Thank you very much. I am very honored to have been invited to speak and i really ouappreciate your comments. Its great to get to know you. Ive been reading you over the years and it isow a delight to have spent the evening. Im very pleased to be able to speak to you at this Hillsdale College of celebration. I am a great admirer of hillsdale. As i was saying i dont get to make many speeches like this. This. Im usually talking about crime rates and that kind of thing. But i wanted to speak at hillsdale because its one of the few institutions of Higher Learning where its worthwhile spending money to get an education at. [applause] and i mean that sincerely. Sadly many coaches these days dont even teach the constitution much less celebrated. One out of every four americans dont even know who we fought the revolution against. That number is increasing steadily as our educational institutions fail us. But at hillsdale you recognize the principles are asked to look into today and important and vital today to the survival of our great experiment here, freedom. I appreciate your observance and all you do for Civic Education and education period in this country. When many people think of the virtues of the constitution, they first mentioned the bill of rights of course. Thats the talking point of the constitution. And i guess that makes sense, the great guarantees, freedom of speech, freedom of religion, especially the right to keep and bear arms are critical safeguards to the liberty. But as president reagan used to remind people, the soviet union had a constitution and included some of these lofty sounding rights. Ultimately however those are just empty words because there was no rule of law in societ a y to enforce them. It is the linchpin of American Freedom and the f critical guarantee comes from theaw constitutions structure of separation of powers. There are many elements in the rule of law and safeguards built into the constitution but tonight i want to talk about the separation of powers. The framers recognized by dividing the legislative executive judicial powers each significant but each limited. That is the genius of the constitution and ultimately it is more important to securing liberty than the bill of rights. After all, the bill of rights is a set off amendments to the original constitution, and i know you all know that the framers didnt think that it was needed. They didnt need to include into the constitution and express enumeration of rights. T today i want to talk about the power of the constitution allocating to the executive branch particularly in the area of criminal justice. The Supreme Court has correctly held under article two of the constitution the executive discretion to decide whether to prosecute individuals for suspected crimes. We all know as the executive vested with the responsibility for seeing that the laws are faithfully executed, the power to execute and enforce the law is an executive function altogether and that means that its to determine when to exercise the prosecutorial power. The only significant limitation on the discretion comes from otherr provisions in the constitution. For example, the United States attorney could not decide to prosecute only people of a particular race or a particular religion. But aside from that limitation, which thankfully remains only a hypothetical in our country, the executive has broad discretion to decide whether to bring criminal prosecutions in particular cases. The key question then is how the executive should exercise its prosecutorial discretion. 80 years agors, this spring onf my predecessors in this job, then attorney general Robert Jackson gave a famous speech to the conference of the United States attorneys in which he described the proper role and qualities of federal prosecuto prosecutors. Justice jackson was one of only a handful who ultimately ended up as a justice on the Supreme Court. Much has changed in the decades since Justice Jacksons remarks. But he was a man of uncommon wisdom and its appropriate to consider his views today and how they apply in our modern era. Federal prosecutors possess tremendous power that is necessary to enforce the law and punish wrongdoing but i would like any other power carries with it an inherent potential for abuse. Justice jackson recognized this and as he put it, the prosecutor has more control over the life, liberty and reputation than any other person in america. Prosecutors have the power to investigate people, interview their friends and they can do so on the basis of mere suspicion of wrongdoing. G. People facing federal investigations often see their lives reducedre to rubble befora charge is even filed. Justice jackson wasnt exaggeratings when he said whie the prosecutor at his best is one of the most magnificent forces in our society, when he acts of malice or other base motives, hes one of the worst. Think about the power of the prosecutor. Like him the corporation itses largely a discretionary call by prosecutors. In todays world, going after a corporation or a white collar defendant is like shooting fish in a barrel. There is no contest. You threaten a company wit and the prosecutors know that is just a question. Thats all within the control of a prosecutor. The power as Justice Jackson said, the power that the prosecutor has it can strike the citizens not just the individual strength but all the force of the government itself and that has to be carefully calibrated and carefully supervised because left unchecked it has the power to inflict far more harm than it prevents. The most basic check on prosecutorial power is political accountability. It is counterintuitive to say that as we write we strive to maintain a a political system of criminal justice the political accountability and politics is what ultimately ensures our system does its work the recognition of the many interest and values at stake. Government power completely divorced from political accountability is tyranny. Justice