William P. Barr | The Constitution and the Rule of Law

if i could have your attention again everybody's got to stop stop talking i'm reclaiming my time i hope you enjoyed your dinner you're not allowed to speak anymore the purpose of our annual gathering is to note one of the most remarkable events in world history the signing of the united states constitution and so the establishment of government by reflection and choice forming a more perfect union to secure the blessings of liberty unlike any other academic institution hillsdale college celebrates the constitution teaches the constitution and upholds the constitution day in and day out year in and year out and we have done so since 1844. like the um like the country we pursue the stated object of our founders the diffusion of sound learning for the perpetuation of civil and religious liberty and intelligent piety in the land hillso the first american college to private in its charter any discrimination based on race religion or sex it was an early force for the abolition of slavery and we proudly hosted the great frederick douglass on our campus it was a second college in the nation to grant four-year liberal arts degrees to women as a non-sectarian christian institution it maintains by precept and example the immemorial teachings and practices of the christian faith the college continues to uphold the principles of the constitution by defending its independence refusing to count our students by race and refusing to bring one penny of taxpayer money to the college and every year you might have heard every year through four wars two pandemics and even a great fire we have held graduation and we did so this year most important the college teaches the liberal arts and trains students in the arts of liberty elizabeth and i are proud parents of a freshman at hillsdale college and she is currently taking the core course required of each and every hillsdale student in the united states constitution her favorite electric favorite elective i might uh add by the way is introduction to shotgun where she was very happy to tell us she is currently beating all the boys in the competition hillsdale continues to carry out its original mission today both in the classroom nationwide through its outreach programs around the country 24 charter schools and counting its online courses which have been taken by over 2 million people in primus which regularly goes out to over 5 million readers and by estimation each month the college reaches over 20 million people through its various forms of communication let me introduce the man who is responsible for leading this race institution i have had the privilege of knowing him and working with him for over 25 years we first met when he was president of the claremont institute in california originally from arkansas he received his m.a and phd in government from the claremont graduate school he worked in england as research director for sir martin gilbert the official biographer of sir winston churchill while studying at the london school of economics and it was there that he met his wonderful wife penny who was here this evening thank you penny he was the founding chairman of the california civil rights initiative which prohibited racial preferences in state hiring contracting and college admissions he's on the board of the directors of the heritage foundation the intercollegiate studies institute the claremont institute and his past president of the philadelphia society in 2015 he received the bradley prize from the lyndon harry bradley foundation he's the author of three books liberty and learning the evolution of american education the founder's key the divine and natural connection between the declaration of const and the constitution and what we risk by losing it and churchill's trial winston churchill and the salvation of free government he is also the editor of the churchill documents part of the official biography of winston churchill begun in 1962 by randolph churchill and now published by hillsdale college that project was recently completed under dr arn's direction with its 23rd volume great accomplishment in addition to being a professor of politics and history and teaching a range of courses from aristotle to churchill he's the 12th president of hillsdale college dr larry pjorn good evening oh there's a lot of us here is that legal sometimes my confidence is shaken that i'm mature enough to be president of hillsdale college even after 20 years but then i see matthew and he's just like a kid to me and you know he's doing okay i mean i'm amazed and pleased thank you matthew we had a board of trustees meeting today and uh it looks like i'm going to be employed for another year and you know in the middle of all this mess it's a sign of the times college has done pretty well i mean you know really well but this year was well just passed the best financially and in admissions and because we got disrupted for two months and we missed each other now it's just as happy as it can possibly be and i learned a lot you know because when when march came and all of a sudden for the first time in 175 years we are disrupted from having college it's like combat because now you have to not only manage a college you have to fight to be able to do it and uh because we are unable at least in the media to count the cost of the shutdowns as opposed to the death rate from the virus which is significant nobody counts you know the business is closed nobody counts what it means for somebody 21 years old to reach the moment of completion of their undergraduate education which is the time when they finish preparation to be a fine human being and not to get to finish that and we know from the classics that the completion of a thing is the fullness of a thing and we sent them all home so we were determined to have commencement and you know say i was threatened with arrest and and the people you know implying they didn't make the threat but implying those threats they were astonished that that didn't finish it and there was a conversation between an authority in michigan and our general counsel and he said the general counsel bob norton he said you know there would need to be a law right just what you like and don't like that's not what it's about what's the law and the law does say it's not really a law by the way the governor of michigan with her staff and i don't know how you guys work but i can talk to about 10 or 12 people a day meaningfully so it's got to be she and 10 or 12 people wrote a thousand pages of rules in michigan there is a time it's eased up now you could buy a garden hoe that was legal but it was illegal to buy seeds and so all the stores that sell the hose and the seeds they roped off the seed part which by the way served to concentrate people in the store genius um to you many great old friends of the college i want to thank you for being here and i want to register in public that i'm sick to death of being told that my daughter kathleen o'toole is more capable than i i've known him for a long time and yet she is great with child and i am going to ruin her child i'm going to be the worst grandfather in history public notice served the rule of law is a concept that is delicate and essential it is delicate because it requires an act of obedience from everyone including especially people who are good at power it's something to which we must bow we must not think of our station our strength our wealth we must think of the law law is very complicated it's hard to think of that now it's essential because justice depends on it without it justice is nothing but the interest of the powerful without it we will have gone the way that thirsemic has proposed in plato's republic in book one justice is just what the powerful say it is we worry about justice today because look at the energy that's put on the left into the reform of the electoral system to adjust the results so that they will always go their way the rules of the game which are old older by the way ours is the longest surviving written constitution and although we're a relatively new country relative to many we are also the oldest country on earth indeed the oldest country on the history of earth and those rules that have kept us together and kept us free for so long they mean nothing now how would we get that back what kind of people would be necessary to give it back we have an example tonight our speaker tonight is practiced and skilled in his trade one of the most he's already been attorney general once before he's done asking about his career he liked being general counsel for a big corporation and i didn't say it but i'll say it to him now i have my first general counsel at hillsdale college now and those