limited to such-and-such. Are we going to acquiesce in that and adopt that as our interpretation?” And normally the answer you would get in the Department of Justice is, “Well, that sort of ties us down. Of course, that’s the whole point of the law. That sort of ties us down. We want our prosecutors to have the broadest possible discretion. So we can’t buy into that. Let’s leave it loosey-goosey.”

And I said, “Well, no, I mean, we have to say what the law is. And that decision was a good interpretation of the law, and it should be adopted. The fact that it hems us in, and we can’t just use this law as a utility knife, is a good thing.”

But that’s not the perspective generally and institutionally recently in the Department of Justice. We should want a fair system with clear rules that people can understand. It does not serve the ends of justice to advocate for fuzzy and manipulable criminal prohibitions and maximize the options of the prosecutors.

Preventing that sort of pro-prosecutor uncertainty is what the ancient rule of lenity is all about. I’m sure you know what that is, which is if there’s vagueness in a law, you interpret it in the most lenient way possible from the standpoint of the defendant. And that rule should likewise inform what we do at the Department of Justice.

The Constitution and the Rule of Law

When we think about the substance of the criminal law, advocating for clear and defined prohibitions will sometimes mean that we cannot bring charges against someone whom we believed is engaged in bad conduct. But that is what it means to be a government of laws and not men. We cannot let our desire to get bad people turn into the functional equivalent of the mad emperor Caligula who inscribed criminal laws in tiny script atop a tall pillar where no one could read it.

To be clear, what I’m describing is not the Al Capone situation where you have someone who has committed multiple crimes and you decide to prosecute that person for only the clearest violation that carries a sufficient penalty. I am talking about taking vague statutory language and then applying it to a criminal target in a novel way that is at minimum hardly clear from the statutory text. This is inherently unfair because criminal prosecutions are backward-looking.

We charge people with crimes based on past conduct. If it was unknown or unclear that the conduct was illegal when the person engaged in it, that raises real questions about whether it is fair to prosecute the person criminally for it. Examples of the department defending these sorts of extreme positions are unfortunately numerous, as are the rejections of those arguments by the Supreme Court.

These include arguments as varied as the department’s insisting that a Philadelphia woman violated the Chemical Weapons Convention Implementation Act, implementing the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons. She did this by putting chemicals on her neighbor’s doorknob as part of an acrimonious love triangle involving the woman’s husband. The court unanimously rejected that argument in Bond v. United States, where they argued that a fisherman violated the anti-shredding provisions of the Sarbanes-Oxley law when he threw undersized grouper over the side of his boat, which the Supreme Court rejected in Yates v. United States, or more recently, arguing that aides to the governor of New Jersey fraudulently obtained property from the government when they realigned the lanes on the George Washington Bridge to create a traffic jam, which the Supreme Court unanimously rejected in Kelly v. United States.

There are many other examples. In fact, it’s interesting when people say that the Trump administration is lawless, and I usually see them scratching my head saying, you know, we litigate all our stuff, we win a lot of it, we go through the process, what exactly is lawless about it? The fact is that the Obama administration had the worst record in the Supreme Court of any recent administration, losing cases, and our administration so far has been doing above average in terms of winning in the Supreme Court. So I wouldn’t say we were lawless, but again, the Obama administration had some of the people who were in Mueller’s office writing their briefs in the Supreme Court, so maybe that explains something.

Very aggressive positions, very sort of aggressive, and we’re going to prosecute these people and so forth, and then they’re not crowing so much after they get whooped in the Supreme Court. Anyway, taking a capacious approach to criminal law is not only unfair to the criminal and bad for the department, it’s corrosive of our political system. If criminal statutes are endlessly manipulable, then everything becomes a potential crime.

The Criminalization of Politics

Rather than watch policy experts debate the merits and demerits of a particular policy choice, we are treated to pundits speculating about whether things can be prosecuted. This criminalization of politics is not healthy. The criminal law is supposed to be reserved for the most egregious misconduct, conduct so bad that our society has decided it requires serious punishment, up to and including being locked away.

These tools are not built to resolve political disputes, and it would be a bad development for us to go the way of these third world countries where political parties routinely prosecute their opponents for various ill-defined crimes against the state. This is not the stuff of a mature democracy. We abet this culture of criminalization when we are not disciplined about what charges we will bring, what legal theories we will adopt.

Rather than root out true crimes while leaving ethically dubious conduct to the voters, our prosecutors have all too often inserted themselves into the political process based on the flimsiest legal theories. We have seen this time and time again with prosecutors bringing ill-conceived charges against prominent political figures or launching debilitating investigations that thrust the Department of Justice into the middle of the political process and preempt the ability of the people to decide. This criminalization of politics will only worsen until we change the culture of concocting new legal theories to criminalize all manner of questionable conduct.

