No attorney general can deliver on Trump's retaliation agenda

Pam Bondi couldn’t defeat the American people — the next attorney general won’t either

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Former Attorney General Pam Bondi did everything President Trump asked her to do with gusto. Trump’s primary objective for his Attorney General (AG) was to use federal law enforcement to punish his perceived enemies and opponents, and Bondi tried hard — and largely failed — to do just that.

She indicted former FBI Director James Comey, New York AG Letitia James, and a member of Congress conducting ICE oversight. She launched investigations of Federal Reserve Chair Jerome Powell, former impeachment prosecutor and now senator Adam Schiff, former CIA Director John Brennan, and Democratic members of Congress who restated the basic principle that military personnel can disobey orders they know are unlawful. The list goes on. After most of these cases were dismissed by federal district court judges, rejected by grand juries in unprecedented numbers, or languished in the investigative phase, Trump fired Bondi, reportedly because he believes she wasn’t strong enough in her resolve to pursue his vendettas or smart enough to win the cases.

It’s hardly surprising that this is Trump’s view of one of the many women he has scapegoated for his failures. But as a factual matter, it’s wrong. Bondi didn’t suffer from reticence or incompetence. She failed thanks to the American people — the grand jurors, trial jurors, and judges who refused to let meritless cases proceed. These are guardrails the president cannot fire, reassign, or intimidate into submission.

Read more — A guide to understanding the federal grand jury

Todd Blanche, Trump’s personal attorney and now Acting Attorney General, will run into the same wall. So will whoever comes next. This is good news for democracy, but it comes under a dark cloud. While Trump’s retribution campaign is failing, a Justice Department that should be protecting ordinary Americans has abandoned that mission in futile pursuit of the president’s vendettas.

Bondi was willing, just unsuccessful

Protect Democracy has documented a sustained pattern by Bondi of investigating and prosecuting Trump’s political opponents and critics. The cases have typically involved public smearing of the subjects in violation of the Department’s Principles of Federal Prosecution and Constitutional due process, direct interference from the president and other political appointees in charging decisions, overriding the judgment of career professionals, and an outright lack of evidence of any criminal wrongdoing.

None of this seemingly gave Bondi any pause. And if she ever seriously entertained any of the concerns her DOJ subordinates communicated to her about losing meritless cases in court, she proved herself willing to brush them aside when the president told her she should.

Read more — Tracking retaliatory use of arrests, prosecutions, and investigations by the Trump administration

Bondi was stopped by the legal system’s guardrails, not her own limitations

Of course, Bondi did lose a lot of cases in court. And she lost just as often before she could even get a case started. But a more skillful or aggressive lawyer would not have fared better. The Comey and James cases were both widely criticized as lacking evidence of the commission of any crimes and were dismissed because the district court held that the U.S. Attorney who obtained the indictments was unlawfully appointed. The Justice Department appealed the dismissals and has repeatedly attempted — and failed — to re-indict Ms. James.

This is of a piece with the role grand jurors have played in thwarting the Justice Department’s retaliation agenda by rejecting an unprecedented number of indictments. After years in which grand juries issued no-bills — refusals to approve charges — in single-digit numbers out of more than 150,000 cases pursued, grand juries during the second Trump administration have rejected charges in dozens of cases all over the country. Trial jurors have also been a significant roadblock, acquitting people facing dubious charges arising out of protests against the Trump administration’s mass deportation campaign. In Washington, D.C., for example, a jury acquitted a former federal employee who was charged with misdemeanor assault (downgraded from a felony after a grand jury refused to indict) for throwing a Subway sandwich at a Customs and Border Patrol (CBP) agent. After the trial, one juror told the media that people in the courtroom had a hard time keeping a “straight face” listening to the government’s evidence. “I thought we’d be out of there quickly,” the juror said of deliberations, because “[t]his case had no grounding.”

This reality is starting to sink in with some Trump appointees, who are closing cases and dropping charges rather than continuing to be humiliated in court. To take one recent example, after a grand jury unanimously refused to indict the Democratic members of Congress who spoke out about disobeying unlawful military orders, D.C. U.S. Attorney Jeanine Pirro ended the investigation instead of making another attempt to secure an indictment.

That said, the danger isn’t over. Acting AG Blanche has already announced a legally dubious indictment of the Southern Poverty Law Center — apparently in retaliation for the organization’s designation of certain Trump allies as “hate groups.” And he followed a few days later by announcing yet another indictment of Comey, this time for allegedly threatening to assassinate Trump via a message communicated in seashells and posted on social media. Legal experts immediately pronounced the indictment deficient on First Amendment grounds.

The hardships these indictments cause to the defendants should not be underestimated. But no AG, however committed or clever, is likely to have much success getting factually empty cases past American juries. And the Trump administration cannot secure indictments and win convictions without the cooperation of the very citizens it’s trying to intimidate and punish. Notably, the government has no right to appeal grand jury no-bills (although it can try again) or trial jury acquittals; here, the people have the last word. The administration of criminal justice is one realm where the American people have significant power over an autocratic president, are using it to great effect, and are showing no sign of changing course.

Bondi seriously damaged the Justice Department’s ability to engage in legitimate law enforcement

Yet, even as ordinary Americans are succeeding in blocking Trump’s illegal retaliation agenda in court, they remain its primary victims outside of it. As she was pursuing — and losing — retaliatory and vindictive prosecutions, Bondi decimated the ranks of competent career professionals in both the Justice Department and the FBI and upended the Department’s legitimate law enforcement mission. During her tenure, more than 16,000 employees, including experienced prosecutors and FBI agents, were fired or resigned. The Justice Department’s Public Integrity Section — the unit that specialized in public corruption and white-collar prosecutions — has been effectively shut down. The Criminal Section of the Civil Rights Division, which prosecuted law enforcement misconduct and hate crimes cases, has also been gutted.

This loss of law enforcement expertise and capacity, together with the Trump administration’s focus on its political agenda of immigration crackdowns and political retaliation, has led to a precipitous decline in enforcing drug, white collar, public corruption, and national security crimes, among others. ProPublica reported that the Trump Justice Department “closed more than 23,000 criminal cases in the first six months” of the administration, a marked increase over previous administrations. Prosecutions in areas from drug trafficking, government procurement fraud, terrorism, and national security have all declined sharply.

None of this is consistent with keeping the American people safe from violent crime or protecting them from fraud, corruption, and other threats to their financial security and environment. And it is not a recipe for another Attorney General to win more cases of any kind. Instead, by continuing to pursue baseless and retaliatory cases, Trump’s Attorney General will inevitably force out more of the ethical prosecutors who remain. Indeed, that has already happened during Blanche’s tenure, as a top career prosecutor in Miami was removed from overseeing the investigation of former CIA Director John Brennan after she reportedly expressed doubts about its legal viability.

A reason for optimism, and a warning

Whether the next Attorney General remains Todd Blanche or Trump nominates another loyalist to continue pursuing his retribution campaign, the American people and other institutional actors will almost certainly keep blocking the Justice Department’s illegal actions. This should be a point of inspiration and real cause for hope that our democracy can survive — one of the best we have been given in the last two years. But every day that the Justice Department remains an instrument of presidential vengeance, the harder it will be to rebuild an agency worthy of the very people who — throughout this federal dereliction of duty — have done so much themselves to protect justice.