By Emily Bazelon,Marco Hernandez,Mattathias Schwartz and Bill Marsh
It has become commonplace for Donald Trump to talk about how he will use the Justice Department to punish his enemies should he regain the presidency. He routinely calls for prosecuting his current opponent, Vice President Kamala Harris, and regularly accuses her and President Biden of weaponizing the Justice Department against him. Though there is no evidence that Biden or Harris had any involvement in the charges Trump faces, relating to the 2020 election and mishandling classified documents, he frequently asserts that these cases justify his plans for retribution.
Trump’s threats raise questions about what restraints could prevent him from following through. Since Watergate, when Richard Nixon resigned under threat of impeachment for meddling in an F.B.I. investigation, American presidents have taken pains to distance the White House from the Justice Department’s decisions about whom to investigate and prosecute. (The exception to this was Trump during his first term.)
But only norms and precedents, not laws, prevent this. In our system, the attorney general and the director of the F.B.I. sit within the executive branch and answer to the president.
How might a politically motivated prosecution actually unfold? The steps below show exactly how Trump could make his threats real — all while staying within the constitutional limits on presidential power.
Step 1
Appoint Loyalists
If he is re-elected, Trump is almost certain to nominate loyalists to the top positions in the Justice Department, starting with the attorney general.
This would give him control over a vast machinery of criminal enforcement.
One of the most powerful appointees within the Justice Department is the director of the F.B.I., who ordinarily serves a 10-year term. But as president, Trump could break that norm and fire the current F.B.I. director, Christopher Wray. He fired Wray’s predecessor, James Comey, in 2017.
Trump would also be likely to replace all or many of the 93 U.S. attorneys and assistant attorneys general who help enforce federal law, an expanse that encompasses I.R.S. tax rules, Treasury Department sanctions against oligarchs and governments, antitrust cases and air and water regulations from the E.P.A.
If Republicans have a strong majority in the Senate, they are likely to confirm Trump’s nominees.
Checks on Trump’s Power If Republicans have a very thin margin, or if Democrats are in control, the Senate could block Trump’s appointments in hopes of forcing more moderate choices. But there’s a limit to what they could do …
… because Trump could use the vacancies act to fill the department’s top ranks, without Senate confirmation, for up to 300 days at the start of an administration. He would be limited to a pool of senior Justice Department employees and Senate-confirmed officials, but still….
…Trump’s appointees could then change the D.O.J. rules that limit contact between the department and the White House to prevent partisan directives from affecting criminal investigations. This would open the door to unfettered communication.
For a complete overhaul, Trump could issue an executive order removing civil service protections so the attorney general could fire thousands of nonpartisan career lawyers and F.B.I. agents. (Trump issued such an order in 2020, known as Schedule F, which Project 2025, a blueprint for the next Republican administration by the Heritage Foundation, proposes reinstating.)
Step 2
Open Investigations — or Influence Them
Once Trump has loyalists in key positions, they could begin taking actions that the other branches of government could not initially stop. The executive is fast. The judiciary is slow. And Congress does not have a direct role to play in criminal cases.
Trump could order the Justice Department to open a fresh investigation into a Trump critic or revive claims his allies have so far failed to substantiate, including accusations of corruption against Joe Biden that predate his presidency.
A Trump-appointed attorney general could tap an official in the criminal division of the Justice Department, a special counsel or a U.S. attorney — whom the president nominates — to lead an investigation that Trump orders.
Even at this early stage, Trump’s goal of punishing an enemy could, in a sense, be considered accomplished. Investigations alone can cause harm to the finances and the reputation of the target even without an indictment or conviction.
An old saying in the law applies: The process is the punishment.
Checks on Trump’s Power Could a baseless investigation be stopped? It’s possible. Even if Trump has installed loyalists at the top levels of the Justice Department, F.B.I. agents and D.O.J. career attorneys could tell their superiors that they don’t have enough evidence to pursue a case. They could resign, leak to the press, or notify Congress.
Federal employees have some whistleblower protections when they expose misconduct to Congress, and if Democrats control the House or the Senate, a Trump-ordered investigation is more likely to come under scrutiny from a congressional committee.
The Justice Department also has a watchdog, the inspector general, who can conduct internal investigations. But these inquiries can take years and become the subject of partisan infighting, allowing a cloud of suspicion to linger over a target.