Smart, ambitious lawyers have sought to amass glory by prosecuting prominent public figures since the Roman Republic. It is utterly unsurprising that prosecutors continue to do so today to the extent the Justice Department leaders will permit it. And as long as I’m Attorney General, we’re not going to permit it.

In short, it is important for prosecutors at the Department of Justice to understand that their mission, above all others, is to do justice. And that means following the letter of the law and the spirit of fairness. Sometimes that will mean investing months or years in an investigation and then concluding it is without criminal charges.

Our job is to be just as dogged in preventing injustice as we are in pursuing wrongdoing. On this score, as in many, Justice Jackson said it best. And I’ll close with his words.

The qualities of a good prosecutor are as elusive and as impossible to define as those which mark a gentleman. And those who need to be told would not understand it anyway. A sensitiveness to fair play and sportsmanship is perhaps the best protection against the abuse of power.

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And the citizen’s safety lies in the prosecutor who tempers zeal with human kindness, who seeks truth and not victims, who serves the law and not factional purposes, and who, above all, approaches his task with humility.

Thank you. Thank you.

Q&A with Larry P. Arnn

[LARRY P. ARNN:] Thank you. Is this on? Yeah. Again, I’m sorry for those prepared remarks.

[WILLIAM P. BARR:] I like these things a lot better. So thank you, General. That was spectacular.

Also profound, I think. So I have the first question. I’ve got a few from the audience.

And the minute your duties require you to go home and rest, you may do so.

[WILLIAM P. BARR:] Of course. Even though he just said that he wouldn’t prosecute me just because he’s mad at me.

[LARRY P. ARNN:] So partly what you just said was a process of a transfer of authority from elected people to civil servants. Do you see that going on in other parts of the government?

[WILLIAM P. BARR:] Oh, you know, of course. But this is the game at the Department of Justice, you know, how it’s been used as a political football.

Basically, when the left controls the executive branch, then no one says anything about the supervision of the lawyers in the Department of Justice being by the political officials. But when the Republicans win, or conservatives are in charge of the Department of Justice, then all we hear day in and day out is that people, we should just stand back and let the career people run the Department of Justice. And, you know, don’t get me wrong.

I mean, a lot of my family are career people in the Department of Justice. I love the Department of Justice. I love the people in the Department of Justice.

But as I say, the legitimacy in our system comes from political supervision and political accountability.

[LARRY P. ARNN:] Should the Supreme Court have the exclusive power to interpret the Constitution?

[WILLIAM P. BARR:] Yes. So this is not my question, but I’ll sharpen it.

[LARRY P. ARNN:] So the President takes an oath to uphold…

[WILLIAM P. BARR:] Let me say that I think President Jackson was correct that each branch has, in the first instance, the responsibility to interpret the Constitution and what they think the Constitution means. And so if the President believes that he has the power to do something under the Constitution, he should be able to exercise that power. And if the court disagrees and orders him not to, then he’s lost the case.

[LARRY P. ARNN:] That’s what I thought. What’s your favorite song to play on the bagpipes?

[WILLIAM P. BARR:] I don’t know who asked. There are too many.

There are too many songs. It’s not songs, they’re called tunes. T-U-N-E-S.

Scotland the Brave. Well, that’s a very common one. That’s the one that you see on the video playing Scotland the Brave.

But I miss playing the bagpipes. When I was Attorney General last time, Scalia called the chambers and said to my assistant, do you think the Attorney General would like to take a quick walk with me around the mall? And I said, ask Justice Scalia whether he realizes it’s a federal offense to threaten the life of a federal official. I say the same thing about playing the bagpipes these days.

People ask me to play the bagpipes. I say, you know, it’s an offense to threaten the life. You better have emergency vehicles standing by.

[LARRY P. ARNN:] I think a definition of a gentleman is somebody who knows how to play the bagpipes and does not.

[WILLIAM P. BARR:] No, I disagree with that. I played since I was eight years old and, you know, my parents being academicians and growing up on the Upper West Side in Bella Abzug’s district in New York.

We lived in Columbia University housing, which was great housing overlooking the Hudson River and stuff. But they want, you know, they said, Billy, it’s time that you learn an instrument, violin, piano. I said bagpipes.

[LARRY P. ARNN:] Somebody wonders if ballot harvesting is constitutional and also how do we go about in this day and age guaranteeing the propriety of our elections?