guys are unruly he must have had a lot of fun he went to columbia and he went to law school at george washington he's a native of new york he's been married for 73 years no he's been married he's been married for 47 years i've been married for 73 years although my wife is only 32. those are qualifications what are the qualities i'm just going to cite two by reading something he wrote two things he wrote they're very beautiful by the way at notre dame october 2019 the founding generation were christians they believe that the judeo-christian moral system corresponds to the true nature of man do you see what kind of claim that is by the way revelation and reason tell us the same thing he's saying those moral precepts start with the two great commandments to love god with your whole heart soul and mind and to love thy neighbor as thyself but they also include the guidance of natural law a real a real transcendent moral order the eternal law is impressed upon and reflected in all created things from the nature of things we can through reason experience discern standards of right and wrong that exist independently of the human will now i will tell you those three paragraphs encapsulate what i've been studying all my life and do you see what they did they give you because you know our speaker tonight is very good at power he's had a lot of it he's not afraid to use it and yet he thinks that even while he uses it he must obey and that's a commandment from god the second thing is about honor i will tell you that i'm thrilled when i read this in may 2019 he was interviewed by jan crawford of cbs news and i just was stunned when i heard it because here's what what she's doing and what he does she says when you came into this job attorney general in the trump administration you were u.s attorney in connecticut you had a good reputation on the right and on the left you were a man with a good reputation you are not someone who as you know accused of protecting the president enabling the president lying to congress did you expect that now that part i think by the way that's a woman appealing to a man that she thought was one of her kind and you can't be what you seem to be he replies attorney general barr well in a way i did expect it you did yeah because i realized we live in a crazy hyperpartisan period of time and i knew that it would only be a matter of time if i was behaving responsibly and calling them as i see them that i would be attacked because nowadays people don't care about the merits and the substance that point by the way is like the voice of doom talking to live in a world where people don't care about that is to live in a world of enemies to agree with that he says is antithetical to the way the department runs and any attorney general is going to end up losing a lot of political capital if he does right one of the reasons i ultimately was persuaded that i should take it on is because i think at my stage of life it really doesn't make any difference you're at the end of career she says i'm at the end of my career does it mean she says by the way it's very the things she says are very sympathetic right also kind of unbelieving does it mean that the reputation you have worked your whole life through is sacrificed and he says yeah but everyone dies and i am not you know i don't believe in the homeric idea that you know immortality comes by you know having odes sung about you over the centuries now that last thing that's paradoxical because like achilles chose early death and honor over life with his family but we learned in the socratic writings that that's not the highest kind of honor the highest kind of honor is to do right till the last day and prepare to meet your maker if we're to get back the rule of law it will be people like attorney general william barr who get it back for us thank you thank you very much i'm very honored to have been invited to speak at this dinner and i really appreciate your comments larry great to get to know you i've been reading you over the years and it's a it's a real delight to have spent the evening with you and uh i'm very pleased to be able to speak to you uh at this hillsdale college celebration of our magnificent constitution and and i'm a great admirer of hillsdale as i was telling larry i don't get to make many speeches like this i'm usually talking about crime rates and that kind of thing but uh i wanted to speak at hillsdale because it's one of the few maybe a handful of institutions of higher learning where it uh is actually worthwhile spending the money to get an education at and i mean that sincerely sadly many colleges these days don't even teach the constitution much less celebrate it you know one out of every four americans don't know who we fought the revolution against it's pretty pathetic and that number is increasing steadily as our educational institutions fail us but at hill hillsdale you recognize that the principles of the founding are as relevant today and as important today as ever and vital indeed today to the survival of our great experiment here freedom and i appreciate your observance and all you do for civic education and education period in this country now when many people think of the virtues of our constitution first mentioned the bill of rights of course that's the talking point of the constitution there's a bill of rights you have rights and i guess that makes sense they get the great guarantees of the bill of rights freedom of speech freedom of religion especially the right to keep and bear arms just to name a few are critical safeguards to our liberty but as president reagan used to remind people the soviet union had a constitution and even included some of these lofty sounding rights ultimately however those promises are just empty words because there was no rule of law in that society to enforce them the rule of law is the linchpin of american freedom and the critical guarantee of the rule of law comes from the constitution's structure of separation of powers now there are many elements of the rule of law and there are many many safeguards built into our great constitution but tonight i want to talk about the separation of powers the free the framers recognize that by dividing the legislative executive and judicial powers each significant but each limited they would minimize the risk of any form of tyranny that is the real genius of the constitution and it ultimately is more important to securing liberty than the bill of rights after all the bill of rights is a set of amendments to the original constitution and i know you all know that the framers did not think it was needed uh they didn't need to con to include into the constitution and express enumeration of rights today i want to talk about the power that the constitution allocates to the executive branch particularly in the area of criminal justice the supreme court has correctly held that under article two of the constitution the executive has virtually unchecked discretion to decide whether to prosecute individuals for suspected crimes we all know that as the executive vested with the responsibility for seeing that the laws are faithfully executed the power to execute and enforce law is an executive function altogether and that means discretion is vested in the executive to determine when to exercise the prosecutorial power the only significant limitation on that discretion comes from other provisions of the constitution for example the united states attorney could not decide to prosecute only people of a particular race or a particular religion but aside from that limitation which thankfully uh remains only a hypothetical in our country the executive has broad discretion to decide whether to bring criminal prosecutions in particular cases the key question then is how the executive should exercise its prosecutorial discretion 80 years ago this spring one of my predecessors in this job then attorney general robert jackson gave a famous speech to the conference of united states attorneys in which he described the proper role and qualities of federal prosecutors justice jackson was one of only a handful i think three maybe attorneys general who ultimately ended up as a justice on the supreme court much has changed in in the eight decades since justice jackson's remarks but he was a man of uncommon wisdom and it is appropriate to consider his views today and and how they apply in our modern era federal prosecutors possess tremendous power power that is necessary to enforce our laws and punish wrongdoing but power that like all power any other power carries inherent potential for abuse justice jackson recognized this and as he put it the prosecutor has more control over the life liberty and reputation than