The Washington Post - 20.02.2020

thursday, february 20 , 2020. the washington post eZ re a1 9

THURSDAY Opinion

BY GEORGE J. TERWILLIGER III

A

ttorney General William P. Barr is under assault for what his critics decry as im- proper interference in the sentencing recommendation for Roger Stone. But the claim that decisions by career prosecutors should in essence be unreviewable by those appointed to leadership positions in the Justice Department is not just wrong; it is also irresponsible. Barr wasn’t intervening inappropriately. He was doing his job. An editorial in The Post said the attorney general should “leave it to the professionals.” What a dangerous notion that is. I served in the Justice Department for 15 years, half of that time as a career prosecutor. From time to time, I was overruled on decisions involving my cases. My judgment was better for the benefit of oversight and supervision, including from the politically appointed U.S. attorney. Whether direction came from even higher authority is unknown to me, but if it did, I would see it no differently. That is how a chain of command must work. I also served in a Republican administration as deputy attorney general and acting attorney general. In that capacity, I recall no one decrying interference when I overruled the recommendation of line prosecutors and the department’s criminal division that a then-sitting U.S. senator should be indicted. He was a Democrat. I also approved the prosecution of another sitting senator. He was a Republican. Those matters came up through the bureaucracy because they were highly visible and politically controversial. But the exercise of my authority also flowed downhill when the circumstances merited inter-

vention. I took control of one politically charged case — despite the risk that others would claim I was interfering for political gain — because the department was taking deserved criticism for doing a poor job. As the No. 2 official, I knew what the Justice Department did was ultimately my responsibility — full stop. Imagine a government agency, or any organiza- tion, where there is no supervision of front-line personnel and no ultimate authority bearing responsibility for institutional decisions. That w ould be absurd anywhere. But that is especially true in the case of the Justice Department because all of its critical operations involve exercising judgment in the context of broad legal authority. Should we investigate or not? If so, for what and for how long? Is there sufficient evidence to conclude that a case can be proved beyond a reasonable doubt? If we prevail, what is a just sentence? Who should we recommend be par- doned or have a sentence commuted? Such decisions in a society g rounded in individual liberty a re among the most intrusive possible. Thus, supervision of those career-level decisions is not only permitted but also a necessity, including review at times by the highest authority. When I served under Barr as deputy attorney general, I would from time to time rib him by saying: “Don’t worry, Bill. There are only 6, lawyers out there today doing things in your name.” I did so to remind both of us of our responsibility to supervise what was going on “out there.” It is impossible to oversee everything, of course, but by becoming involved in particular cases, we maintained our authority and set param- eters for decisions in innumerable other matters.

The attorney general and other appointed leaders are not there to be potted plants. The decisions of the dedicated professionals who are the heart and soul of the department merit respect and a substantial degree of deference. But those decisions must also be subject to review. The higher the profile of a case, the more deserving it is of high-level attention, because the public will measure the department by its actions in such matters. There is no reason not to take Barr at his word that he found the Stone sentencing recommendation to be excessive and acted to correct that. In their widely cited but little analyzed letter, former Justice Department lawyers claim that “it is unheard of for the Department’s top leaders to overrule line prosecutors, who are following estab- lished policies, in order to give preferential treatment to a close associate of the President.” It is certainly not unheard of for top leaders to overrule line prosecutors. The criticism added by the next phrase is a classic example of presenting a conclu- sory allegation (giving preferential treatment) as if it were a fact. If that was a technique learned on the job in indictments written by these prosecutors, supervision was clearly lacking. A more risk-averse attorney general might have let the recommendation stand and avoided a political hot potato. The American people might want to think twice before concluding that is the kind of attorney general the Justice Department should have.

the writer, a partner at the law firm McGuirewoods, served in the Justice department, including as deputy attorney general and acting attorney general.

Barr was only doing his job

cliff owen/associated Press Attorney General William P. Barr on Feb. 6 in Washington.

