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ABA Fact Check: William Barr Tests Limits of Attorney General’s Authority

William Barr

ABA Legal Fact Check debuted in August 2017 and is the first fact check website focusing exclusively on legal matters. This article has been republished with permission.

In public remarks on Sept. 16, Attorney General William Barr strongly asserted that on matters of federal prosecution, he is in charge. “What exactly am I interfering with?” he asked, alluding to complaints he improperly intervened in a handful of high-profile cases. “Under the law, all prosecutorial power is invested in the attorney general.”

Is Barr correct? Does the position of U.S. attorney general carry unlimited legal authority to make those decisions?

Nearly 185 years ago, French sociologist and political theorist Alexis de Tocqueville, who traveled the United States in the early 1830s, observed: “There is hardly any political question in the United States that sooner or later does not turn into a judicial question.”

At the center of that intersection is the attorney general of the United States, who has roughly 108,000 employees and a budget of nearly $30 billion under his control. By far, he runs the largest law firm in the world, overseeing the nation’s 93 U.S. attorneys and other counsel employed by the U.S., as well as the administration and operation of all Department of Justice (DOJ) entities, including the FBI, Drug Enforcement Agency, Bureau of Prisons and U.S. Marshals Service.

Congress established the Office of Attorney General as a part-time, one-person shop with the Judiciary Act of 1789, which provided for the appointment of a person “learned in the law, to act as Attorney General for the United States … (to) prosecute and conduct all suits in the Supreme Court in which the United States shall be concerned” and to provide legal counsel, when requested, to the president and department heads. The office existed under that title until 1870, when Congress created the Department of Justice.

As a presidential appointee subject to U.S. Senate confirmation, the attorney general serves as a political officer while discharging a range of criminal and civil legal responsibilities. Historically, that role has given rise to tension between political and legal duties. Attorney General Edward Bates, who served under President Abraham Lincoln in the 1860s, once said: “The office I hold is … strictly legal; and it is my duty, above all other ministers of State to uphold the Law and to resist all encroachments, from whatever quarter, of mere will and power.”

President Andrew Jackson expressed a different attitude. According to a comprehensive American Enterprise Institute report on the role of the attorney general, Jackson was quoted as saying to his attorney general during the controversy over a national bank in the 1830s, “Sir, you must find a law authorizing the act or I will appoint an Attorney General who will.” In a more recent example, two years ago President Donald Trump fired AG Jeff Sessions after voicing repeated complaints about his performance, including his recusal from the Russian probe.

In 1940, then-Attorney General Robert Jackson, later a U.S. Supreme Court justice and chief U.S. prosecutor at the Nuremberg trials in Germany, delivered an address tilted “The Federal Prosecutor,” which is often cited as timeless advice for attorneys general and other prosecutors. “The prosecutor has more control over life, liberty and reputation than any other person in America,” Jackson said. “His discretion is tremendous.”

Past U.S. Supreme Court rulings have focused on the authority of the AG, rather than the duties of the office. In 1888, for example, in United States v. San Jacinto Tin Co., the court upheld the AG’s authority to intervene in a land case involving U.S. interests. “We are not insensible to the enormous power and its capacity for evil thus reposed in (the Justice Department),” the court said, adding: “It has often been said that the fact that the exercise of power may be abused is no sufficient reason for denying its existence, and if restrictions are to be placed upon the exercise of this authority … it is for the legislative body (Congress) which created the office to enact them.”

Whether that authority can be subject to judicial review is a central issue in the ongoing case involving former White House national security adviser Michael Flynn, who sought to withdraw a 2017 guilty plea for lying to the FBI about contacts with Russians as an adviser to Trump prior to inauguration. In May, the DOJ moved to drop Flynn’s prosecution, and the presiding federal district judge appointed a retired federal judge as amicus curiae, or friend-of-the-court, to oppose the government’s motion. Flynn’s lawyers subsequently sought a writ of mandamus, or order, from the U.S. Circuit Court of Appeals for the District of Columbia to stop the proceedings. While a three-judge panel ordered the case dismissed, the full court later reversed the decision and sent the case back to the district court.

In his amicus filing the retired judge characterized DOJ’s action as a “corrupt and politically motivated favor.” At a hearing on Sept. 28 in district court, DOJ officials rejected that assessment, and have said Flynn’s interview by the FBI “was unjustified,” so his lies were immaterial to any crime.

The attorney general, like other prosecutors, would still have to counter any challenges by defendants in court that their prosecution has a discriminatory purpose or effect under the post-Civil War 14th Amendment giving all persons “equal justice of the laws.” The burden to prove selective prosecution falls upon the defendant.

In his Sept. 16 remarks, Attorney General Barr said he has intervened because he believes DOJ has too many overzealous prosecutors. “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,” he said. Putting the validity of that statement aside, based on long-ago Supreme Court decisions and statutory law, Barr has an argument for asserting that “all prosecutorial power” rests with him. However, his decisions could be subject to court challenge.

Read more of ABA’s Legal Fact Check series here.

[Image: NICHOLAS KAMM/AFP via Getty Images]

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