any other person in america prosecutors have the power to investigate people to interview their friends and they can do so on the basis of mere suspicion of wrongdoing people facing federal investigations incur ruinous legal costs and often see their lives reduced to rubble before a charge is even filed justice jackson was not exaggerating when he said while the prosecutor at his best is one of the most beneficent forces in our society when he acts from malice or other base motives he is one of the worst think about the power of a prosecutor doesn't they have to answer to anything outside the office of the prosecutor and he can destroy people's lives just by bringing an investigation destroy their reputation destroy their livelihood in today's world and it's not just individuals think of the corporations anderson the accounting firm thousands and thousands and thousands of jobs done away within an instant because of a prosecutorial decision and a decision that was largely discretionary because individuals are initially responsible for the crime and the question of whether or not you're going to impute that to the corporation and take down the corporation as well is largely a discretionary call by prosecutors and in today's world going after a corporation or a white-collar defendant is like shooting fish in a barrel there is no contest you threaten a company with criminal liability and all the collateral effects that that has no corporation is going to go to trial and fight that and the prosecutors know that's just the question of how much the check is going to be and that's all within the control of a prosecutor the power as justice jackson said to strike its citizens not the the power that the prosecutor has is not merely it can strike its citizens not with just the individual strength but with all the force of the government itself and that has to be carefully calibrated and carefully supervised because left unchecked it has the power to inflict far more harm than it prevents the most basic check on prosecutorial power is political accountability it is counterintuitive to say that as we rightly strive to maintain an apolitical system of criminal justice but 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 political accountability is tyranny now justice jackson understood this and as he explained presidential appointment and senate confirmation of the united states attorneys and the senior department of justice officials is what legitimizes their exercises of sovereign power you are required to win an expression of confidence in your character by both the legislative and the executive branches of the government before assuming the responsibilities of a federal prosecutor yet in the decades since justice jackson's remarks it's become a commonplace to argue that prosecutorial decisions are legitimate only when they are made by the lowest level line prosecutors the career prosecutors handling any given case ironically some of those same critics see no problem in campaigning for highly political elected district attorneys to remake state and local prosecutorial offices in their preferred progressive image which often involves overriding the considered judgment of the career prosecutors and police officers but aside from that hypocrisy the notion that line prosecutors should make the final decisions within the department of justice is completely wrong and it is antithetical to the basic values that undergirds our entire system the justice department is not a praetorian guard that watches over a society impervious to the ebbs and flows of politics it is an agency within the executive branch of a democratic republic a form of government where the power of the state is ultimately reposed in the people acting through their elected president and their elected representatives i know i don't include many applause lines in my prepared speeches had i known this was going to be a far side chat i would have cut this shorter but i will give you some something to clap that later okay the men and women who have ultimate authority in the justice department are thus the ones on whom our elected officials have conferred that responsibility presidential appointment and senate confirmation that blessing by the two political branches of government gives these officials democratic legitimacy that career officials do not possess the same process that produces these officials also holds them accountable the elected president can fire senior department of justice officials at will and the elected congress can summon them to explain their decisions to the people's representatives and to the public and because these officials have the imprimatur of both the president and congress they also have the stature to resist these political pressures when necessary and they can take the heat for what the department of justice does or doesn't do line prosecutors by contrast are generally part of the permanent bureaucracy they do not have the political legitimacy to to be the public face for tough decisions and they lack the political buy-in necessary to publicly defend those decisions nor can the public and its representatives hold civil servants accountable in the same way as appointed officials indeed the public's only tool to hold the government accountable in is an election and the bureaucracy is neither elected nor easily replaced by those who are moreover because these officials are installed by the democratic process that is the appointees they are the most equipped to make the judgment calls concerning how we should wield our prosecutorial power as justice scalia observed and perhaps his most admired judicial opinion is dissent in morrison versus olson almost all investigative and prosecutorial decisions including the ultimate decision whether after a technical violation of the law has been found prosecution is warranted in involved the balancing of innumerable legal and practical considerations and those considerations do not need to be need do not i do need to be balanced in each and every case as justice scalia also pointed out it is nice to say fiat justice let justice be done though the heavens may fall but it doesn't comport with reality it would do far more harm than good to abandon all perspective and proportion in an attempt to ensure that every technical violation of criminal law by every person is tracked down investigated and prosecuted to the nth degree our system works best when leavened by judgment discretion proportionality and consideration of alternative sanctions all the things that supervisors provide cases must be supervised by someone who does not have a narrow focus but who is broad gauged and pursuing a general agenda and that person need not be a prosecutor but someone who can balance the importance of vigorous prosecution with other competing values in short the attorney general senior doj officials and u.s attorneys are indeed political but they are political in a good and necessary sense indeed aside from the importance of not fully decoupling law enforcement from the constraining and moderating forces of politics devolving all authority down to the most junior officials does not even make sense as amazing a matter of basic management name one successful organization or institution where the lowest level employees decisions are deemed sacrosanct they aren't there aren't any 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 good leaders at the department of justice as any organizations need to trust and support their subordinates but that does not mean blindly deferring to whatever those subordinates want to do one of the more annoying things that i hear and face and you know this has been going on for decades this this strange idea that political officials interfere in investigations or in cases and i'm saying what do you mean by interfere under the law all prosecutorial power is vested in the attorney general and these people are agents of the attorney general and as i said fbi agents whose agent do you think you are i don't say this in a pompous way but that that is the chain of authority and legitimacy in the department of justice and i say well what exactly am i interfering with when you boil it right down it's the will of the most junior member of the organization who has some idea that he wants to do something and what makes that sacrosanct what makes the judgment of the next layer up or the next layer up or the next layer up each layer by the way fanning out and having broader and broader experience much more experience and a broader portfolio and a broader perspective what makes the lion attorney who's handling a particular case their judgment so sacrosanct now the idea is i guess well they're not political and therefore