President Trump on Tuesday tweeted that federal prosecutors’ sentencing recommendation for Roger Stone was ridiculous. Soon after the Department of Justice intervened and withdrew the recommendation. Several former Robert Mueller stooges who were prosecuting Stone then resigned. As expected, the media and NeverTrumpers pounced, questioning loudly whether “the justice department could remain free from political influence.”
Sadly, Attorney General Bill Barr joined the chorus, though to be charitable, it is likely that he means something slightly different when he’s saying this than most D.C. commentators are suggesting. Regardless, all of the voices objecting to Trump’s intervention are wrong.
The Department of Justice should never be free from political influence. If it is, then the people have no say over their government. This is among the first principles of republican government.
The reasoning goes like this: men suffer from a lack of justice in nature, so we form governments of various kinds. So long as men must rule over men, the justice established by men will never be perfect. This is why our government includes the prerogative power—why the president has the power to pardon and the Supreme Court has equity power—to serve as a relief valve of sorts for the difference between actual justice and the justice dispensed by governments.
Nevertheless, we need governments to prosecute, decide, and enforce justice of some imperfect, conventional kind.
This conventional justice demands consent. Being what we are and equal as we are, our governments derive “their just powers from the consent of the governed.” Thus justice and human equality require republican government—“government of the people, by the people, and for the people.” This means all of government must be under officials responsive in some way to the people through elections.
So we arrive at this principle. Justice is established by government, and government must be based on consent. Consent is given through political debate and elections. Conventional justice is thus open to political debate, and elected officials must be able to influence it. This is especially true for the prosecution and enforcement of justice, but even judges and their decisions cannot be completely cut off from consent. When it comes to decisions by the justice system and actions of the Justice Department, all justice is political.
This is a deeply American principle. “We the people” ordained and established our Constitution to “establish justice.” It’s our government and it’s our justice. It says so, right there at the start of our great document.
Is this dangerous? Certainly. This is why the “science of politics” dictates separated powers with checks and balances. But the Justice Department is decidedly executive in nature and must be under the chief executive. It must be responsive to the political pressures of the president because he is responsive to the political pressures from us, the people. Ultimately, we hold the Justice Department responsible for the justice it pursues and enforces. This responsibility is the very definition of politics.
As Madison wrote in Federalist 51, “justice is the end of government.” “In framing a government which is to be administered by men over men,” he wrote, “the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.”
No doubt the Justice Department can do what it wants with citizens. There should be no doubt that we oblige it to control itself by placing it under our elected president. Justice belongs to us, not the prosecutors of the Justice Department.
Most of the hysteria over the importance of an independent Justice Department is born of a progressive love of government administration divorced from politics. To the Left, everything in government is somehow “apolitical” and an election—or politics—is not supposed to get in the way of how they are running the country.
Progressives think justice and government are too complex for the common man, so we need to be ruled by experts—professional government bureaucrats who don’t need to be bothered by what the deplorable people think. That is not the rule of law; that’s the rule of expertise. Don’t worry, they tell us, the “patriotism” of the bureaucrats will keep them honest and just; the people don’t need to control them.
Having watched the recent love affair with the “interagency process” and the Vindman twins, we know just how much these patriotic, career bureaucrats care about honesty, justice, and the results of elections.
Still, there is certainly no shortage of conservative influencers who will parrot the progressive line. Many are on Fox News. I am tempted to put “conservative” and “influencer” in scare quotes, but these people really are both of those things. They seek to “conserve” a regime with an unresponsive Justice Department because it is the status quo. They are also influential, as the last few decades of Republican politicians demonstrate.
Worst of all, there are real, republican arguments wrapped up in the rhetoric. First, republican government does require an independent judiciary. But this means the judges and courts, not the Justice Department. The two are often confused.
Second, in normal circumstances, the prosecution of justice ought to be as impartial as possible. Just as an unresponsive Justice Department is unjust, so too is a Justice Department influenced by the whims of the powerful. It isn’t hard to see how the latter could be unfair or corrupt. This is probably what AG Barr meant when he said at his confirmation “the essential role of the attorney general is to keep law enforcement, the criminal process sacrosanct to make sure there is no political interference in it.”
Barr’s error in the present moment is that he does not seem to recognize our abnormal circumstances. The Justice Department clearly is not impartial. The people know this and they are tired of it. That is why they elected Trump, in part, to fix the Justice Department.
In cases of injustice, Trump can intervene with a full pardon if necessary, but he can also comment on or direct sentencing recommendations if he so chooses. Ironically, if Trump cannot do the latter, and can do the former, greater injustice might result. Barr should consider our circumstances and the first principles of republican government before saying things that undercut the president, who in this case is entirely right.
Many on the Right have a tendency to talk too much about the Constitution and first principles. President Trump, on the other hand, has done well because he tends instead to talk about real problems—real problems like a corrupt Department of Justice. In this case, perhaps we can do both.
The Justice Department is out of line, and our man in the Oval Office is there to put them back on track. Thank God the Justice Department is still responsive to political influence.