BY GEORGE T. CONWAY III

N

ot for nothing did President Trump’s first White House counsel give him the nickname “King Kong.” Former W hite House counsel D on- ald McGahn, who resisted Trump when he sought to violate the law and sometimes engaged in “epic” “shouting matches” with him, reportedly s elected the sobriquet t o con- note Trump’s “volcanic anger” a nd “emotion- al decision-making.” But as Trump’s behavior this week demon- strates, the moniker fits for another reason as well. It reflects Trump’s desire to escape constraints — in particular, legal constraints. That Kong-like urge was illustrated by two develop- ments: the president’s latest executive clem- ency spree and his continued attacks against the federal judiciary. Trump revels in issuing pardons, because that power is essentially absolute. The Consti- tution sets out no standards for granting pardons. They require no consent from Con- gress, and courts can’t s econd-guess them. They also offer instant gratification to a president who desperately craves it. As one source close to Trump told Axios last year: “What he enjoys m ost about t his job i s finding things he has absolute power over,” which is why he gets “a kick out of pardons,” and the fact that “he could pardon anybody he wants and people would come to him to court him and b eg him.” Trump’s specific invocations of the pardon power, moreover, appear unwedded to any notion of mercy or public good; they are not guided by the ordinary process of careful review. Rather, they are impulsive expres- sions of Trumpian s pite a nd self-interest. His commutation o f the s entence o f former Illinois governor Rod Blagojevich, for example, seemed intended to wound former F BI director James B. Comey. “Another Comey and gang deal!” T rump tweeted Wednesday about the Blagojevich prosecution. The fired FBI director is represented by Patrick Fitzgerald, who prosecuted Blagojevich.

If exercising the pardon power reflects Trump’s delight in flexing unbounded presi- dential muscle, his attacks against federal judges underscore his fury a t the m ost signifi- cant remaining potential legal constraint Trump now faces — the j udiciary. He lashed out at the judiciary again last week when he disgracefully — and, in trade- mark fashion, falsely — called o ut U.S. D istrict Judge Amy Berman Jackson, for supposedly having put Trump’s criminal former cam- paign chairman, Paul Manafort, in solitary confinement. (It w asn’t her decision.) He f ollowed up with tweets t his week quot- ing Fox News legal analyst Andrew Napolita- no, asserting that it was “pretty obvious” t hat another of Trump’s c riminal associates, R oger Stone, should receive a new trial over questions about the jury forewoman’s i mpartiality and that “almost any judge in the country” would order one. Trump’s ostensible purpose was to intimi- date Jackson into going easy on Stone, over whose sentencing she will preside. Ye t Trump’s b eef has a lways been not merely w ith individual federal judges who don’t bend to his will, but with the idea of an independent judiciary generally. According to the book “A Warning,” b illed as having been written by a n anonymous administration official, Trump doesn’t really see why Article III judges should exist: In the wake of litigation losses his administration suffered in 2017, he asked aides, “Can we just get rid of t he j udges?” The president has good reason to ask. The courts hold the power potentially to force disclosure of Trump’s tax returns and other financial information, to require him to rely on actual appropriations to build the border wall, a nd t o otherwise conform h is c onduct t o the l aw. Trump’s attacks against the judiciary reflect his view that only he should be able to decide what he can and cannot do. That’s what he really meant when, as part of his response to Attorney General William P. Barr’s efforts to curb him, he pointed out that, “I’m actually, I guess, the chief law enforcement officer of the country.” Some p eople were taken aback by Trump’s assertion, but he was technically correct: As president, he sits at the apex of the federal law enforcement apparatus, and bears ultimate constitutional responsibility for it. The problem is that Trump’s understanding of what it means to be the chief law enforcement officer, like his view of his office generally, is flawed and corrupt. The president’s oath is to “faithfully execute the Office of President of the United States,” and to “preserve, protect and defend the Constitu- tion of the United States.” His job, says Article II, is to “take care that the laws be faithfully executed.” With those words, t he C onstitution endows a president with the right and obligation to enforce the laws. It doesn’t grant him the power to do whatever he wants. A nd it doesn’t mean that Trump must be a llowed to rampage through the legal landscape like King Kong, dangerously unchecked and unbound.

the writer is a lawyer and is also an adviser to the lincoln Project, an anti-tr ump super Pac.

A president

driven by spite

and self-interest

Trump’s attacks against the

judiciary reflect his view that

only he should be able to decide

what he can and cannot do.

ty.) If anything, the evidence suggests that too much religion is bad for a country. Twitter: @MaxBoot

I

t has become conventional wisdom on the right that religion is under assault from secular liberals — and that the waning of faith is bad for America. Attorney General William P. B arr, a conservative Catholic, summed up this alarmist outlook last fall during an incendiary speech at Notre Dame. He bemoaned “the steady erosion of our traditional Judeo- Christian moral system” and the “growing ascendancy of secularism and the doctrine of moral relativism. By any honest assessment,” he thundered, “the conse- quences of this moral upheaval have been grim.” He went on to cite statistics on rising out-of-wedlock births (“illegitimacy”), along with “record levels of depression and mental illness, dispirited young people, soaring suicide rates, increasing numbers of angry and alienated young males, an increase in senseless vio- lence, and a deadly drug epidemic.” This tendentious reading of U.S. history ignores reality. By most metrics, the country is far better off than when Barr was a boy. He was born in 1950, when segregation was legal and homosexuality was not. Consider some of the improvements since 1960. Real per capita gross domestic product has increased 216 p ercent, from $18,268 in the f irst quarter of 1960 to $57,719 in the first quarter of 2019, driven in part by a 230 percent increase in output per hour for non-farm workers as of 2015. The share of 25- to 34-year-olds who have graduated from college has tripled as of