their judgments won't be political but for many my experience in the department in two different eras career employees are not apolitical necessarily some are some are very political and can check their politics at the door and others can't and other and and can be partisan but they're not apolitical necessarily they're human beings like everybody else and they're very usually less experienced individuals than their supervisors so this is what presidents the congress and the public expect when someone go when something goes wrong in the department of justice the buck has to stop somewhere and that's at the top the statute i referenced was 28 usc section 509 which couldn't be planar all functions of other offices of the department of justice and all functions of agencies and employees of the department of justice are vested in the attorney general and because the attorney general's ultimately politically accountable for every decision that the department makes i and my predecessors have had an obligation to ensure that we make the correct decision the attorney general the assistant attorneys general the u.s attorneys are not figureheads we're supervisors our job is to supervise and anything less is an abdication active engagement in our cases by senior officials is also essential to the rule of law the essence of the rule of law is that whatever rule you apply in one case must be the same rule you would apply in a similar case treating each person equally before the law includes how the department enforces the law we should not prosecute someone for wire fraud in manhattan using a legal theory we would not equally pursue in madison or in montgomery or allow prosecutors in one division to bring charges using a theory that a group of prosecutors in another division down the hall would not deploy against someone who's engaged in indistinguishable conduct we must strive for consistency and that is yet another reason why centralized senior leadership exists to harmonize the disparate views of our many prosecutors in a consistent policy for the department i was being interviewed by a member of the press it was a radio interview uh and i got one of these questions like uh well you know why are you you know interfering in some case over here or some case over there and i said well why do you think we have one attorney general i said we have 93 districts 50 states 93 districts why don't you think each u.s attorney should be a law unto themselves why do you think we have one attorney general for uniformity of law for having consistency in the application of law for having someone who has the entire perspective of the playing field and the cameramen were all nodding their head this made sense this made sense jackson said we must proceed in all districts with that uniformity of policy which is necessary to the prestige of federal law but i think there's more involved than prestige uniformity is what protects us at the end of the day our system is really the crystal the the crystallization of the golden rule in a political system and that's ultimately what protects us which is i'm not willing to do to somebody else what i'm not willing to have done to me that is ultimately the foundation of our freedom okay so we see that in the legislative branch think about it constitutionally here since i'm talking about the constitution tonight the legislature in the united states our national federal legislature can't make one law that applies to new york and another to california now there are a lot of reasons for that think about it because then you could have little factions in the country you know buying favor and building a majority to adopt rules that don't apply to everyone the same but it's also because you can't have you know the rest of the country say okay we're going to go to war and by the way the draft law only applies to new york okay the constitution requires a uniformity across the nation so that's legislative when you make a rule legislatively it has to apply to everybody but it also applies in the enforcement of law the same uniformity is required because that is the ultimate grantor of freedom all the supervision in the world won't be enough though without a strong culture across the department of fairness and commitment to even-handed justice so that's what justice jackson described as the spirit of fair play and decency that should animate the federal prosecutor sounds quaint today doesn't it in this in his memorable turn of phrase even when the government technically loses its case it has really won if justice has been done we want our prosecutors to be aggressive and tenacious in their pursuit of justice but we also want to ensure that justice is ultimately administered dispassionately so one thing i'll say is that the job of the prosecutor is to try the case and attempt to achieve a conviction of guilt but that's when the job of the prosecutor is over in some cases we may express our views as to what the sentence should be but the sentencing belongs to the judge the judicial function and that after the prosecutor wins the case we like that competitiveness we like that spirit and aggressiveness but once the case is won passions must cool and justice in the sentencing phase has to be fair and that's why the sentence is given by the neutral judge now we're all human and like any person a prosecutor can become overly invested in a particular goal prosecutors who devote months and years of their lives to investigating a particular target may become deeply invested in their case and assured of the rightness of their cause when a prosecutor when a prosecution becomes my prosecution particularly if the investigation is highly public or has been acrimonious or if the prosecutor is confident early on that the target has committed a serious crime there's always a temptation to will a prosecution a charge into existence even when the facts the law or the fair-handed administration of justice do not support bringing the charge this risk is inevitable and cannot be avoided simply by hiring as prosecutors only moral people with righteous motivations i am reminded of a passage by c s lewis it may be better to live under robber barons than under omnipotent moral busybodies the robber baron's cruelty may sometimes sleep his cupidity may at some point be satiated but those who torment us for our own good will torment us without end for they do so with the approval of their own conscience they may be more likely to go to heaven i don't know but at the same time likelier to make hell on earth there's yet another reason for having layers of supervision individual prosecutors can sometimes become head hunters it's all too often they're consumed with taking down their target subjecting their decisions to review by detached supervisors ensure the involvement of dispassionate decision makers this was of course the central problem with the independent council statute that justice scalia criticized in morrison versus olson creating an unaccountable head hunter was not some unfortunate byproduct of that statute it was the stated purpose of the statute that was what justice scalia meant by his famous line this wolf comes as a wolf as we went as he went on to explain quote how frightening it must be to have your own independent counsel and staff appointed with nothing else to do but to investigate you into until investigation is no longer worthwhile with whether it is worthwhile not depending upon what such judgments usually hinge on competing responsibilities and to have that counsel and staff decide with no basis for comparison whether what you have done is bad enough willful enough and provable enough to warrant an indictment how admirable the constitutional system that provides the means to avoid such a distortion and how unfortunate the judicial decision that has permitted it now that was a problem that took care of itself it was a statute that democrats applauded until it applied to bill clinton and then they did we did away with it in h.w bush's administration took the heat castigated by all the media for killing the independent council statute and then during the transition bernie nussbaum who lasted about two seconds as he as a white house counsel a fancy new york lawyer came down and he was part of the transition and he came in and he said you have any advice this was while i was my last days as attorney general and i said well i said um i think you should allow the independent council to die its natural death here we took the heat for it we did we did the uh what was had it to be done don't resuscitate it as a republican nothing would please me more but as an american it's a bad statute and he said well we are committed to the most moral and ethical