Today is all Bill Barr--and rightly so, after Barr's fine Hillsdale college address Former federal prosecutor Shipwreckedcrew has come away from Barr's address with a theory of what types of prosecutions we should expect to see as a result of John Durham's Russia Hoax investigation. SWC's theorizing comes at an opportune time, since some of us were discussing this very issue earlier today--but based on Senate actions with regard to their own investigations of the Russia Hoax.
Obviously, it's misguided to expect the results we hope for from Congress. Congress serves many governmental purposes, but prosecution isn't one of them. One hears--and reads in comments--that, for example, "McCabe will walk" because he hasn't been subpoenaed and hasn't agreed to testify voluntarily. I won't belabor the obvious--this type of thinking, even if it were to hit on correct results at times, is simply misguided. And especially so when dealing with a highly principled AG like Bill Barr.
Now, SWC has developed a theory of what to expect that runs basically like this. Barr will make the big decisions. Barr will not go for what I've called a "big picture conspiracy" prosecution but will instead opt for what might be called nickel-dime "false statement" type prosecutions.
SWC bases this theory on a brief passage from Barr's address. I will say this--as one who hopes for that big picture conspiracy prosecution. SWC may turn out to be right. If he is, I'll be disappointed because in my view it would do the country no service to pretend that something that actually did happen didn't. Here's SWC's reasoning:
A "calibrating" comment in AG Barr's speech yesterday at Hillsdale College:
"We need to recognize that and must take to heart the Supreme Court’s recent, unanimous admonition that “not every corrupt act by state or local officials is a federal crime.”
I read this to mean that "decisions" by senior Obama officials are not going to be criminalized. But the corruption will be revealed. Actions taken by individuals will be the subject of criminal indictments.
It also means that the ultimate decision about who is included and who is not included in any criminal charges is going to be Barr's, not Durham's.
And I think Barr will go full-on and talk/testify about who was not charged -- but why they acted corruptly.
The left will scream that it violates DOJ policy to comment on people not charged, but that's not true. There are provisions that allow public comment when it is in the public interest to know what DOJ is doing/not doing, AND because many of the actors worked for DOJ.
The problem I see here is that it's a big jump from questioning whether all corrupt acts by state or local officials are corrupt to the question of whether to use broadly based federal conspiracy statutes to prosecute actual federal crimes. I don't say there's no connection, no analogy, but the two are fundamentally different--and I think an examination of the extended passage shows that it may not be legitimate to stretch Barr's words that far. Here is that extended passage:
Taking a capacious approach to criminal law is not only unfair to criminal defendants and bad for the Justice Department’s track record at the Supreme Court, it is corrosive to our political system. If criminal statutes are endlessly manipulable, then everything becomes a potential crime. Rather than watch policy experts debate the merits or demerits of a particular policy choice, we are nowadays treated to ad naseum speculation by legal pundits — often former prosecutors themselves — that some action by the President, a senior official, or a member of congress constitutes a federal felony under this or that vague federal criminal statute.
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 in a cage. These tools are not built to resolve political disputes and it would be a decidedly bad development for us to go the way of third world nations where new administrations routinely prosecute their predecessors for various ill-defined crimes against the state. The political winners ritually prosecuting the political losers is not the stuff of a mature democracy.
The Justice Department abets this culture of criminalization when we are not disciplined about what charges we will bring and what legal theories we will bless. 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 of legal theories. We have seen this time and again, with prosecutors bringing ill-conceived charges against prominent political figures, or launching debilitating investigations that thrust the Justice Department 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’s leaders will permit it.
As long as I am Attorney General, we will not.
Our job is to prosecute people who commit clear crimes. It is not to use vague criminal statutes to police the mores of politics or general conduct of the citizenry. Indulging fanciful legal theories may seem right in a particular case under particular circumstances with a particularly unsavory defendant—but the systemic cost to our justice system is too much to bear.
We need to recognize that and must take to heart the Supreme Court’s recent, unanimous admonition that “not every corrupt act by state or local officials is a federal crime.”
If we do not, more lives will be unfairly ruined. And more unanimous admonitions from the Supreme Court will come.
What I've spoken of--repeatedly--is the prosecution as a conspiracy under federal law of a series of criminal acts that share common actors and a common purpose. This conspiracy abused the federal authority which had been entrusted to the perpetrators in order to advance the goals of their conspiracy as well as to conceal their criminal acts.
That, in my considered view, is very far from Barr's view of "a capacious approach to criminal law [that regards] criminal statutes [as] endlessly manipulable." It is simply to recognize the true nature of what occurred. This is not a case of over stretching a "vague federal criminal statute."
Barr advocates reserving the criminal law for "the most egregious misconduct." Again, Barr's remarks on what occurred in the course of the Russia Hoax leave little doubt that he regards this episode as one of the most egregious in our nation's history. It's true that he has stated that he doesn't expect Obama and/or Biden to be prosecuted. That, I believe, has a lot to do with Barr's views on the Presidency as a constitutionally unique institution--his view of the unitary executive as centered in the very person of the President.
But that leaves all Executive Branch subordinates fair game--as long as prosecutions of their actions are prosecutions of "clear crimes" rather than the product of DoJ "insert[ing itself] into the political process based on the flimsiest of legal theories." I'm quite sure that Barr does not believe that's what his investigation of the Russia Hoax is. And I'm also quite sure that an Attorney General who is able to consider prosecuting of the mayor of a major city for sedition--for allowing the erection of a so-called "autonomous zone"--is also fully up to prosecuting DoJ officials, the heads of intelligence and law enforcement agencies, and White House officials for a very real conspiracy against the Executive Branch that he clearly reveres and is determined to defend.
It is only after coming that distance that Barr drops the remark about "local or state" officials and the possible application to them of federal law.
I may yet be wrong in my hopes and, yes, expectations, but at this point and based on Barr's public statements at Hillsdale College, I believe our former federal prosecutor's theory is a shipwreck.