Explaining Trump’s DOJ weaponization scandals
Why it matters who decides whether to indict or audit you
This week saw one of the most important investigative news stories of the year: The New York Times’ Michael Schmidt uncovering secret legal memos about Donald Trump’s efforts “to weaponize the criminal justice system for political ends” during his time in the White House.
The full article is here: As President, Trump Demanded Investigations of Foes. He Often Got Them (gift link).
While many of the different pieces have previously been reported, Schmidt unearths the internal White House memos, new first-hand accounts, and connects extensive, previously unknown details into what should be one of the largest political scandals since Watergate.
Here are the facts:
Starting in late-2017 and early-2018, then-President Trump aggressively pressured federal agencies like the Department of Justice and the IRS to investigate and prosecute rivals and critics.
Lawyers and staff in the White House and agencies worked tirelessly to counteract this interference and to convince Trump that meddling in prosecutions was a potentially disastrous path that could lead to impeachment or electoral defeat.
Despite that pushback, Trump often eventually got what he wanted. A wide variety of Trump’s critics and opponents faced investigations, lawsuits, and prosecutions by the federal government, usually with no legal basis.
The most striking part of the Times investigation is the interactive list of rivals who faced investigations and retaliation at the behest of Trump. Some lowlights:
Former FBI director James Comey faced multiple DOJ investigations and a “highly unusual and invasive audit” by the IRS. FBI deputy director Andrew McCabe was investigated by the Justice Department, fired from his job, and also subjected to an IRS audit, eventually spending “over a million dollars in legal fees.”
Under pressure from Trump, Attorney General Bill Barr worked aggressively to push criminal investigations of former secretary of state John Kerry.
A number of reporters from CNN, The Washington Post, and The New York Times had their phone and email records seized by the Justice Department in response to coverage Trump didn’t like.
Why does it matter if the president gives orders to prosecute you?
So why should you care who’s calling the shots on who the DOJ investigates or who gets audited by the IRS? Why does it matter if decisions are made by the president or by some career prosecutor you’ve never heard of?
Think about it this way:
Preserving our freedom, in a law enforcement context, has a lot to do with predictability. Living in a free society doesn’t mean we’re free to do whatever we want. You can’t drive 100 miles an hour down a residential street or trick your neighbors into investing in an elaborate ponzi scheme. Those are illegal. And the consequences for breaking those laws — up to losing your freedom — need to be predictable. Enforced by people seeking to apply the rules fairly and rigorously, not to use the rules for their own interests.
Whether you lose your license needs to be about how fast you were actually driving, not whether the police officer agrees with your bumper stickers. Whether you go to jail for defrauding your neighbors needs to reflect the nature of the ponzi scheme, not whether or not you were willing to cut the investigator in on the proceeds.
That predictability — that impartiality — helps ensure our freedom. Otherwise, we’re all at the whims of people with power.
If Trump succeeds in turning the law in this country into a pure expression of political might, the target list won’t stop with Mitt Romney or Joe Biden. Eventually, enforcement at every level is likely to become increasingly politicized — as we see in other countries where authoritarianism takes hold.
In other words, even if Donald Trump doesn’t use the law to seek retribution against you personally (although no guarantees — especially if you are a journalist, activist, or business leader), this corruption eventually will leach down to all of our freedom. This isn’t a bureaucratic dispute over who should be allowed to give orders to whom. This is a fight over the bedrock principle that, in a democracy, people in power should not be able to exact retribution or persecute political enemies. That the law should be applied fairly, neutrally, and without animus or favor.
As Supreme Court Justice Robert Jackson famously put it:
These fundamental ideas “signify about all there is of the principle that ours is a government of laws, not of men, and that we submit ourselves to rulers only if under rules.”
The worst part is, once law enforcement becomes generally politicized, it’s very, very difficult to undo. Looking around the world, weaponizing the law is part of how autocrats maintain their grasp on power.
Viktor Orbán is firmly entrenched in Hungary not just because he twisted the electoral rules in his favor, but also because he uses the facade of law to quash and retaliate against critics and independent media. Nicolás Maduro has regularly jailed — or forced into exile — his electoral opponents on trumped-up legal charges. Vladimir Putin cannot be dislodged from power in Russia in part because he uses the pretext of law enforcement to imprison and murder his opponents, people like Alexei Navalny.
How these scandals compare to Trump’s legal cases
The inevitable bad-faith rejoinder to all this: What about the prosecutions of Trump? Aren’t Democrats already doing this?”
Take that question seriously for a second, it helps illustrate why the “who makes prosecutorial decisions” piece is so critical. Because the answer is pretty clearly, no, the legal system has not been weaponized against Donald Trump.
My colleagues Kristy Parker, Anne Tindall, and Justin Florence — veteran lawyers from the worlds of DOJ, congressional oversight, and White House counsel, respectively — have a 30-page guide: How to tell whether a government investigation or prosecution is “weaponized.”
In it, they encourage us to ask three simple questions:
1. What is the publicly available evidence in the case and similarly situated cases?
In the various criminal cases against Donald Trump, legal experts tend to agree the evidence against him is somewhere between strong and overwhelming. (Even what many experts considered to be the weakest case, the New York fraud trial, resulted in a unanimous conviction on 34 counts by a jury of his peers.)
Meanwhile, many of the investigations Trump pushed were, as the Times puts it, based only on “conspiracy theories.”
2. Does the Justice Department or local prosecutor’s office have safeguards in place to avoid politicization and does it appear to be following them?
Against Trump, the DOJ appears to have observed the relevant norms and policies intended to keep political considerations out of investigative and prosecutive decisions to avoid prejudicing a jury pool. For example, Attorney General Merrick Garland has prioritized issuing and observing a strict policy governing contacts with the White House and has strictly adhered to rules on publicly commenting on investigations and the timing of investigative and prosecutive actions. President Biden has strenuously avoided even commenting on Trump’s indictments, insisting that the decisions are up to the Department of Justice.