administration and history and we're gonna we are going to uh reenact it so they did and the rest is history by the way if you want a little kick go to c-span i think they took my name off of it but if you put in you know civil lib civiletti special you know independent council statute nadler you'll see a hearing from like 1995 or 6 or whenever the white water thing was going on with ben civility democrat bill barr republican nadler leading the committee about how terrible the independent council statute was and how terrible stock ken starr was and it's a great actually you should you know if you have time look at it because you know all the arguments that we're making here today nowadays were laid out of course the role of the players was he said mr barr i admire you you are very consistent on this question so uh anyway uh it's it's it's fun to watch he anyway so anyway now i said headhunters and that's because as jackson said 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 the cases that need to be prosecuted any erosion and prosecutorial detachment is extraordinarily perilous for as he said 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 a predominant or governing group being attached to the wrong political views or being personally obnoxious to or in any way the to the prosecutor himself and that's what we frequently say i'd like to be able to stand here and say we don't see head hunting in the department of justice and that would not be truthful i see it every day and it's a temptation that the power of prosecution is a heady power and it is a temptation sometimes to go after people rather than crimes and we see that every night you know this country is in serious problems with all the problems with real problems we face in international affairs and domestically when most of our news coverage or what passes for news coverage are you know bloviating talking heads discussing whether some action in washington some action taken by an official constitutes some esoteric crime and you know looking through statute books can we could we you know say that this is a crime because disagreement no longer is enough political disagreement and political debate now you have to call your adversary a criminal and instead of beating them politically you try to put them in jail so we're becoming sort of like an eastern european country where if you're if you're not in power you're in jail or you're a member of the press so now one of the areas that i think there's a problem is the way we interpret statutes these days and we have to recalibrate that if we're ever going to restore the rule of law clarity in the law is indispensable to the rule of law and if a law is malleable then it can be applied differently in different cases and that is the breakdown of law now one of the most irritating developments over the last 50 60 years is equity driving law out of the marketplace if you go and read supreme court decisions the supreme court thinks it's being also and this has been as i say going on for decades instead of articulating a law a rule they say it's the totality of circumstances and it's equity what if you know what was the conscience of the of the fifth vote on the supreme court or and you know they can't articulate the rule but it's that very discipline of being able to universalize the principle that you're applying in a case that ensures the rule of law and that ensures that the person is being treated fairly and it is that process of universalizing it that says i'm only going to apply to this person what i'm willing to do to every other similarly situated person and be able to articulate the rule and we've completely lost that in our law and that's why lawyers are so infuriating beyond their normal uh you know irritating nature which is they can't tell the client what the law is you know well you could go this way it could go that way and that's because their law has broken down and it's broken down because the justices don't feel they have to go through that discipline anymore the nature of judicial power is being debased and we don't you know you can't equity has its uses and its place but it can't be constitutional law and these are some of the points that are similar to made by justice scalia in his article about the rule of law being the law of rules now in recent years the department of justice has sometimes acted like a trade association for prosecutors more like that than than the administrator of a fair system of justice based on clear and sensible rules in case after case we've advanced and defended hyper-aggressive extensions of the criminal law this is wrong and we have to stop doing it now i couldn't believe it you know i'd get in and i'd see some statute and people would say well how are we going to interpret this you know interpret the statute this court over here said this should be limited to such and such are we going to acquiesce in that and adopt that as our interpretation and normally the answer you would get in the department of justice is well that sort of ties us down of course that's the whole point of law that sort of ties us down you know we want you know we want our prosecutors have the broadest possible discretion so we can't buy into that let's leave it loosey-goosey and uh i said well no i mean uh we have to say what the law is and that decision was a good interpretation of the law and it should be adopted the fact that it hems us in and we can't just use this law you know as a utility knife is a good thing but that's not the perspective generally and institutionally recently in the department of justice um we should want a fair system with clear rules that people can understand it does not serve the ends of justice to advocate for fuzzy and manipulable criminal prohibitions and maximize the options of the prosecutors preventing that sort of pro-prosecutor uncertainty is what the ancient rule of leninity is all about i'm sure you know what that is which is if there's vagueness in a law you you interpret it in the most lenient way possible from the standpoint of the defendant and that rule should like likewise inform what we do at the department of justice when we think about the substance of the criminal law advocating for clear and defined prohibitions will sometimes mean that we cannot bring charges against someone whom we believed is engaged in bad conduct but that is what it means to be a government of laws and not men we cannot let our desire to get bad people turn into the functional equivalent of the mad emperor caligula who inscribed criminal laws in tiny script atop the atop a tall pillar where no one could read it to be clear what i'm describing is not the al capone situation where you have someone who has committed multiple crimes and you decide to prosecute that person for only the clearest violation that carries a sufficient penalty i am talking about taking vague statutory language and then applying it to criminal a criminal target in a novel way that is at minimum hardly clear from the statutory text this is inherently unfair because criminal prosecutions are backward looking we charge people with crimes based on past conduct if it was unknown or unclear that the conduct was illegal when the person engaged in it that raises real questions about whether it is fair to prosecute the person criminally for it examples of the department defending these sorts of extreme positions are unfortunately numerous as are the rejections of those arguments by the supreme court these include arguments as varied as the departments insisting that a philadelphia woman violated the chemical weapons convention implementation act implementing the convention on the prohibition of the development production stockpiling and use of chemical weapons she did this by putting chemicals on her neighbor's doorknob as part of an acrimonious love triangle involving the woman's husband the court unanimously rejected that argument in bond versus united states or they argued that a fisherman violated the anti-shredding provisions of the sarbanes-oxley law when he threw undersized grouper over the side of his boat which the supreme court rejected in yates versus the united states or more recently arguing that aids to the governor of new jersey fraudulently quote obtained property from the government when they realigned the lanes on the george washington bridge to create a traffic jam which the supreme court unanimously rejected in kelly versus the united states there are many other examples in fact you know it's interesting when people say that the trump administration is lawless and i usually scratching my head saying you know we we litigate all our stuff we win a lot of it do we go through the process you know what what exactly