The MAGA Republicans in Congress contend that the federal Trump indictments reflected the decision of the current President to engage in “weaponizing our justice system to punish a political opponent.” Mr. Trump has more specifically contended that such prosecutions have interfered with the 2024 Presidential election; these federal prosecutions are designed to enhance the prestige of President Biden while decimating the moral and political standing of the former President. The purpose of this blog post is to analyze these claims and to enable readers to evaluate the functioning of our justice system.
Goals of the Justice Department. The Justice Department has stated that its job is to manifest “independence and impartiality,” which means it is to follow “the facts and the law wherever they may lead, without prejudice or improper influence.” (U.S. Department of Justice, “Our Mission,” 1789 to Today (2022.))
The darker alternative is a justice system that follows the preferences of the current administration. Compare the American system of justice with the one that functioned under Soviet communism. The American system seeks to apply and follow enacted law, but the Soviet system was devoted to advancing the preferences of the unelected regime. In a system like the Soviet’s, the purpose of deciding cases impartially disappeared, and cases were often decided based on the regime’s “prejudice.” Under such a system, impartial decision-making is no longer the ideal, and regime preferences override any goal of fairly implementing the law.
By contrast, through American history the goal of law enforcement has been to dispassionately implement the law. By contrast, the law conceived by President Trump involved whatever seemed necessary to avoid obstacles to the achievement of the President’s personal ambitions. The purpose of advancing personal goals became overriding, sometimes to the detriment of the general goals of our justice system, as outlined above.
The classic example was Trump’s treatment of his first Attorney General, Jeff Sessions. Sessions was one of the nation’s most conservative Senators and was the first member of Congress to endorse Donald Trump to be President. In many ways, Sessions was the perfect match to help Trump advance some of his populist goals; he had a key role, for example, in the imposition of the family separation policy. Sessions embraced Trump’s strong views opposing the granting of strong rights claims by immigrants and was stridently opposed to an expansive reading of gay rights. It was contended as well that his positions on race were based on prejudice. Observers considered Sessions to be the embodiment of the loyal supporter of the President’s agenda.
Sessions encouraged the President to fire James Comey, the FBI’s Director, who was determined to investigate the relation between the Trump campaign and the Russian government. But while pursuing conservative federal policies, there arose issues relating to the relationship between Trump’s initial presidential campaign and the intervention of Russia in the 2016 presidential campaign. Senator Session’s Senate committee work brought him into contact with Russian diplomats, though he assured the Mueller investigation that he had not been in contact with Russian leaders during the presidential campaign. While some in Congress saw little connection between these limited diplomatic contacts and the so-called Russian Investigation, others, like Senator Lindsey Graham, called on Sessions to recuse himself from any investigation into the connections between Russia and the Trump campaign.
MAGA members of Congress saw AG Barr’s Justice Department decision to prosecute Trump’s attorney for paying hush money to Stormy Daniels, well-known porn star, who had a one-night tryst with Trump years prior to his election to the presidency. No member of Congress objected that Barr had weaponized justice to prosecute Trump’s attorney. The Justice Department declined to bring charges against Trump; but Trump and Barr eventually perceived the considered charges as part of Witch Hunt to go after Trump. So the Justice Department affirmed its initial decision against bringing charges against Trump, even though the criminal conspiracy pre-dated Trump’s presidency,
Sessions also received similar advice from Justice Department ethical advisers, to avoid a conflict of interest, or an apparent conflict. But from the day he took that advice, Sessions quickly learned his recusal decision would guarantee him a lost job and a bitter assault from the man who valued personal loyalty above all else. The President viewed professional relationships in very personal terms. For Trump, loyalty to our system of justice, or to the rule of law, do not play as heavily as demonstrating personal loyalty to the person who gave you a position of authority.
Sessions was ultimately removed from the AG position, mainly based on his recusal decision. Notice that Trump’s decision to fire Sessions itself supplies a compelling example of weaponizing the law enforcement system. Sessions was attempting to ensure that the Russian investigation could be carried on independently of the preferences of the White House. But such a commitment to keeping the institutions independent was viewed by Trump as a personal affront because loyalty was the supreme value.