(Side note: In addition to Donald Trump, a Republican, the Department of Justice under Garland has indicted a powerful Democratic senator, a powerful Democratic congressman, the son of the sitting Democratic president, and now — just this week — the Democratic mayor of the largest city in the country. Hardly sounds like a pattern of partisan decision making to me.)
When Trump was in the Oval Office, we now know he consistently ignored all safeguards — including the impassioned objections of his own staff and legal advisors.
3. What do the external and internal checks against abuse indicate?
To date, the various decisions to prosecute Trump have been consistently validated by courts, judges, and internal and external watchdogs. Even the Supreme Court — in crafting a brand-new standard of immunity for Donald Trump — did not reject the substance of the allegations against him or conclude that he is actually immune, just that he could not be prosecuted for certain “official acts.” Just recently, yet another grand jury indicted Trump on a superseding indictment expunged of acts the Supreme Court deemed official.
In contrast, of the many enemies that Donald Trump pushed to be investigated — often successfully — precisely zero were ever convicted. Of anything.
This may sound like a reassurance, that none of Trump’s many weaponization threats while in the White House led to jail time. But it’s actually the opposite.
The substantive emptiness of Trump’s legal retaliation shows just how arbitrary the tools of justice can be when abused. When decisions about who gets investigated or audited are political in nature — and not factual or legal — doing nothing wrong is no guarantee that any of us will be spared.
Read more about what it would look like with an autocrat in the White House in Amanda Carpenter’s series: “How it happens here.”
Things would be so much worse in a second Trump term
So what would this all look like if Trump returns to the White House?
The core takeaway from the Times’ reporting: many people in Trump’s administration worked tirelessly to constrain his worst instincts — and still he secured an unprecedented number of politicized investigations.
This time around, Trump has learned his lesson. As part of his Authoritarian Playbook for 2025, he pledges to surround himself with devoted loyalists willing to test and almost certainly break the law and violate the Constitution in maximal pursuit of power. Next time, there will be no secret memos arguing against weaponizing the Justice Department.
He has made retribution a centerpiece of his campaign, promising that his perceived enemies “will be prosecuted to the fullest extent of the law.”
“WHEN I WIN, those people that CHEATED will be prosecuted to the fullest extent of the Law, which will include long term prison sentences… [this] extends to Lawyers, Political Operatives, Donors, Illegal Voters, & Corrupt Election Officials.”
-Donald Trump, Truth Social, September 7th, 2024
Finally, the Supreme Court majority’s new stance on presidential power in the Trump immunity case provides further cover for Trump himself. Georgetown Law professor Marty Lederman explores the White House memos uncovered by the New York Times look in this light: “A Vivid Illustration of the Impact of the Roberts Court's Radical New "Unitary Executive" Doctrine.”
He writes:
The memos are interesting for several reasons. What most struck me, however, was just how obsolete those memos might now be, just six years later, because of intervening legal developments — namely, two radical opinions of the Supreme Court, both written by Chief Justice John Roberts. Those opinions, if taken at face value, appear to confirm Donald Trump's view — rejected by McGahn — not only that the President is constitutionally entitled to control DOJ's criminal law enforcement investigations and prosecutions, and not only that the President himself could perform those functions, but also that Congress may not prohibit the President from directing DOJ officials to abuse their statutory authorities for unlawful ends.
That cannot, of course, be right. And I hope that one day it is formally repudiated. In the meantime, however, the Trump/McGahn episode offers a stark illustration of just how far the Court has strayed from established (and proper) understandings of the nature of the "executive power" the Constitution assigns to the President.
In other words, the Roberts Court has now suggested an approach even more radical than where Trump’s White House lawyers were willing to go just a few years ago.
A big win against political violence and intimidation
In case you missed it, a jury ruled in favor of our clients against the ringleader of the 2020 “Trump Train” that attacked a Biden-Harris campaign bus on a Texas highway.
Blake Jelley explains:
In short, the jury found the attack on the Biden-Harris campaign bus to be in violation of state and federal law, including the 1871 Ku Klux Klan Act. This was a win for our clients, yes, but it is also a major victory for American civil rights, reaffirming that all citizens are protected against politically motivated threats, intimidation, and force.
What else we’re tracking:
Is the U.S. House prepared for a catastrophic, mass casualty event? Is it even prepared for a few untimely vacancies? Beau Tremitiere and Elise Wirkus look at the potential risks arising from unexpected deaths of sitting members and what can be done to strengthen the continuity of Congress.
Will Trump cheat in the 2024 election? Ian Bassin joined Jennifer Rubin’s Green Room podcast to discuss. Hint: “there's really no best case scenario."
“What would Project 2025 do for (or to) journalism?” Neiman Labs looks at the implications of proposals like defunding NPR and PBS and kicking reporters out of the White House.
State legislative elections in several swing states have high stakes for how our elections are run, writes Votebeat’s Carrie Levine.
A group of former Republican elected officials are leading an effort to boost confidence in Pennsylvania’s election process.
This week Mitch McConnell scolded fellow Republicans for their “cult of personality” around Viktor Orbán. (An explainer on what he’s referring to, here: “The MAGA model for returning to power and dismantling democracy.”)
The Washington Post’s Matt Bai considers how Donald Trump is now the oldest presidential candidate in history, with an eye to a specific possibility: “The presidency of JD Vance.”
How should people of faith think about the threat of authoritarianism? This week, Jim Wallis’ The Soul of the Nation podcast tackles the Authoritarian Playbook.
You make it sound simple, but it's a beautifully constructed post.