Infant mortality has fallen nearly 80 percent as
of 2018. The homicide r ate was u nchanged as of 2018 —
five m urders per 100, 000 people — but that d isguises a
vast improvement since the homicide rate peaked at

4 per 100, 000 in 1980. While the number of
out-of-wedlock births was more than seven times
higher in 2018, the share of single mothers has
declined since 199 7 because more unmarried parents
live together. The abortion rate soared after Roe
v. Wade in 1973 but has fallen more than 50 percent
since 1980. How does Barr account for these improve-
ments if the United States is on the road to ruin?
Barr’s simplistic idea that the country is better off if
it is more religious is based on faith, not evidence. My
research associate Sherry Cho compiled statistics on
the 10 countries with the highest percentage of reli-
gious people and the 10 countries with the lowest
percentage based on a 2017 WIN/Gallup International
survey of 68 countries. The least religious countries are
either Asian nations where monotheism never took
hold (China, Japan) or Western nations such as Austra-
lia, Sweden and Belgium, where secularism is much
more advanced than in the United States. The most

religious countries represent various faiths: There are predominantly Christian countries (the Philippines, Papua New Guinea, Armenia), Muslim Pakistan, Bud- dhist Thailand, Hindu India — and countries of mixed faiths (Nigeria, Ivory Coast, Ghana, Fiji). Indicators suggest that the less religious nations are much better off. Average GDP per capita in the least religious countries is more than five times higher, while the unemployment rate is more than twice as low and the poverty rate is 1½ times lower. The homicide rate is five times lower. Life expectancy is 22 percent higher, and infant mortality is 1,0 00 percent lower — in part because the least religious nations spend 50 percent more per capita on health care. The least religious countries are also better educated, with a mean 12 years o f schooling per c apita vs. 7½ years in the most religious countries. Income inequality is 24 percent lower in the least religious countries, and gender inequality (as measured by the World Bank) is more than 400 percent lower. Finally, the least religious countries are freer, with an average score of 87.6 from Freedom House, compared to 56.5 for the most religious countries. Gallup notes that “levels of religiosity diminish as income and education levels of the interviewees increase.” Put a nother way: D eclining religiosity is not the result of a leftist plot. Capitalism has done more than the Supreme Court to break down traditional beliefs. The United States is unusual not because religious observance has declined over the years but because it remains much higher than expected. A 2018 Pew Research Center survey found that 55 percent of American adults say they pray daily, compared with only 22 percent of Europeans. U.S. church attendance is down from its peak in 1960 but about the same level as in 1940. Pew concluded that “the U.S. is the only country out of 102 examined in the study that has higher-than-average levels of both prayer and wealth.” But, perversely, the United States does worse in critical areas — such as the rate of homicides by firearms and the rate of children living in single-parent households — than Western nations that are less religious. How does Barr explain this if he thinks religion is a social elixir? Fundamentalists may be unhappy that religious observance has declined over the decades, but the data shows that, by most measurements, life has gotten much better for most people. There is little evidence that a decline in religiosity leads to a decline in society — or that high levels of religiosity strengthen society. (Remember, Rome fell after it converted to Christiani-

Max Boot

Yes, we are less religious. We’re also better off.

THE WASHINGTON POST

Less religious nations are better off How the top 10 most religious nations compare with the top 10 least religious nations.

Sources: Top 10 most and least religious countries from WIN/Gallup International End of Year Survey 2017. These questions were asked in 6 8 countries. Other data from International Monetary Fund, the United Nations Development Program, Human Development Reports and U.S. Census Bureau’s 2017 estimates.

Gross domestic product per capita

Unemployment rate

Poverty rate

Homicide rate per 100 ,000 people

Life expectancy (years)

Infant mortality per 1,000 births

Years at school (mean)

Income Inequality Higher numbers mean more unequal

Gender Inequality Higher numbers mean more unequal

Current health expenditure Percent of GDP

Fr eedom Index Higher score is better

$7,

7.9%

29.2%

5.

66.

36.

7.

38.

0.

4.

56.

Top 10 most religious countries

$44,27 8

4.4%

13.7%

1.

80.

3.

12.

31.

0.

9.

87.

Top 10 least religious countries

The Washington Post - 20.02.2020

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