Note: this piece was originally published at Berkeley News, and features Checks & Balances member Orin Kerr.
Berkeley News: In your experience, is it common for top-level officials at the Justice Department to intervene in a criminal case to change the sentencing recommended by line prosecutors?
Orin Kerr: No. It would be rare for the front office, like the Attorney General’s office, to get involved in any particular prosecution. Sometimes the higher-ups would have interest and might establish some role in particular cases. But the norm is for the political types to stay completely out of individual cases and certainly not get involved in any granular level.
But we’re seeing an argument made by some experts that the attorney general or the president have a right to engage in cases as they see fit. They’re the top executives — does it stand to reason that they have the authority?
The attorney general certainly has the power to interfere. And the president can tell an attorney general to interfere. The problem is that this is an obvious conflict of interest. We’re talking about somebody, a close adviser to the president who was charged with a crime for protecting the president. And so it’s not a typical case where the attorney general might have an interest in that.
It’s an obvious conflict of interest for the president to be involved or for the attorney general to be trying to protect the president.
And the context here matters.
The Department of Justice — and Attorney General Barr, and apparently the president — are engaging in this case at the granular level. What’s different about the context?
The president fired his former attorney general (Jeff Sessions) for not giving him personal protection, for not being personally loyal enough to the president’s personal interests and concerns. When he hired Barr, he was looking for someone to protect him personally.
So there is a history here and the concern that the president is improperly using his power — not to make proper enforcement decisions about what laws were violated and who should be punished, but personal decisions about what helps Donald Trump as a person.