Attorney General William Barr said Wednesday evening “other than slavery, which was a different kind of restraint,” coronavirus lockdowns were the “greatest intrusion on civil liberties in American history.”
Barr’s comments came during a Constitution Day celebration at Hillsdale College, commemorating the date in 1789 when the Constitution was signed by the Framers in Philadelphia.
Throughout the coronavirus pandemic, Barr has expressed alarm at the restrictions imposed by state authorities on First Amendment rights, particularly the freedom of religion.
In April, Barr’s Department of Justice (DOJ) issued a memorandum to all U.S. attorneys to “be on the lookout for state and local directives that could be violating the constitutional rights and civil liberties of individual citizens.”
He explained that while there might be “reasonable and temporary restrictions” on some First Amendment rights for the sake of public health, they should not become an “overbearing infringement.”
The DOJ’s Civil Rights Division subsequently took a stand against state and local governments that were restricting religious services to an extreme extent. As Breitbart News reported, the division’s interventions often prompted a relaxation of the rules.
Earlier this week, a federal judge ruled that Pennsylvania’s coronavirus lockdowns were unconstitutional. While the state’s actions may have been “undertaken with the good intention of addressing a public health emergency,” Judge William Stickman IV ruled, “even in an emergency, the authority of government is not unfettered. The liberties protected by the Constitution are not fair-weather freedoms — in place when times are good but able to be cast aside in times of trouble.”
Stickman, 41, is an appointee of President Donald Trump.
Barr’s comments came in addition to prepared remarks in which he criticized DOJ prosecutors for abusing their power, and defended the intervention of senior DOJ leadership in the decisions made by lower-level prosecutors.
Barr said (as prepared for delivery):
The most basic check on prosecutorial power is politics. It is counter-intuitive 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 politics is tyranny.
Line prosecutors, by contrast, are generally part of the permanent bureaucracy. They do not have the political legitimacy to be the public face of 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 is an election — and the bureaucracy is neither elected nor easily replaced by those who are.
Name one successful organization where the lowest level employees’ decisions are deemed sacrosanct. There aren’t any. Letting the most junior members set the agenda might be a good philosophy for a Montessori preschool, but it’s no way to run a federal agency. Good leaders at the Justice Department—as at any organization—need to trust and support their subordinates. But that does not mean blindly deferring to whatever those subordinates want to do.
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 to similar cases. 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 the division down the hall would not deploy against someone who engaged in indistinguishable conduct.
Taking a capacious approach to criminal law is not only unfair to criminal defendants and bad for the Justice Department’s track record at the Supreme Court, it is corrosive to our political system. If criminal statutes are endlessly manipulable, then everything becomes a potential crime.
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 in a cage. These tools are not built to resolve political disputes and it would be a decidedly bad development for us to go the way of third world nations where new administrations routinely prosecute their predecessors for various ill-defined crimes against the state. The political winners ritually prosecuting the political losers is not the stuff of a mature democracy.
Barr’s comments come as critics accuse him and the president of interfering in the prosecution of former National Security Advisor Michael Flynn, and in the sentencing of former Trump associate Roger Stone.
CNN anchor Don Lemon was flabbergasted: “I don’t know what to say,” he said, in reporting Barr’s remarks.
Joel B. Pollak is Senior Editor-at-Large at Breitbart News and the host of Breitbart News Sunday on Sirius XM Patriot on Sunday evenings from 7 p.m. to 10 p.m. ET (4 p.m. to 7 p.m. PT). His new book, RED NOVEMBER, tells the story of the 2020 Democratic presidential primary from a conservative perspective. He is a winner of the 2018 Robert Novak Journalism Alumni Fellowship. Follow him on Twitter at @joelpollak.