Donald Trump is planning an assault on the American justice system should he win re-election to the White House, in which he would seek to destroy the independence of the justice department and turn it into an attack machine for his Make American great again (Maga) movement.
At the heart of his plans is the desire to impose his will on the individual prosecutorial decisions taken by the Department of Justice. The move, if successful, would end half a century of accepted practice that prevents presidents from politically interfering with specific cases.
It would allow Trump in his second term to eradicate the federal prosecutions currently being pursued against him as well as against insurrectionists who stormed the US Capitol on 6 January 2021 whom he has championed as “hostages”. It would also free him to instigate legal investigations as acts of revenge against his perceived political enemies, including Joe Biden and family.
“I will appoint a real special prosecutor to go after the most corrupt president in the history of the United States of America, Joe Biden, and the entire Biden crime family,” Trump said last year.
No evidence has been presented linking Biden to any crime, though his son Hunter Biden did go on trial on Monday accused of falsifying a firearms license application.
Trump repeated the threat that he use the justice system to go after his opponents on Tuesday, telling Newsmax that the prosecutions against him had set a “terrible precedent” that he implied he would turn against Democrats should he win in November. “It’s a terrible, terrible path that they’re leading us to, and it’s very possible that it’s gonna have to happen to them.”
In his first White House term, Trump made clear that he aspired to total control of the DoJ. He failed in that attempt, largely because of the resistance of top justice officials.
Trump’s determination to overcome the norm is now much more advanced than it was four years ago. His disdain for the fundamental building blocks of the justice system was on full display following his New York conviction last week on 34 counts of falsifying business records to cover up an affair with the adult actor Stormy Daniels.
In comments widely echoed by senior Republicans, Trump denounced the trial as “rigged” – an echo of his false claim that the 2020 presidential election was stolen from him.
“His message is that whenever anything comes out in a way that isn’t positive for me, it’s illegitimate,” said Rebecca Roiphe, a law professor at New York Law School. “If people start to believe that, then really, you don’t have any rule of law.”
Independence and impartiality were baked into the justice department in the wake of Richard Nixon’s abuses in the 1970s Watergate scandal, ensuring that while presidents can appoint the attorney general who heads the DoJ, as well as set general law enforcement priorities, they cannot influence individual cases.
That norm has held steady for 50 years, but it remains vulnerable to attack. Roiphe co-authored a study into whether presidents can control the justice department, concluding that while DoJ independence has become a cornerstone of American democracy, it is not so secure that “it couldn’t be dismantled by a president who was firmly committed to doing so”.
Trump allies have been busy in recent months in laying down legal arguments for why he should be permitted to wield absolute power over federal legal decisions. The most significant work has been done by Jeff Clark on behalf of the Center for Renewing America, the rightwing thinktank led by Russ Vought.
Vought, Trump’s former budget director, is considered a contender for White House chief of staff in a second term. He is a central participant in Project 2025, a mammoth effort by a coalition of rightwing groups to prepare a blueprint for a renewed Trump presidency.
In an article titled “The US Justice Department Is Not Independent”, Clark argues that the practice of avoiding direct contact between the White House and the attorney general that has pertained since the Carter administration must be swept away. “Under the constitutional system as it stands, DoJ independence does not exist,” he wrote.
This quasi legal doctrine has been dubbed the “unitary executive theory”, signifying the sole power of the president over all federal government affairs.
Clark was at the center of Trump’s most egregious attempt to seize control of DoJ decision-making during his first term. In January 2021, at the climax of the “stop the steal” campaign, Trump tried to make Clark acting attorney general in place of Jeffrey Rosen who was refusing to play along with his election denial conspiracy.
Clark, a relatively unknown justice official, was only stopped after several senior DoJ officials threatened to resign.
He has written the roadmap that would allow Trump to demand a halt to the federal prosecution for his role in January 6 in which Clark himself is an unnamed co-conspirator.
As Steve Bannon, Trump’s former chief White House strategist, put it on his War Room podcast, the DoJ would be purged and restructured to “get rid of lots of personnel”.
A key early move would be choosing an attorney general open to the idea of the unitary executive theory. Problems with senate confirmation, which is designed as a check on presidential power, could be overcome at least in the short term by appointing an acting attorney general who can operate without congressional approval.
Early moves on the part of the new attorney general would include dismissing the current special counsel Jack Smith. That in turn would pave the way for the termination of Smith’s two federal prosecutions against Trump – the January 6 case and the charges relating to Trump’s hoarding of confidential documents at his Mar-a-Lago resort.
The former president has also proposed forming a taskforce to review the cases of what he has called “every political prisoner who has been unjustly persecuted by the Biden administration”. The trawl would likely be directed at pardoning January 6 rioters.
Trump has indicated that he would deploy prosecutorial powers against Democratic foes, but he also has Republicans in his sights. The Washington Post reported that in private he has expressed a desire for revenge even against leading figures in his first administration who have since become critics. They include his former chief of staff John Kelly, former attorney general Bill Barr and ex-attorney Ty Cobb.
Roiphe said that the structure of the criminal justice system, including grand juries and trial procedures, would stand in the way of any attempt to prosecute innocent people. But she warned of the possible corrosion of faith in the system that could ensue, with potentially dire long-term consequences.
“That’s what happens in authoritarian states – there is a semblance of a legal system, but it becomes useless,” she said. “If that happens here it would be extremely troubling. We’re not there yet. But I do think a second term could cause significant damage that may or may not be permanent.”
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