is lawless about it the fact is that the obama administration had the worst record in the supreme court of any recent administration losing cases and you know our administration so far has been doing you know above average in terms of uh winning in the supreme court so you know i wouldn't say we were lawless but again the obama administration you know had some of the people who were in mueller's office writing their briefs in the supreme court so maybe that explains something yeah very aggressive positions very you know sort of uh uh aggressive and you know we're gonna we're gonna prosecute these people and so forth and then you know they're not growing so much after they get whopped in the supreme court anyway taking a capacious approach to criminal law is not only unfair to the criminal and bad for the department it's corrosive of our political system if criminal statutes are endlessly manipulable and everything becomes a potential crime rather than watch policy experts debate the merits and demerits of a particular policy choice we are treated i anticipated this in my earlier statement we you know these pundits speculating about whether things can be prosecuted 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 these tools are not built to resolve political disputes and it would be a bad development for us to go the way of these third world countries where political parties routinely prosecute their opponents for various ill-defined crimes against the state this is not the stuff of a mature democracy we bet this culture of criminalization when we are not disciplined about what charges we will bring what legal theories we will adopt 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 time again with prosecutors bringing ill-conceived to charges against prominent political figures or launching debilitating investigations that thrust the department of justice 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 continue to do so today to the extent the justice department leaders will permit it and as long as i'm attorney general we're not going to permit it in short it is important for prosecutors at the department of justice to understand that their mission above all above all others is to do justice and that means following the letter of the law and the spirit of fairness sometimes that will mean investing months or years in an investigation and then concluding it is without criminal charges our job is to be just as dogged in preventing injustice as we are in pursuing wrongdoing on this score as in many justice jackson said it best and i'll close with his words the qualities of a good prosecutor are as elusive and as impossible to define as those which mark a gentleman and those who need to be told would not understand it anyway a sensitiveness to fair play and sportsmanship is perhaps the best protection against the abuse of power and the citizens safety lies in the prosecutor who tempers zeal with human kindness who seeks truth and not victims who serves the law and not factional purposes and who above all approaches his task with humility thank you thank you thank you awesome is this so is this on yeah again i'm sorry for those prepared remarks i like these things a lot better you know but so thank you general that was spectacular also profound i think so i have the first question i've got a few from the audience and the minute your duties require you to go home and rest you may do so of course even though he just said that he wouldn't prosecute me just because he's mad at me um so partly what you just said was a a process of a transfer of authority from elected people to civil servants do you see that going on in other parts of the government you know of course but this is the game at the department of justice you know how it's been used as a political football basically the when when the left controls the executive branch uh then no one says anything about the supervision of the lawyers in the department of justice being by the political officials but when the republicans win or conservatives are in charge of the department of justice then all we hear day in and day out is the you know that people we should just stand back and let the career people run the department of justice and you know don't get me wrong i mean a lot of my family are career people in the department of justice i love the department of justice i love the people in the department of justice but as i say the legitimacy in our system comes from political supervision and political accountability should the supreme court have the exclusive power to interpret the constitution yes so this is not my question but i'll sharpen it so the president takes an oath to help me say that uh i think president jackson was correct that each branch has in the first instance the responsibility to interpret the constitution and what they think the constitution means and so if an exec if the president believes that he has the power to do something under the constitution he should be able to to exercise that power and if the court disagrees and orders him not to then he's lost the case that's what i thought uh what's your favorite song to play on the bagpipes i don't know who it is too many there are too many songs there are it's not songs they're called tunes t-u-n-e-s scotland the brave well that's a very common one that's the one i that you see on the video playing scotland the brave but i uh i miss playing the bagpipes uh once when i was attorney general last time you know scalia called the chambers and said to my assistant uh do you think uh the attorney general would like to take a you know quick walk with me around the mall and i said ask justice scalia whether he realizes it's a federal offense to threaten the life of a federal official i say the same thing about playing the bagpipes these days people ask me to play the bagpipes i say you know it's an offense a threat in the life emergency vehicles standing by i think a definition of a gentleman is somebody who knows how to play the bagpipes and does not no i disagree with that played since i was eight years old and you know my parents being academicians and growing up on the upper west side and bella abzug's district in new york we lived in columbia university housing which was great housing overlooking the hudson river and stuff but uh they want you know they said billy it's time that you learn an instrument violin piano i said bagpipes somebody wonders if ballot harvesting is uh constitutional and also how do we go about in this day and age guaranteeing the propriety of our elections well i'm not i you know i know because i'm attorney general i was once head of the office of legal counsel which is sort of a legal beagle office i can't off the top of my head give you authoritative answers on some of these questions i will just say generally i'm very concerned let me draw a distinction between what may pass buster under some recent case law of the supreme court and what really is in accord with the constitutional scheme and the basic principles and sometimes you have to go back to basic principles to understand what some of the some of you know the provisions of the constitution should mean so as i've said you know the whole idea of an election is to have a single expression of will by everybody at the same time based on the same information that's what an election is not an election so we have election day and now we have an election season and not only that it's a season that has like uh extra innings so it's becoming absurd decisions made weeks apart are are not you know the body politic making a sober decision about the state of affairs at one time so we're losing the whole idea of what an election is um and when when people you know try to play games like can you do you have any empirical evidence uh that you know mail-in ballots are you know i have common sense we haven't had it on the scale that's being proposed now so i don't have empirical other than the fact that we've always had voting fraud uh and they're you know there always will be people who attempt to uh to do that i don't have empirical evidence that on this scale uh you know these problems were materialized but what i say to people is why do we vote today the way we do think about it why does this why do people show up at one place where they have a list of people who are eligible to vote you set you show who you are you go behind a curtain why do you go behind a curtain a secret ballot no one else is allowed there why is that a rule coercion undue influence why a secret ballot many reasons you can't sell or buy votes easily if there's a secret ballot you you don't succumb as much to to undo influence or pressure that is all blown away the lessons of