[WILLIAM P. BARR:] Well, I’m not, you know, I know because I’m Attorney General, I was once head of the Office of Legal Counsel, which is sort of a legal beagle office. I can’t off the top of my head give you authoritative answers on some of these questions. I will just say generally I’m very concerned.

Let me draw a distinction between what may pass muster under some recent case law of the Supreme Court and what really is in accord with the constitutional scheme and the basic principles. And sometimes you have to go back to basic principles to understand what some of the provisions of the Constitution should mean. So as I’ve said, you know, the whole idea of an election is to have a single expression of will by everybody at the same time based on the same information.

That’s what an election is, not an election. So we have election day and now we have an election season. And not only that, it’s a season that has like extra innings.

So it’s becoming absurd. Decisions made weeks apart are not, you know, the body politic making a sober decision about the state of affairs at one time.

So we’re losing the whole idea of what an election is.

And when people, you know, try to play games like, do you have any empirical evidence that, you know, mail-in ballots are, you know, common sense. We haven’t had it on the scale that’s being proposed now. So I don’t have empirical, other than the fact that we’ve always had voting fraud and there, you know, there always will be people who attempt to do that.

I don’t have empirical evidence that on this scale, you know, these problems were materialized. But what I say to people is, why do we vote today the way we do? Think about it. Why does this, why do people show up at one place where they have a list of people who are eligible to vote, you set, you show who you are, you go behind a curtain.

Why do you go behind a curtain? Secret ballot. No one else is allowed there. Why is that a rule? Coercion, undue influence.

Why a secret ballot? Many reasons. You can’t sell or buy votes easily if there’s a secret ballot. You don’t succumb as much to undue influence or pressure.

That is all blown away. The lessons of the English system before us and the American system and how the vote evolved and how we tried to perfect it and protect its integrity for all this time are just swept away by mail-in voting, where you don’t have an anonymity. Your name is connected to that vote.

And you open the floodgates to coercion. And so I don’t think harvesting should be permitted, personally. Some states have passed down under the Constitution, the states set the rules.

They’re permitting harvesting of ballots, but it’s a potential abuse.

[LARRY P. ARNN:] I go back to your main argument, and that is the authority of the Attorney General comes through the President from the people. And so do you sense a growing spirit of managing the people, managing how they vote, managing what they can do by the government?

[WILLIAM P. BARR:] Well, I think it raises the fundamental question, which is this, that our Constitution was meant for a discerning, informed, virtuous people.

And you have to raise the question of whether we still have that in our country, but we certainly have forces that are attempting to cultivate a dependent people. And it’s the same old game. What’s our bread and circuses today? It’s all distraction.

As Pascal said, it’s all about distracting people from anything that’s important and principle and what’s happening. That’s why so many people that don’t pay attention, they’re distracted. They’re distracted by all the stimulation of their senses that go on.

And that goes part and parcel with creating dependence. So you have more and more people that just don’t care. I saw today that most people don’t know what the Holocaust was about in the United States, some poll or something.

I couldn’t believe it. Now, I thought they taught Holocausts or concentration camps very well in school, because when I was giving a Memorial Day speech one year, I did some research. And most high school students, if you ask them, what do you know about World War II? Well, first, they don’t know who fought in World War II, who the United States was fighting.

But then they say what they know about World War II is about the concentration camps and that we use nuclear weapons against Japan. Those are the two things. I said, well, at least you learned about the concentration camps.

The Constitution and the Rule of Law: William P. Barr’s Lecture

[WILLIAM P. BARR:] Yes, the internment of the Japanese. Yeah, you should visit some high schools today.

If Mueller’s team destroyed information, who’s responsible and what consequences can there be? I think they’re talking about wiping phones.

Well, I don’t want to get into that particular thing. The appropriate people in the department are taking a look at that, and we’ll see where that goes.

Constitutional Considerations During COVID-19

[LARRY P. ARNN:] What are the constitutional hurdles for forbidding a church from meeting during COVID-19?

[WILLIAM P. BARR:] The rule right now, as articulated by the Supreme Court – some people might disagree with it in the sense that it doesn’t go far enough in protecting religion – but the current standard is that you can place restrictions on religion, the exercise of religion, as long as you don’t discriminate against religion, and apply the same restrictions on everybody else that is similarly situated.

So you can’t allow people to go to theaters and get together in commercial establishments or other kinds of activities, and then prohibit churches from doing it. Some of the states were going that far. So that’s the basic hurdle you have to get over now.

I know you’re from Michigan, and therefore you’re particularly sensitive to the caprice of governor’s regulations. I am very amused because the press gets all huffy and puffy about, “Bill Barr believes in strong executive power. He’s a fascist” or something like that.

