by Michael C. Dorf
The written version of the remarks Attorney General William Barr delivered this week at Hillsdale College was not as incendiary as what he said orally but, as I shall elaborate, infuriating nonetheless. The most outrageous oral statement came in Barr's response to a question about public health measures. He said that "putting a national lockdown, stay at home orders, is like house arrest. Other than slavery, which was a different kind of restraint, this is the greatest intrusion on civil liberties in American history."
Prof Buchanan explained in his insightful post yesterday that much of what Barr said was absurd anti-government cant. He prefaced that explanation by noting that the outrageousness of Barr's condemnation of lockdowns was not the comparison to slavery, which Barr acknowledged was worse than and categorically different from lockdowns. No, the outrageousness was thinking that U.S. lockdowns (which, as I explained on Wednesday, were not actually lockdowns in the Chinese or even European sense) come in second place.
Perhaps the Attorney General forgot the "Indian removal" policy of Andrew Jackson (whose portrait Barr's boss chose to put in a place of honor in his Presidential office). No doubt the fact that the United States locked up over 100,000 Japanese Americans during World War II for no reason other than their ancestry also slipped Barr's mind. Also Jim Crow; McCarthyism; patriarchy; etc. Perhaps Barr is using a secret and idiosyncratic metric to measure "greatest intrusion."
Whatever the explanation, Barr's comparison overlooks the obvious: slavery and various other gross intrusions on civil liberties were unjustified evils. Stay-at-home orders during the pandemic undoubtedly did and do infringe on the liberty of movement, but they do so for a very large benefit: saving tens of thousands of lives. Judged by that standard, the U.S. has not restricted the liberty of movement (and freedom to go about in public maskless) too much but too little. To be sure, some other technologically advanced countries have fared no better than the U.S., but looking over the per capita death toll by country, patterns emerge. Four technologically advanced countries have done about as badly as the U.S.: the two European countries that were hit hardest earliest--Italy and Spain; and the two that have been roughly as unserious in their efforts as the U.S.: Sweden and the U.K. By contrast, Canada has suffered fewer than half as many per capita deaths as the U.S., while countries with much better public health responses--including South Korea, Japan, New Zealand, and Taiwan--have done better by orders of magnitude.
However, my point now is not that the U.S. ought to have been doing and should continue to do more to combat COVID-19, although I think that. My point is that any discussion of the civil-liberties cost of the response to the pandemic is grossly incomplete without an accompanying discussion of the benefits. I doubt that Barr would describe the imprisonment of convicted violent felons as an "intrusion on civil liberties," because, although imprisonment in fact deprives the people imprisoned of their liberty, it does so for the compensating benefits the criminal justice system brings about. We ordinarily perform cost-benefit analysis. Barr's condemnation of public health stay-at-home orders is simply cost analysis.
Interestingly, the same flaw infects Barr's written remarks, which have received considerably less attention than his response to questions. The core thrust of those remarks was a none-too-subtle defense of his interference in the prosecutions of Trump allies Michael Flynn and Roger Stone. Front-line prosecutors should not be independent, Barr argued, because supervision by an Attorney General who answers to the President provides for accountability through the democratic process. His argument echoed Justice Scalia's dissent in the independent counsel case, Morrison v. Olson, which Barr quoted at length.
Yet like his one-sided portrayal of public health measures, Barr's treatment of prosecutorial independence looks at costs without considering compensating benefits. Barr is right that independence can mean a lack of accountability and that that is indeed a cost of lodging prosecutorial discretion in professional Assistant U.S. Attorneys (dedicated public servants whom Barr insultingly calls "bureaucrats") rather than in the political appointees at central Justice. But Barr completely overlooks the benefit of independence, at least when it comes to potential prosecutions of high ranking current and former officials, including the President and his cronies: the risk of corrupt self-dealing that Congress sought to combat in the Independent Counsel law upheld in the Morrison case.
By contrast with Barr, Justice Scalia acknowledged that the self-dealing risk was the reason for prosecutorial independence. However, he thought that sacrificing political accountability was too high a cost to pay for that benefit and that, in any event, the constitutional system has other means of addressing self-dealing. As relevant to checking an administration that lets its own scoundrels off the hook, Scalia wrote:
Congress . . . can impeach the executive who willfully fails to enforce the laws; and ultimately, there is the political check that the people will replace those in the political branches . . . who are guilty of abuse. Political pressures produced special prosecutors—for Teapot Dome and for Watergate, for example—long before this statute created the independent counsel.
I have never thought that answer sufficient on its own terms, but even if it was true when Scalia wrote those words or a decade later when Kenneth Starr brought to life the prospect of an independent counsel run amok, it is no longer true today. Partisan polarization (and Republican Senators' fear of being primaried by a Trumpian true believer) make impeachment ineffective.
What about Congressional oversight more broadly? Barr had the gall to include in his prepared remarks the repeated claim that people like him have legitimacy conferred by the fact that they have been approved by two branches--through Presidential nomination and Senate confirmation. That is galling in part because Barr has, through numerous actions, shown that he regards himself as Trump's personal protector rather than a servant of the People.
Moreover, Barr's paean to Senate confirmation rings hollow because Trump has, more than any of his predecessors, sought to govern through acting agency heads who have not been approved for their positions by the Senate. "I like acting," Trump has said, even when, as in the case of the people acting in the top two spots at the Department of Homeland Security, the actors are breaking the law by purporting to exercise the authority of their respective offices.
Perhaps the most outrageous, most disingenuous statement in Barr's written remarks was his further explanation why he and other DOJ officials are politically accountable: "The elected President can fire senior DOJ officials at will and the elected Congress can summon them to explain their decisions to the people’s representatives and to the public." This from the Attorney General of a President whose administration has repeatedly resisted congressional subpoenas, whose White House Counsel instructed officials not to testify before Congress during the impeachment inquiry, that rewarded a patriotic public servant who testified truthfully about the administration's misconduct with "a campaign of bullying, intimidation, and retaliation," and that even now is going after the truth teller's brother.
There might have been a time in U.S. history when politically accountable prosecutors could be expected to serve the public interest. Perhaps such a time will return. But so long as accountability runs to and through the likes of Bill Barr and Donald Trump, a substantial measure of independence by "bureaucrats" or, as Trumpsters would say, the "deep state," is a vital necessity.