Former President Donald Trump has made more public over the past two weeks his plans to use the Justice Department to prosecute scores of people he says are corrupt if he wins in November.
Legal experts said Trump will face obstacles. For example, judges, prosecutors, and juries may refuse to prosecute or convict people unless there is sufficient evidence that they have committed a crime.
But experts also say Recent Supreme Court decision on immunity gives the president the power to order the attorney general to charge anyone they want without facing legal consequences themselves.
“If Trump really wants to do this, he has a lot of power,” said Stephen Gillers, a professor at New York University School of Law. “There would be almost no obstacle to him getting an indictment.”
Last Tuesday, Trump published a book in which he threatened to arrest Mark Zuckerberg. He accused the Facebook founder of trying to influence the 2020 election, without citing evidence, and warned he would do it again in 2024.
“We’re watching him closely, and if he does something illegal this time, he’s going to spend the rest of his life in prison,” Trump said, “just like the fraudsters in the 2024 presidential election.”
At a rally on Saturday, Trump again promised to crack down on corruption at health agencies like the Food and Drug Administration and the Centers for Disease Control and Prevention, without citing evidence.
In a later post on social media, he threatened prosecution against election clerks, campaign donors and others for election fraud.
“WHEN I WIN, THE PEOPLE OF FIELD WILL BE TRIED TO THE FULLEST EXTENT OF THE LAW, WHICH INCLUDE LONG PRISON SENTENCES,” Trump wrote. “Please note that this legal disclosure applies to Lawyers, Political Operatives, Donors, Illegal Voters, and Corrupt Election Officials.”
After the Democratic National Convention last month, Trump reposted AI-generated images of his foes, including Joe Biden, Kamala Harris, Nancy Pelosi, Anthony Fauci and Bill Gates, in orange jumpsuits with the caption: “BASIC HOW TO FIX IT? SYSTEM.’”
Trump also reposted a photo of special counsel Jack Smith with the caption, “He should be prosecuted for election interference and prosecutorial misconduct.” And over the summer, Trump posted photos of former President Barack Obama and former Republican Rep. Liz Cheney demanding that they be tried in “public military tribunals.”
Breaking the 50-year norm
Since the Watergate scandal, which included the criminal trial of President Richard Nixon’s former attorney general, the Justice Department has maintained a tradition of acting independently of the president when it comes to specific criminal investigations.
The Department of Justice makes its own decisions to prevent even the appearance of partisan influence on the department’s operations individual criminal targets based on a detailed set of rules.
The attorney general takes policy direction from the White House, but for the past 50 years, Any attempt by the White House to lead a specific prosecution would have been seen as a scandal under both Democratic and Republican presidents. This post-Watergate tradition has not been legislated anywhere.
There is no evidence that Trump has targeted criminal investigations in his first term as president, but there has been talk of firing Robert Mueller to obstruct the special counsel’s investigation into his campaign’s collusion with Russians.
No law would prevent Trump from seeking a second term, and some conservative lawyers associated with him argue that he could gain more power over the attorney general’s decision-making in individual cases.
One of those attorneys is former DOJ official Jeffrey Clarke, whom Trump wants to serve as acting attorney general to use the department to overcome his defeat in the weeks after the 2020 election. Clarke currently helps run the Center for American Renewal, a Trump-affiliated organization run by potential Trump 2025 chief Russ Vought.
Since leaving the Trump administration, Clark has argued that the attorney general should not be independent. “All executive power of the federal government, including the Department of Justice, is vested in the President,” Clark he wrote last year. “Officials subordinate to the President are assigned to the executive power only if the President entrusts them with this authority.”
Another Trump legal ally, Mike Davis, a former aide to Sen. Chuck Grassley of Iowa and Supreme Court Justice Neil Gorsuch, has floated the concept that Trump’s second administration should trust the acting attorney general, not the Senate. He approved the attorney general to more effectively carry out Trump’s wishes.