jackson understood this and unders to and meexplained confirmation of the United States attorneys and Senior Department of justice officials to legitimize the exercises of sovereign power. You are required to win the expression of confidence in your character by the legislator and executive branches of the government before assuming the responsibilities of a federal prosecutor. In the decades since Justice Jacksons remarks, it is common place to argue that prosecutorial decisions are legitimate only when they are made by the lowest level line prosecutor the career prosecutor handling any given case ironically some of those critics see no problem to campaign to remake state and local prosecutoriall offices in the image with which often teinvolves overwriting the judgment of the Police Officers but aside from that hypocrisy the notion that prosecutors should make the final decision within the department of justice is completely wrong and antithetical to the basic values that undergirds our entire system. Justice system doesnt watch over society with politics biden Agency Within the executive branch a form of government where the power is ultimately imposed in the people acting through their elected president and representatives. [applause] i include many applause lines in my prepared speeches had i known this would be a fireside gat i would of cut the shorter i will give you something to clap that later. [laughter] the men and women who of ultimate authority in the Justice Department are the ones that elected officials have confirmed that responsibility by president ial appointment and Senate Confirmation that blessing by the two political branches gave these officials democratic legitimacy that career officials do not possess. The same process that produces these officials also holds them accountable that they can fire Senior Department justice officials that will and elected congress can summon them to the peoples representatives in the pub moon republic because the use officials with the president and congress they also have the stature to resist these pressures were necessary and can take the heat that the department of justice does or does not do. The bureaucracy is not elected nor replaced by those who are. Because these officials are installed by the democratic process, they are the most equipped to make the judgment calls concerning how we should field our prosecutorial power. As Justice Scalia observed and is most admired in his judicial and the dissent morrison versus olson almost all investigated their prosecutorial decisions including the ultimatet decision whether after a technical violation of the law has been found, prosecution is warranted involving the balancing of innumerable practical considerations. Those need to be balanced and each and every case as Justice Scalia pointed out let justice be done but it doesnt compare with reality. It would do far more good than harm and to ensure that every technical violation of every criminal law is tracked down and prosecuted to the end degree. Our system works best led by a considerationn of alternative sanctions all the things that supervisors tried must be someone who does not have a narrow focus but to pursue a general agenda. That person need not be a prosecutor someone that can balance vigorous prosecution with other competing values and the attorney general senior doj officials and us attorneys aren political in a good and necessary sense. Indeed aside from the importance of not only decoupling lawenforcement from the moderating forces of politics all authority down to the most junior officials does not even make sense as a matter of basic management. Name on Successful Organization or institution at the lowest level employeeem decisions are deemed single. They are are not only the most Junior Members set the agenda could be a good philosophy Montessori Preschool not a way to run a federal agency. Good leaders at the department of justicefe it does not mean plainly to put those subordinates want to do one of the more annoying things that i hear and face that has been going on for decades, a strange idea that political officials interfere in investigations. What do you mean by interfere . Under the law all prosecutorial for is vested in the attorney general. These people are agents of the attorney general. Fbi agent whose agent do you thank you are . I say this in a prompt display but that is the chain of authority and legitimacy in the department of justice. What am i interfering with . The will of the most Junior Member of the organization and has an idea he wants to do something and what makes that single synced . Akthat makes the judgment the next layer up to the next to the next each handing out to a broader experience and a broader perspective what makes the attorney handling a particular case so sacrosanct i guess the idea is they are not political and judgments more people to cold for many and my experience in the department into different areas they are not a political necessarily. Some are and can check politics at the door andli others cant and can be partisan. They are not a political necessarysu for human beings and less experienced individuals and their supervisors. This is the president and the congress and the president expects when something is wrong in the department of justice the broadcast to stop somewhere and that is at the top the statute i referenced was usc section five oh nine all functions of other offices of the department of justice all actions of agencies and employees of the department of justice are vested in the attorney general. And because the attorney generals ultimately are accountable for every decision the department makes i and my predecessors have an obligation to ensure that we make the correct decision the attorney general the assistant attorneys general are not figureheads we are supervisors. Our job is to supervise anything less is the abdication of active engagement is by senior official essential to the rule of