Congress Needs to Empower DOJ IG to Hold Prosecutors Accountable

In a recent speech, Attorney General William Barr claimed that subordinate prosecutors cannot be trusted to decide when to bring criminal prosecutions, and that the remedy is oversight by the attorney general and other high-ranking officials in the Department of Justice who are closest to the president and therefore the most politically accountable. “The most basic check on prosecutorial power is politics,” Barr declared.

The attorney general has it backwards. At least as far as the current administration is concerned, politics is not a safeguard. It’s a major source of abuse of prosecutorial power.

An answer to proper oversight lies in federal legislation making its way in Congress that would expand the DOJ Inspector General’s duties to include responsibility for investigating attorney misconduct, even over objection from Barr.

DOJ Accused of Playing Politics

The Barr DOJ has been accused of repeatedly using its power to advance President Trump’s partisan political interests, including by moving to dismiss Gen. Michael Flynn’s prosecution after he had already pled guilty, by reversing the trial prosecutors’ sentencing recommendation in Roger Stone’s case before the president mooted the issue by pardoning Stone, and by soft-peddling the Mueller report’s findings before the report was released to the public.

Most recently, Barr has played politics with prosecutors’ decision-making in state cases, where he has no direct authority but has the power of the purse strings. Within weeks after President Trump issued a memo authorizing the attorney general to review federal funding to cities that permit “anarchy, violence and destruction,” Barr identified New York City as one of those cities, in part, because Manhattan District Attorney Cyrus Vance, Jr. “declined to prosecute charges of disorderly conduct and unlawful assembly arising from the protests.”

Remember that the president is battling Vance’s office over its grand jury investigation of Trump’s businesses. Under Barr, the DOJ took Trump’s side, asking the U.S. Supreme Court to block the Manhattan grand jury’s access to Trump’s tax returns. It is hard to escape the conclusion that Barr is now using the federal government’s financial might either to pressure Vance to drop the investigation or as payback for conducting it.

Given that Manhattan’s elected prosecutor answers directly to the Manhattan electorate, Barr’s interference in state misdemeanor cases involving political protestors directly contradicts his premise that the check on prosecutorial abuse is political accountability.

This contradiction suggests that Barr is not interested in accountability, but rather in consolidating political power and using prosecutors to achieve his and the president’s political will.

Harm to Justice, Lack of Public Accountability

All of this is unsurprising. Barr is a political appointee beholden to the president and his agenda. Given Barr’s proximity to the administration, his interference with federal and state prosecutions is bound to seem politically motivated. Barr’s response seems to be, if you think he’s using his power toward impermissible political ends, vote out his boss.

There are several problems with this. First, the damage is already done before the voters have a say. In criminal prosecutions, this means a potential sacrifice in justice and individual liberty.

Second, it’s hard for the public to know what is going on. Because the public does not have access to the facts in criminal prosecutions, political accountability is an empty promise.

Finally, voters around the country are unlikely to cast their votes for president based on concerns about federal criminal prosecutions in other locales that seem to be politically motivated, especially if voters sympathize with prosecutors’ political objectives.

IG Needs to Monitor Federal Prosecutors

So, who should monitor federal prosecutors, from subordinates on up to the attorney general? Who should determine whether or not their decisions are improperly politicized? Obviously not the attorney general himself. Nor any other political actor. An inspector general, who is not identified with either party or with any individual politician, can best be trusted to monitor prosecutorial decisions and prevent improper partisan concerns from infiltrating the process.

The only problem is that the president has repeatedly undermined the independence of inspectors general. How can we expect a robust check from the DOJ inspector general, when the president has fired others who have dared to investigate wrongdoing in his administration?

The Senate Judiciary Committee has passed a bill to empower the DOJ watchdog over the objection of Barr. This bill would shift responsibility for overseeing prosecutors’ misconduct from an office under Barr’s supervision to the DOJ inspector general. The House also passed its version of the bill.

The IG’s office has the power and the expertise to conduct an independent investigation.

This sort of factual investigation and transparency will work better than the political system to both expose the facts and hold federal prosecutors accountable for politically-motivated abuses of power.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

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Author Information

Bruce A. Green is the Louis Stein Chair at Fordham Law School, where he directs the Louis Stein Center for Professional Ethics.

Rebecca Roiphe is the Trustee Professor of Law and co-dean for faculty development at New York Law School.