Trump said in his first term: “As you know, I like ‘acting.’ It gives you great flexibility.”
Davis also said that if he becomes attorney general, he will “raise hell in Washington” and “bring indictments” against President Joe Biden and members of his family, former President Barack Obama, Hillary Clinton and billionaire George Soros. a major Democratic donor.
Davis told NBC News that he doesn’t expect to be the attorney general, but could be another Trump ally. He suggested that a second-term Trump DOJ could convene a grand jury and seek indictments within weeks of taking office, noting that private citizens could use the DOJ against people Trump supporters accuse of “legislating” in the past. can prepare possible appeals. the president.
“These legislative Democrats must advocate and be ready to report at 12:01 a.m. on January 20,” Davis said.
Davis argued that the department can charge anyone “who is likely to be involved in a criminal conspiracy” and that the department, under Attorney General Merrick Garland, has taken “a very aggressive, expansive view with their laws.” ” against Trump, his allies and supporters those accused of attacking the Capitol on January 6.
“These partisan Democratic plaintiffs, prosecutors, outside attorneys, trial witnesses, judges and other human rights advocates in Albany, Atlanta, DC, New York City, Palm Beach and Phoenix should all be lawyers,” Davis said. “At the very least, they are witnesses to the fact — if not co-conspirators — in this apparent criminal conspiracy.”
Davis said the indictment could be filed in federal court in Fort Pierce, Florida, where Trump could potentially find a more favorable jury. because where is he near? FBI executed a search From Trump’s Mar-a-Lago mansion.
Stephen Richer, a Republican who oversees elections in Arizona’s Maricopa County, said he worries that Justice Department officials in Trump’s second administration will retaliate against local election officials who don’t back up Trump’s claims. allegations of fraud.
“I think we’re potentially going to have professionals in those positions who are more willing to bend the general rules of prosecutorial ethics or legal standards,” Richer told NBC News.
According to him, Trump’s first term has shown that the path to promotion in the Trump administration consists of “fully accepting marching orders, even if it is against the law and ethics.”
Fear and chaos
Legal experts, current and former DOJ and FBI officials said Trump’s threats appear to be part of an effort to pressure officials such as secretaries of state who certify election results to support his claims.
A current law enforcement official, who spoke on condition of anonymity, said the mere threat of prosecution could have a chilling effect, making officials reluctant to challenge Trump’s widespread allegations of fraud. They called it a form of intimidation.
Ilya Somin, a law professor at George Mason University, also said Trump would likely have a mixed record in winning prosecutions. “Most prosecutors are reluctant to prosecute people with little evidence,” he said.
Career FBI and DOJ officials will decline criminal investigations or prosecutions unless there is probable cause, a senior law enforcement official said. “Justice manual” — the DOJ’s rules and procedures guidebook — prohibits prosecutors and agents from conducting warrantless investigations.
But they cautioned that there is a lot of gray area and judgment in evaluating evidence, especially early in investigations. Partisan political officials can pressure career civil servants to follow Trump’s orders. They can potentially fire people who refuse to investigate.
Project 2025, a conservative group, has called for cutting the number of career DOJ and FBI officials and replacing them with political appointees who will do Trump’s bidding.
In the group’s second Trump DOJ playbook, Gene Hamilton, a former Trump DOJ lawyer and current executive director of America First Legal, wrote that the new administration should “identify and address all individuals.” Judging Trump for the past eight years.
Hamilton wrote that he must “break up” “departmental corruption” as a means of “restoring the confidence of the American people.”
NYU professor Gillers said that Trump’s most powerful weapon is fear. While wealthy Americans like Zuckerberg can fight unjustified prosecution for months, ordinary citizens can simply give up.
“What’s happening right now is Trump’s attempt to control people he sees in his path by intimidating them,” Gillers said. “High-profile accusations, like defamation suits, can terrorize the disobedient. He doesn’t have to swallow the accusations, just bring them.”