the english system before us and the american system and how the vote evolved and how we tried to perfect it and protect its integrity for all this time are just swept away by mail-in voting where you don't have an anonymity your name is connected to that vote and you open the floodgates to coercion and so i don't think harvesting should be permitted personally some states have passed down under the constitution the law set the state set the rules they're permitting harvesting of ballots but it's a potential abuse and uh i go back to your main argument and that is uh the authority of the attorney general comes through the president from the people and so do you sense a uh growing spirit of managing the people managing how they vote managing what they can do for by the government well i think it raises the fundamental question which is this that our constitution was meant for a discerning informed virtuous people and you have to raise the question of whether we still have that in our country but we certainly have forces that are attempting to cultivate uh a dependent people and it's you know it's the same old game it's bred what's our bread and circuses today it's all distraction you know as as uh pascal said it's all about distracting people from anything that's important and principle and what's happening that's why so many people don't pay attention they're distracted they're distracted by you know all the stimulation of their senses that go on and it's becoming and that goes part and parcel with creating dependence so you have more and more people that just don't care you know i was mortif you know you you i saw it today that most people don't know what the holocaust is about in the united states some poll or something i couldn't believe it now i thought they tossed taught holocausts or or concentration camps very well in school because when i was giving a memorial day speech one year i did some research and most high school students if you ask them uh what do you know about world war ii well first they don't know who fought in world war ii who the united states was fighting but then they say what they know about world war ii is about the concentration camps and that we use nuclear weapons against japan those are the two things i said oh constantly at least you learned about the concentration camps yes the internment of the japanese yeah you should visit some high schools today if mueller's team mueller's dream whatever you call it destroyed information who's responsible and what i think they're talking about wiping phones who's responsible what what what consequences can there be well i don't want to get into that particular thing the you know the appropriate people in the department are taking a look at that and we'll see we'll see where that goes what are the constitutional hurdles for forbidding a church from meeting during covet 19 what are the constitutional hurdles too forbidding what in other words okay so you know there's a you know it's this um the rule right now is articulated by the supreme court some people might disagree with it but uh in the sense that it doesn't go far enough in protecting religion but the current standard is that you cannot you you can place restrictions on religion the exercise of religion as long as you don't discriminate against religion and apply the same restrictions on everybody else that is similarly situated so you can't allow people to go to theaters and get together in commercial establishments or other kinds of activities and then prohibit churches from doing it and you know some of the states were going that far so that's the basic hurdle you have to get over now i know you're from michigan and therefore you're particularly sensitive to the caprice of governor's regulations i i very amused because the press gets all huffy and puffy about you know bill barr believes in strong executive power ooh you know he's a he's a fascist or something like that and yet they said which you know i won't even respond to but they couldn't be happier with governor that governors are exercising kind of power are they exercising executive power in many states there are no statutes that uh you know or the legislatures bowed out of the picture right and uh just letting the governors do do what they want to do now uh what i've said is yes there is executive power by its very nature does come and should fill the void right at the beginning of any crisis like this and some crises like war uh you you do need a strong component of executive leadership but once the emergency nature of it starts to abate the legislature should give a little bit more guidance like yeah you can do this for 30 years 30 days and then come back to us and you know if you don't like what we're doing you're doing you know we'll exercise a little more control over it but there has been very little of that and most of the governors do what bureaucrats always do which is they act you know they defy common sense and a lot of what they do um and uh you know they they enjoy you know they they uh treat free citizens as babies that you know can't take responsibility for themselves and others so i was saying oh lord you know we have to give business people an opportunity tell them what the rules are you know the masks which rule of masks do you have this month and uh you know tell us what to tell the business people what the rules are and then let them try to adapt their business to that and and you'll have ingenuity and people will at least have the freedom to try to earn a living but but but you know putting a national lockdown stay-at-home orders is like house arrest it's not it's the it's you know other than slavery which was a different kind of restraint this is the greatest intrusion on civil liberties in american history and so you know i do disagree with the supreme we supported this case you know we we did get a lot of the churches uh the states to to ease up on the churches and and you know we'd write letters to the governors and the gov governors would comply but this case my view was it doesn't take a rocket scientist to realize that an artificial cap of 10 doesn't make any sense when you're talking about saint patrick's cathedral compared to a small country church and so one of the rules under the constitution is you have to sort of calibrate whatever burden you're going to place on religion you're going to have to take account of the circumstances and make it as narrow as possible to achieve your end and so we said you know how about of just a percentage of the fire marshal occupancy standard you know and the supreme court 5-4 vote wouldn't uh wouldn't go along with that because they wanted to say that well you have to give a lot of latitude to governors in these crisis and i agree you should give a lot of latitude but uh you know we we have epidemics and pandemics this is a very serious one a grave one but uh they they come and and you know just because something is a medical crisis it doesn't give a complete blank check to to executive rule that leads me to wonder so i read that there have been north of 75 000 suicides during the shutdown and what mechanism is there or should there be in the government to take care of all these ancillary facts effects here's my problem which is i have great respect for the medical profession the scariest day in a lawyer's life is when he realizes the medical profession is really pretty much the same as the legal profession okay they're human beings they put their pants on you know one leg at a time they're right sometimes they're wrong other times they disagree with each other there's some good doctors there's some bad doctors but just like lawyers doctors some will will they're specialists they will they will view a broad social problem an issue through a set of blinders in a sense so you know your doctor might say to you bill if you want to live 20 years longer you know you should just do this this this this and this and he might be right but i don't want to pay those costs to live 20 years longer i'd rather take my chances now i understand their externalities here and you you you know you can't threaten other people's life but the point is that you know you have to balance that against a lot of other factors and the point you made is exactly what was not done but was self-evident anyone who had the power of logic which is yes doctor you might be right but just think of all the collateral consequences and the costs of that and that is not science okay it is the generalist and the people and the representatives of the entire community that should be making these balancing acts it is not dictated by science so all this nonsense about how this is dictated something is dictated by science is nonsense