U.S. Attorney General William Barr can’t seem to get out of the headlines. Maybe he doesn’t want to.
Just last week, the Wall Street Journal reported that Barr suggested to federal prosecutors that they consider charging protesters with sedition — an archaic criminal charge that hasn’t been regularly used by federal authorities since the McCarthy era. Barr also reportedly mused about finding a way to prosecute Seattle Mayor Jenny Durkan for establishing a police-free protest zone in her city. Then, in a speech at Hillsdale College, Barr defended his penchant for overruling prosecutors, comparing them to children in a Montessori school.
For any normal attorney general, the recent controversies would have marked a crisis accompanied by demands that he resign and serious speculation that he would be forced to do so. Not so for Barr, who clearly enjoys President Donald Trump’s support. Barr, more than any attorney general in memory, is inserting himself into the business of criminal prosecution by proposing unorthodox strategies that serve the president’s political ends.
Start with the sedition prosecution proposal. To my mind, it’s the most shocking of Barr’s statements. Sedition is, roughly speaking, the crime of either rebelling against the government or inciting other people to do so. It’s the sort of crime that weak governments enforce against their citizens when the government is facing an existential threat — or thinks it is.
Sedition prosecutions in the U.S. have a particularly shameful history. The 1798 Sedition Act was used in a nakedly partisan manner by John Adams’s Federalist administration to prosecute Republican newspaper editors. Dozens were jailed and fined. Although the law was never formally struck down by the courts, it has come to be a model of the kind of law that violates free speech.
The Sedition Act of 1918 was not much better. Passed under conditions of wartime hysteria, it was used to prosecute more than 2,000 people, most of whom spoke against World War I. As a result, we got some of the earliest modern free speech opinions issued by the U.S. Supreme Court, most notably from the pen of Justice Oliver Wendell Holmes.
The current version of sedition law is the Smith Act, which became law in 1940 and was used well into the 1950s. It prohibits advocating for the violent overthrow of the federal government. Its targets were mostly communists, with the occasional anarchist or fascist prosecuted, too. The law generated a highly problematic Supreme Court precedent, Dennis v. U.S., in which the justices upheld the law as applied to the senior leadership of the Communist Party USA. The really important lasting opinion from that case is a dissent by Justice William O. Douglas pointing out that the Communists were being punished for espousing ideas.
To prosecute protesters for sedition today would require showing that they engaged in conduct aimed at the overthrow of the government and was likely to cause imminent harm. Even if that could somehow be proven in court — highly doubtful — the implicit message would be that people protesting racial injustice are trying to overthrow the U.S. government. It would be hard to imagine a more outrageous attempt to politicize the criminal justice system.
As for the Seattle mayor, it is clearly within the discretion of local authorities to create free-speech zones in which the dangers of confrontation between police and protesters are reduced. To be sure, if a government official knew that private citizens were doing violence to other private citizens and told the police to stand down, that would be highly problematic. It might even possibly violate civil rights, to the extent that the government might be implicated as a cooperative actor in the suppression of speech. But there is no reason to believe that anyone’s civil rights were being violated by virtue of the Seattle zone. Barr’s comments look like an attempt to get the Department of Justice to engage in naked, partisan political intimidation.
As for his remarks on overruling prosecutors, Barr is certainly correct that, as a matter of formal law, he has the authority to intervene in any prosecution brought under the auspices of the Department of Justice. Yet the tradition of the department, hard won in the years since Watergate, has been to respect the independent judgment of U.S. attorneys and career prosecutors. The reason for this is precisely to avoid the appearance or reality of partisan political interference in criminal justice investigation and prosecution. Barr’s comments fly in the face of this Department of Justice tradition.
It seems highly unlikely that anyone will actually be prosecuted for sedition by this Department of Justice, and Durkan can rest assured she won’t be, either. But the harm to the independence of the criminal justice system has already been done.
Noah Feldman is a Bloomberg Opinion columnist and host of the podcast “Deep Background.” He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”
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