Barr’s Remarks on Obama and Biden Make an Important Point
Excerpt: It is simply a fact that there is a salient distinction between abuses of power and penal offenses. This is a distinction I’ve tried to draw for years. It was a constant lesson of the Obama presidency, in which prosecutorial discretion, along with the government’s bureaucratic and administrative processes, were systematically politicized and weaponized against opponents and dissenters. And, as Barr observed today, it was the lesson the Supreme Court restated to the Justice Department in recently reversing the “Bridge-gate” convictions arising out of abuses of power by former Governor Chris Christie’s staffers in New Jersey: “Not every abuse of power, no matter how outrageous, is necessarily a federal crime.” Having watched the hardball that investigators played against Trump associates, Trump partisans want comeuppance. It is natural, especially for the non-lawyers among them, to maintain that there is no satisfactory form of accountability other than criminal prosecution. Nevertheless, we must bear in mind, no matter how difficult doing so may be, that we react so negatively to the use of investigative processes as a political weapon because it is wrong. It is wrong even if you rationalize that the abuse of power against your side legitimizes responding in kind. (...) We should never encourage prosecutors to get creative. It is a bedrock constitutional requirement that criminal statutes be phrased in wording clear enough to put a person of average intelligence on notice of what is prohibited. When prosecutors push the envelope, they flout this principle. When they target for prosecution behavior that is not really within the ambit of what the cited penal statute was meant to proscribe, they usurp Congress’s authority to write the laws. [McCarthy speaks directly to the ultimate question of how to be just in a competitive democratic society. I think this approach is the best one, but wonder if it can work if only one side follows this principle. I suspect it needs to be multi-sided, or it will fail. And, this essay’s final two sentences should give us all pause. Ron P.]
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