THE TIGHTENING NOOSE:

As many attorneys general have before, Barr quotes Robert Jackson's famous 1940 address to the U.S. attorneys to note the dual nature of prosecutorial discretion. Prosecutorial discretion is, of course, essential to justice. This is true at the individual case level, in which mechanical application of the law to all people in all circumstances would itself produce injustice. It is also true at the policy level, where discretion allows for flexible and publicly accountable law enforcement. As we wrote in our book, "Unmaking the Presidency," prosecutorial discretion:

is what allows the justice system to be nimble, targeting drug cartel crimes in the 1980s and 1990s and shifting to terrorism and internet crimes in the subsequent decade. The law can be slow to change. The political system's enforcement priorities, by contrast, can shift much more quickly; think of how attitudes toward nonviolent drug offenses have changed over the past decade much faster than the laws on the subject. Prosecutorial discretion allows flexibility even in the absence of legislative change that can be slow and difficult. 

The paradox is that discretion brings with it the highest risk of abuse. As Jackson put it:

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 cases that need to be prosecuted. With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone. In such a case, it is not a question of discovering the commission of a crime and then looking for the man who has committed it, it is a question of picking the man and then searching the law books, or putting investigators to work, to pin some offense on him. 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...

Jackson is describing the evil of politically-motivated law enforcement, wherein the prosecutor wields the law to target the enemies of those in power and, conversely, to protect the friends of those in power. The challenge is how to best guard against this risk, while preserving necessary discretion. 

Barr insists that "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 politics is tyranny." And he complains that "in the decades since Justice Jackson's remarks, it has become fashionable to argue that prosecutorial decisions are legitimate only when they are made by the lowest-level line prosecutor handling any given case."

It is neither true that prosecutorial decisions are only legitimate when made by line prosecutors nor that it is fashionable to argue as much. The actual line of argument is that while concerns about accountability are heightened at the career level, the risk of politically-motivated abuse is heightened at the political level. 

This is why every attorney general is pressed during confirmation hearings to reassure Congress and the public that he or she will act as the chief law enforcement officer of the United States and not as the president's personal lawyer or hired gun. At his own confirmation, Barr himself pledged that he would not be "bullied" by the president or anyone else into doing anything he believed to be "wrong." 

And while Senate-confirmed officials bring to the table the legitimacy of political accountability, career officials bring the legitimacy of regular order, the department's traditions and knowledge of similar cases. Career prosecutors are governed by guidelines designed to guard against improper political considerations. Barr claimed in his speech that career prosecutors have political biases too--just not the political accountability for their actions--but the collective record of the career prosecutors of the department actually does stand for the relatively even-handed administration of justice in politically sensitive matters. 

Prior attorneys general have recognized the necessity of this legitimacy, particularly in cases that might touch on the interests of the president. The entire system of special counsel regulations--and the independent counsel statute before it--was created to preserve legitimacy in matters in which the attorney general and his appointees were unable to be impartial, in perception or in fact. And while line-level prosecutors do not have the final say, their professional judgments do carry presumptions of apolitical regularity. When attorneys general intervene in cases that might touch on the president's interests, they have traditionally done so very cautiously. They have recognized that it would profoundly damage their institution to be seen as doing the political errands of the president.

One might think that an attorney general would be especially cautious when serving a president with a documented history of publicly and privately directing the abusive prosecutions of political opponents. In February, Barr himself said that Trump's public tweets on cases including Stone "make it impossible for me to do my job." Under such circumstances, to make a cause out of the right of intervention, as Barr has done, is perverse in the extreme. 

Yet Barr, whatever may be in his heart, has elevated his ability to intervene in and supervise cases above any perception of apolitical justice. He would presumably counter that he is simply doing the right thing as he understands it, unrelated to Trump's political fortunes----indeed, Barr allies are pushing precisely this spin in media accounts. This would be easier to accept if Barr routinely interfered in cases and overturned the judgments of his subordinates in ways which occasionally cut in the perceived favor of the president, occasionally cut against, and often were wholly unrelated to the president's desires, tweets, and fortures. In such a scenario, Barr might be criticized as a micromanager, but it would be difficult to allege political abuse. 

But that's not the case. Barr does not routinely intervene in cases. He has selectively intervened in specific cases affecting Trump and, at least to our knowledge, always in the direction Trump has publicly urged. He doesn't even really try to pretend otherwise...

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