And yet, they couldn’t be happier with governors exercising executive power. In many states, there are no statutes or the legislature’s bowed out of the picture, just letting the governors do what they want to do.

What I’ve said is, yes, executive power by its very nature does come and should fill the void right at the beginning of any crisis like this. And some crises like war, you do need a strong component of executive leadership. But once the emergency nature of it starts to abate, the legislature should give a little bit more guidance. Like, “You can do this for 30 days, and then come back to us. And if we don’t like what you’re doing, we’ll exercise a little more control over it.”

But there has been very little of that. And most of the governors do what bureaucrats always do, which is they act in ways that defy common sense. They treat free citizens as babies that can’t take responsibility for themselves and others.

I was saying all along, we have to give business people an opportunity. You tell them what the rules are – the masks, which rule of masks do you have this month? Tell the business people what the rules are, and then let them try to adapt their business to that. You’ll have ingenuity and people will at least have the freedom to try to earn a living.

But putting a national lockdown, stay at home orders is like house arrest. It’s the greatest intrusion on civil liberties in American history, other than slavery, which was a different kind of restraint.

We did get a lot of the states to ease up on the churches. We’d write letters to the governors and the governors would comply. But my view was, it doesn’t take a rocket scientist to realize that an artificial cap of 10 doesn’t make any sense when you’re talking about St. Patrick’s Cathedral, compared to a small country church.

One of the rules under the Constitution is you have to calibrate whatever burden you’re going to place on religion – you’re going to have to take account of the circumstances and make it as narrow as possible to achieve your end. So we said, how about just a percentage of the fire marshal occupancy standard?

The Supreme Court, in a five-four vote, wouldn’t go along with that, because they wanted to say that you have to give a lot of latitude to governors in these crises. I agree, you should give a lot of latitude. But we have epidemics and pandemics – this is a very serious one, a grave one. But just because something is a medical crisis, it doesn’t give a complete blank check to executive rule.

Balancing Medical Advice with Broader Societal Concerns

[LARRY P. ARNN:] That leads me to wonder, I read that there have been north of 75,000 suicides during the shutdown. What mechanism is there or should there be in the government to take care of all these ancillary effects?

[WILLIAM P. BARR:] Here’s my problem, which is I have great respect for the medical profession. The scariest day in a lawyer’s life is when he realizes the medical profession is really pretty much the same as the legal profession. They’re human beings. They put their pants on one leg at a time. They’re right sometimes, they’re wrong other times, they disagree with each other. There are some good doctors, there are some bad doctors.

But just like lawyers, doctors are specialists who will view a broad social problem through a set of blinders. Your doctor might say, “Bill, if you want to live 20 years longer, you should do this, this, and this.” And he might be right. But I don’t want to pay those costs to live 20 years longer. I’d rather take my chances.

I understand there are externalities here, and you can’t threaten other people’s life. But the point is that you have to balance that against a lot of other factors.

The point you made is exactly what was not done, but was self-evident to anyone who had the power of logic, which is, yes, doctor, you might be right. But just think of all the collateral consequences and the costs of that. And that is not science. It is the generalist and the representatives of the entire community that should be making these balancing acts. It is not dictated by science. So all this nonsense about how something is dictated by science is nonsense.

Suicides are just the tip of the iceberg. The overdoses are out of control. They’re getting back up again. After the first time in decades, this administration actually started flattening it out and bringing it down a little on opioids, it’s going back up again. And now, with cheap methamphetamine swamping the country, and forms of opioid that are extremely deadly – fentanyl, synthetic opioids – we now have the overdose deaths going up.

We have domestic violence getting out of control. I’m sure that the shutting down of the economy and telling everyone to stay in their house has contributed to violent crime going up in many of our cities. The interruption of education, especially for disadvantaged children in the inner city, is devastating. These costs are massive.

How you balance these things is not dictated by science. A person in the white coat is not the grand seer who can come up with the right decision for society. A free people makes its decision through its elected representatives.

Rule of Law and Economic Prosperity

[LARRY P. ARNN:] This is from a senior at the Hillsdale Academy. They’re very nerdy down there. What is the relationship between the rule of law and economic prosperity?

[WILLIAM P. BARR:] One is the foundation of the other. The rule of law is the foundation of economic prosperity. The rule of law is the foundation of civilization, including economic prosperity.

That’s why these so-called Black Lives Matter people – now, as a proposition, who can quarrel with the proposition Black Lives Matter, but they’re not interested in Black lives. They’re interested in props, a small number of blacks who were killed by police during a conflict with police, usually less than a dozen a year, who they can use as props to achieve a much broader political agenda.