okay so but so anyway i mean suicides is just the tip of the iceberg the overdoses are out of control they're getting back up again after the first time in decades this administration actually started flattening it out and bringing it down a little on opioids going back up again and now with methamphetamine cheap methamphetamine now swamping the country and forms of opioid that are extremely deadly fentanyl synthetic opioids we now have the overdose deaths going up we have domestic violence getting out of control i'm sure that the these uh shutting down of the economy and and telling everyone to stay in their house that's contributed to violent crime going up in many of our cities so when you look at the interruption of education especially for disadvantaged children in the inner city is devastating these costs are massive and you know it's the how you balance these things is not dictate you know i'm sorry a person in the white coat is not the grand seer who who can come up with the right decision for society a free people makes its decision through its elected representatives this is from a senior at the hillsdale academy they're very nerdy down there what is the relationship between the rule of law and economic prosperity uh one is the foundation of the other the rule of law is the foundation of economic process is the rule of law uh uh is uh the foundation of civilization including economic prosperity and that's why these so-called black lives matter people now that as a proposition who can quarrel with the proposition black lives matter but they're not interested in black lives they're interested in they're interested in props a small number of blacks who were killed by police during conflict with police usually less than a dozen a year who they can use as props to achieve a much broader political agenda but i view the question of black lives as not only keeping people alive but also having prosperity and flourishing in their communities and most uh deaths in this in in in the inner city of young black males below the age of 44 the leading cause of death is being shot by another black person and that's crime and all these great you know the left likes to talk about dealing with the root causes but all their solutions depend on peaceful streets at the end of the day you know education after after-school activities all this stuff depends on peace if your school is run by a gang it's not going to get you anywhere and so as i say the foundation of all human progress is the rule of law you've enjoyed excellent treatment by the media and certainly they are relative certainly they are attentive do you think you know for example newspapers in the 19th century in the 18th century were often founded with party names in them something federalist in the you know arizona republican is the press more partisan now what what what do you make of it is it different in kind from what we've had in the past well i'm not no i mean uh well they're more ignorant than we've had in the past but you know you you go back the press has gone i'm not an expert on the history of the press but uh yes when you used to have when de tocqueville wrote you used to have small towns that today couldn't support one newspaper supporting 10 12 15 newspapers and yes they were factional and they were political and then you know to the extent there was a national press there wasn't much of one but at the extent there was it was sometimes rapidly partisan and they were quite harsh and so forth uh and then they but then more recently they've gone through they went through this long period where they were objective it was a profession journalism and they were a profession and they held themselves out to be objective and they were journalists and they were you know trying to tell the truth uh or that's what they told us and that has gone by the boards long time ago as i've said you know as soon as they started working the first time i heard the word narrative there was like some period of time a few years ago where the word narrative just started popping up everywhere with a narrative and a narrative and that i said that's it we've had it because the whole words suggest there's no objective truth that it's everyone's perception of the truth you have your narrative you have your narrative who's to say whose narrative is correct and so there's been they don't care that they're not telling the truth because they don't believe truth is a meaningful concept it's about the pursuit of power and so i'd be more tolerant of it if they were informed people but they're not i you know in the old days even you know the great liberal journalists were very educated erudite people one last uh you know actually so the freedom of the press is something i have it's something you have is something we all have because it was written at a time when you had pamphleteers and anyone could get their views out in some ways we're going back to that with the internet which has many very bad uh effects but the fact of the matter is that this idea that the media someone who puts on a press thing somehow has more rights than somebody else to freedom of speech or that what they write or put out is somehow legitimate journalism and what you write is is not is nonsense so one last youtube and google are private companies big private companies and they have an announced policy that they will not permit anything on their platform that calls into question the world health organization guidelines and so last week a three-month-old article by scott atlas who's recently described disgraced himself by going to work in the white house was taken down and that means that youtube and google made a decision that his you know of course we now know he's not really a scientist because because somebody see it and said he wasn't but what about that what is is that constitutional does the degree of control collected in those companies make them subject to some law than other than just doing what they want well you know i think it's constitutional in the sense that as long as it's not state action involved because private people you know have the have the ability to do that what you really have to ask yourself is the market power they have the power that they've attained over time in the market and whether you know their questions you know whether whether we can inject more competition and more diversity into the market you know the tocqueville famously talked about the real risk of the of the united states and democracy generally was slipping into soft despotism the kind of world we see about us now and he said he thought the two things that could save the united states from this was religion and the freedom of the press but what he said about the freedom of the press was it's it's very diversity it wasn't he had a very low opinion of the press the tocqueville he didn't think that the freedom of the press would would save the united states because you know these guardians of the truth and expose are out there on the front line protecting our liberties far from it but what he said was the sheer diversity because when you get into a position where there's one person you know one force or power lashing the multitude you get the militant majority the galvanized majority which was the great threat and as you know under framers thought that there were different ways they were preventing you know the coalescence of these different factions and uh nowadays it's it's hard to imagine a more concentrated situation where people are all fed the same crap and you can galvanize a majority like that in this country at least a numeric majority i love it when fox news shows all the talking points that every single station uses they all the exact and i wouldn't be surprised like they have a conference call at the beginning every day okay what's the message of the day and they use exactly the same language that's bad now those are a lot of that is public airwaves i think we have to take a look at that myself but uh you know it's the same thing with with virtually all media and now on the on the internet you have these vast concentrations of power that are bigger and more powerful than virtually every nation in the world with the exception of a handful and you know they think that they are the arbiters of truth and and control the message that people get anyway so i think we must thank the attorney general thank you thanks you're a blessing

Channel: Hillsdale College

Views: 445,940

Rating: 4.8026381 out of 5

Keywords: hillsdale, politics, constitution, equality, liberty, freedom, free speech, lecture, learn, america

Id: I0Ho5_DiRdc

Length: 98min 59sec (5939 seconds)

Published: Mon Sep 21 2020

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