It is entirely possible that an investigation, even one that seems clearly politically motivated, would be able to move forward. Trump’s appointees could persuade some F.B.I. agents and career prosecutors to follow the president’s orders. As Peter Keisler, an acting attorney general for George W. Bush, explained, “They can tell themselves that the president has been elected and they’re supposed to help him do the job as he defines it.”
What if prosecutors decide in the end that their investigation has led nowhere? To avoid damaging someone’s reputation, the Justice Department does not publicly disclose details when it closes an investigation without seeking an indictment. But officials can break the norm, as in 2016, when the F.B.I. director decided not to prosecute Hillary Clinton but hurt her presidential candidacy by saying she had been “extremely careless” with classified material (words he later called a mistake).
If prosecutors decide they do have enough evidence to support criminal charges, then they seek an indictment from a grand jury. That means taking their case to court.
Step 3
Route Cases to Favorable Judges
As an independent branch of government, the judiciary is a check on the power of the president and the Justice Department. Prosecutors could try to boost their odds of success, however, by tying the facts of the case to a jurisdiction where the judges (and the jury pool) are perceived to be partisan, and filing charges there.
For example, some district courts in Texas have small rosters of judges with strong conservative credentials.
Prosecutors would ask a grand jury for an indictment. In theory, grand juries are a check on prosecutorial power, but in practice, they almost always agree to indict.
Once a defendant has been indicted, a judge would decide whether he or she would be jailed pending trial. A judge who is sympathetic to Trump could grant requests from prosecutors for search warrants, which other judges might reject, or deny requests from defense lawyers to exclude questionable evidence. Such a judge could make a weak case appear stronger and then allow it to go to trial.
Several of the 174 district court judges Trump nominated have issued rulings that favor him or his policy agenda. (In July, in the case against Trump for mishandling classified material, Judge Aileen Cannon in Florida held the appointment of the special counsel, Jack Smith, to be unconstitutional, even though for decades, courts uniformly accepted such appointments.)
Checks on Trump’s Power Before trial, the defense could challenge the prosecution as politically motivated and ask the judge to dismiss the charges.
If the judge did not do so, and the case went to trial, the government’s proof would be on public display for the first time, and a judge and jury would weigh the strength and weaknesses of the evidence.
If the trial resulted in an acquittal, the case would be over and the prosecution could not appeal. If the defendant is found guilty, a path opens to appeal the verdict.
Step 4
Appeal Adverse Rulings — Eventually to the Supreme Court
In the event of a guilty verdict, the defense would appeal to one of the country’s federal appeals courts, which rule in panels of three judges. Trump appointed 54 appellate judges in his first term. Republican-appointed judges have a majority on six of the appeals courts, including the Fifth and 11th Circuits, which hear appeals from Texas and Florida respectively.
Following an appeal, the Supreme Court would decide whether to hear any challenges to the appellate court’s ruling.
Any step the Supreme Court takes could affect the public’s view of its legitimacy and neutrality — which many Americans already question — especially since the conservative majority of six justices includes three Trump appointees.
Step 5
Deploy the Pardon Power
What if some D.O.J. officials hesitate to follow Trump’s orders for fear of being prosecuted themselves for crimes like obstruction of justice? Trump holds an important card to alleviate their fears: He could invoke the Constitution to pardon anyone he chooses.
In his first term, Trump pardoned allies including Steve Bannon, Roger Stone and Paul Manafort.
Campaigning this year, he has floated the possibility that he might pardon everyone who has been prosecuted for participating in the violence at the Capitol on Jan. 6, 2021.
Checks on Trump’s Power In July, the Supreme Court granted the president absolute immunity from criminal prosecution for a set of official acts that includes issuing pardons. As a result, the only clear recourse for an abuse of the pardon power is for Congress to impeach and convict the president.
The American president is the most powerful person in the world. In any administration, he or she has several ways to use that power for ill to serve his or her political purposes. A president can order troops to suppress protests, for example, or can defy a court order.
But Trump has been clearest, in record and rhetoric, about ordering criminal investigations. As Attorney General Robert Jackson said in a landmark speech in 1940, “The prosecutor has more control over life, liberty, and reputation than any other person in America.”
The vulnerability of people who find themselves at the mercy of unjust prosecutions — with little protection at the outset and no guarantees throughout — can signal a larger breakdown to come. If the public comes to see the Justice Department as compromised, will witnesses and informants continue to cooperate? Will jurors and judges trust prosecutors in court? A president who misuses the law can ruin lives — and shake the system to its core.