law. The essence of the rule of law is whatever will you apply in one cases what you i in a similar case treating each person equally before the law how the department enforces the law. We should not prosecute someone for wire fraud in manhattan not equally pursue in madison or montgomery but allow prosecutors in one division with the theory of another division were not deployed against someone who is engaged and indistinguishable conduct. We must strive for consistency and that is another reason why centralized Senior Leadership exists to harmonize the disparate views of many prosecutors in a consistent policy for the department i was interviewed by aio member of the press for a radio interview i got a question like where you interfering in the case of a sobriety think we have one attorney d general . Ninety districts, 50 states, you think the us attorney should be a lot into themselves is for uniformity of lot of consistency in the application of law and someone that has the entire perspective of the playing field. And the cameramen were nodding their head. This makes sense. [laughter] jackson saidsa we must proceed uniformity of policy which is necessary to the stage of federal law but thats more involved uniformity is what protects us. At the end of the day our system is the crystallization of the golden w rule in the political system are not willing to do to somebody else to have done to me ultimately that is the foundation of freedom. [applause] we see that in the legislative branch the legislature in the United States cant make one law that applies to new york and another to california. And then you can have actions in the country and building a majority to adopt rules that dont apply to everyone the same but also because he can how the rest of the country to say we will go to war and the draft law only applies to new york. It requires uniformity across the nation so when you make a rule legislatively has to apply to everybody. But also applies with the enforcement of law at the same uniformity is required because thats the ultimate guarantor of freedom on his vision of the world is not enough without a strong culture. So that is what Justice Jackson described as the spirit of fair play and to animate and even when the government technically rules results case it has want of justice has been done. We want our prosecutors to be aggressive and tenacious in their pursuit of justice but we also want to ensure justice is ultimately administered as passionately so the one thing i will say the job prosecutor is to try the case and attempt to achieve a conviction of guilt but thats when the job of the prosecutors over. In some cases we may express our views the sentencing belongs to the judge of the judicial function and after the prosecutor wins the case we like that competitiveness in that spirit and aggressiveness but once the case has one passions must cool and justice in the sentencing phase has to be fair thats what the sentence is given by the neutral judge. We are all human and like any person a prosecutor can become overly invested at they are devoting months or years to their lives to a target they become deeply invested in their case and assured of the rightness of their cause. And a prosecution becomes my prosecution particularly if the investigation is highly public or acrimonious or was confident early on the target committed a serious crime, there is a the temptation to will a prosecution awi charge into existence even when the father handed administration of justice do not support bringing the charge for this risk is inevitable and cannot be avoided simply by hiring as prosecutors. Only moral people with righteous motivations. Im reminded of a passage by cs lewis it may be better to live in her parents and omnipotent busybodies. [laughter] robber barons t may sometimes sleep at some point it may be satiated but those that torment us for our owncu good will torment us without and for they do so with you of their own conscienc conscience. [applause] they may be more likely to go to heaven, i know. [laughter] but at the same time likelier to make hell on earth. [laughter] there is yet another reason to have layers of supervision individual prosecutors sometimes can become headhunters all too often they are consumed with taking down their target subjecting decisions to review by detached supervisors with the dispassionate decisionmakers this is the central problem with the independent counsel statute that scalia criticized morrison versus olson the unaccountable headhunter is not an unfortunate byproduct but a stated purpose that is what Justice Scalia meant by his famous line this school comes as a whole as he went on to explain how frightening it inmust be to have your own independent counsel and staff appointed with nothing else to do but investigate you until investigation is no longer worthwhile. Whether it is worthwhile not depending on what such judgments usually hinge on with competing responsibilities and to have that counsel and staff decide with no basis for comparison whether what you have done is bad enough or willful enough to pull enough to warrantnt and indictment how admirable the constitutional system provides the means is such a distortion and how unfortunate it has been permitted. Thats a problem that took care of itself a statute thatun democrats applied to bill clinton we get away with it with each W Bush Administration to take the heat castigated for killing the independent counsel statute and then during the transition with white House Counsel part of the transition and that this is part of the advice i said i thank you should allow the independent decounsel to die a natural death dont resuscitate it. As a a republican nothing else would please me more but as an american it is a bad statute. We are a committed to the most moral and Ethical Administration in history and we were reenacted. They did and the rest is history. [laughter] by the way if you want to kic kick, go to cspan. I th