I view the question of black lives as not only keeping people alive, but also having prosperity and flourishing in their communities. Most deaths in the inner city of young black males below the age of 44 – the leading cause of death is being shot by another black person. And that’s crime.

The left likes to talk about dealing with the root causes, but all their solutions depend on peaceful streets at the end of the day. Education, afterschool activities, all this stuff depends on peace. If your school is run by a gang, it’s not going to get you anywhere.

As I say, the foundation of all human progress is the rule of law.

Media and Partisanship

[LARRY P. ARNN:] You’ve enjoyed excellent treatment by the media. Certainly they are attentive. Do you say, for example, newspapers in the 19th century and the 18th century were often founded with party names in them, something Federalist and Arizona Republican. Is the press more partisan now? What do you make of it? Is it different in kind from what we’ve had in the past?

[WILLIAM P. BARR:] Well, I’m not an expert on the history of the press, but yes, when de Tocqueville wrote, you used to have small towns that today couldn’t support one newspaper supporting 10, 12, 15 newspapers. And yes, they were factional and they were political. To the extent there was a national press – there wasn’t much of one – but to the extent there was, it was sometimes rapidly partisan and they were quite harsh.

But then more recently they went through this long period where they were objective. It was a profession, journalism, and they held themselves out to be objective and they were journalists trying to tell the truth, or that’s what they told us. And that has gone by the boards a long time ago.

As I’ve said, the first time I heard the word “narrative,” there was some period of time, a few years ago, where the word narrative just started popping up everywhere. And I said, “Shoot, that’s it. We’ve had it,” because the whole word suggests there’s no objective truth, that it’s everyone’s perception of the truth. You have your narrative, you have your narrative. Who’s to say whose narrative is correct?

They don’t care that they’re not telling the truth because they don’t believe truth is a meaningful concept. It’s about the pursuit of power.

I’d be more tolerant of it if they were informed people, but they’re not. In the old days, even the great liberal journalists were very educated, erudite people.

The freedom of the press is something I have, it’s something you have, it’s something we all have, because it was written at a time when you had pamphleteers and anyone could get their views out. In some ways, we’re going back to that with the internet, which has many very bad effects. But the fact of the matter is that this idea that someone who puts on a press badge somehow has more rights than somebody else to freedom of speech, or that what they write or put out is somehow legitimate journalism and what you write is not, is nonsense.

Big Tech and Free Speech

[LARRY P. ARNN:] YouTube and Google are private companies, big private companies, and they have an announced policy that they will not permit anything on their platform that calls into question the World Health Organization guidelines. And so last week, a three-month-old article by Scott Atlas, who’s recently disgraced himself by going to work in the White House, was taken down. Is that constitutional? Does the degree of control collected in those companies make them subject to some law other than just doing what they want?

[WILLIAM P. BARR:] I think it’s constitutional in the sense that as long as there’s not state action involved, because private people have the ability to do that. What you really have to ask yourself is the market power they have, the power that they’ve attained over time in the market, and whether we can inject more competition and more diversity into the market.

De Tocqueville famously talked about the real risk of the United States and democracy generally was slipping into soft despotism, the kind of world we see about us now. And he said he thought the two things that could save the United States from this was religion, and the freedom of the press. But what he said about the freedom of the press was its very diversity.

He had a very low opinion of the press. He didn’t think that the freedom of the press would save the United States because these guardians of the truth and exposers are out there on the front line protecting our liberties – far from it. But what he said was the sheer diversity.

The Threat of Concentrated Media Power

[WILLIAM P. BARR:] Because when you get into a position where there’s one person, one force or power, lashing the multitude, you get the militant majority, the galvanized majority, which was the great threat. And as you know, the framers thought that there were different ways they were preventing the coalescence of these different factions.

And nowadays, it’s hard to imagine a more concentrated situation where people are all fed the same information.

I love it when Fox News shows all the talking points that every single station uses, they all use exact same phrasing – bing, bing, bing, bing, bing. It’s like they have, and I wouldn’t be surprised, like they have a conference call at the beginning every day. “Okay, what’s the message of the day?” And they use exactly the same language. That’s bad. Now, those are a lot of that is public airwaves.

I think we have to take a look at that myself. But, you know, it’s the same thing with virtually all media. And now on the internet, you have these vast concentrations of power that are bigger and more powerful than virtually every nation in the world with the exception of a handful.

And they think that they are the arbiters of truth and control the message that people get.

[LARRY P. ARNN:] I think we must thank the Attorney General. Thank you.

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