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Although enormous, AG’s prosecutorial power is not unchecked

October 26, 2020

In public remarks in mid-September, U.S. Attorney General William Barr drew considerable attention when he asserted that on matters of federal prosecution, he is in charge. “What exactly am I interfering with?” he asked at a talk, alluding to complaints he improperly intervened in a handful of high-profile cases. “Under the law, all prosecutorial power is invested in the attorney general.”

U.S. Attorney General William Barr

U.S. Attorney General William Barr

Getty Images News / Drew Angerer

An ABA Legal Fact Check, released earlier this month, examines the historical and legal foundations for Barr’s assertion, and found that the U.S. attorney general has considerable legal authority to make decisions within the Department of Justice, including overruling career prosecutors.

Since Congress established the Office of Attorney General as a part-time, one-person shop with the Judiciary Act of 1789, it has grown to be akin to the world’s largest law firm, with roughly 108,000 employees and a budget of nearly $30 billion, including that of the nation’s 93 U.S. attorneys. The fact check spotlights how the attorney general, who is a presidential appointee subject to U.S. Senate confirmation, historically has navigated between the office’s political and legal duties.

In 1888, the U.S. Supreme Court acknowledged the authority invested in the office. “We are not insensible to the enormous power and its capacity for evil thus reposed in (the Justice Department),” the court said, adding: “if restrictions are to be placed upon the exercise of this authority … it is for the legislative body (Congress) which created the office to enact them.”

Still, courts have some capacity to check the power of the attorney general. Like other prosecutors, the attorney general would have to respond to challenges by defendants that their prosecution has a discriminatory purpose or effect under the post-Civil War 14th Amendment giving all persons “equal justice of the laws.” The burden to prove selective prosecution falls upon the defendant. 

In 1940, then-Attorney General Robert Jackson, later a U.S. Supreme Court justice, spoke to federal prosecutors with remarks often cited as timeless advice for attorneys general and other prosecutors. “The prosecutor has more control over life, liberty and reputation than any other person in America,” Jackson said. “His discretion is tremendous.”

As the new ABA Legal Fact Check concludes, Barr has an argument for asserting that “all prosecutorial power” rests with him. But if challenged, certain decisions could be subject to court review.

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