Hence some advised Trump that the Justice Department should not attempt to oust the U.S. attorney who investigated Trump’s personal lawyer; and dutifully implemented Trump’s vision for a forceful crack down on demonstrators in the District of Columbia protesting police violence. (Matt Zapotosky & Karoun Demirjian, Analysts said Barr was eroding Justice Department’s independence—without facing any real personal consequence, washingtonpost.com, June 24, 2020. The result was that “morale inside the Justice Department” had plummeted.
Trump’s Weaponizing of the Justice Department The former President perceives the world in transactional terms. The important point is that you are to be a “winner” and not a “loser.” Many viewed the events on January 6, 2021—the “attack” on the capital and the violence inflicted—as a virtual decimation of Trump’s Presidency. There in fact was a huge turnover of the executive workforce stemming from the events of January 6. Many explicitly clarified that they considered it to be an early departure and to have been caused by the explosion directed at the Capital. One consequence is that Trump adroitly worked to shift the comprehension of what happened that day. Eric Cortellessa, If He Wins, Time Magazine (May 27, 2024), 30, 32. Time’s reporter characterized that day by referring to a mob attacking “the center of American democracy in an effort to subvert the peaceful transfer of power,” with the consequence that it “was a profound stain on his [Trump’s] legacy.” Id. But, Cortellessa observed, Trump “recast an insurrectionist riot as an act of patriotism. ‘I call them the J-6 patriots,’ he says.” And, of course, he assured that he is considering pardoning “every one of them,” apparently including even those convicted of inflicting violence on Capital Hill police.
Rather than acknowledging that it was a mistake to attempt to do so much on January 6, Trump seems to entertain only some remorse that he was not “more vocal about imposing his will directly on the [Justice] department and its far-flung investigators and prosecutors.” Id. at 33. Curiously, in addition to embracing the “deep state” metaphor to describe the wrongs inflicted on him at least ever since January 6, he equally expresses dismay that, responsive to government’s wrongs, he had not imposed his will directly on the Justice Department. Id. Indeed, he now “says he might fire U.S. Attorneys who refuse his orders to prosecute someone.” Indeed, om the Project 2025, the MAGA base which will advise President Trump has stated its view that the unitary executive—fulfilling a virtually all-powerful President—will act to provide retribution against those who had targeted Trump and fellow conservatives. This promise rejects the traditional goal of keeping the Department of Justice independent of the White House.
Relatedly, Trump now expresses regrets that he did not demand that executive branch lawyers prosecute Joe Biden. These are actions that demand that the Justice Department acts mainly out of loyalty to the person who occupies the White House; it ignores completely the traditional goal of keeping the political system independent of the system of justice. This year Trump has made a point of insisting on his authority
The Supposed Weaponization of the Legal System by President Biden. Perhaps to illustrate that some call Trump the “projector in chief,” the former President’s new “winning strategy” became the MAGA insistence that the Biden administration has pursued Trump in a vindictive approach to foreclose his bid to return to the Presidency. An irony is that there has been virtually no evidence cited to show that the current President has directed the prosecutors or judges, either federal or state, to wreak vengeance on the person conceived by his followers as an irrationally despised former President. Just as vexing, if there was any “weaponization” of our legal system, it was poorly executed. Attorney General Garland was sufficiently determined to exercise an independent role from the administration that he arguably overdid it.
His quest for “neutral” decision-making prompted him to focus on the January 6 citizens and groups that actually stormed the capital to disrupt Congress’s exercise of duties to complete the federal election. He did not have the Justice Department investigate the role of the of the Trump campaign or proceed on the assumption that the campaign had planned the violence or sought to prevent the counting of the electoral vote. But the plot thickened because of the work performed by Congress’s January 6th committee. Its study showed that the Trump campaign’s election interference began prior to the voting itself. January 6th was in effect the culmination of the Trump plan to advance the “stolen election” thesis, and to insist that Congress needed to right the wrong by scrutinizing the vote counting in closely contested states. The plan was to have Vice President Pence decline to certify the electoral counts in a number of closely contested races, which could lead to new efforts to be sure the votes were correctly counted. Since Trump and others claimed to believe that he had won the election in a landslide, the outcome in their minds could simply be reversed.
The most unfortunate consequence of the Garland approach is that it did not yield a prompt, thorough investigation of what, and who, had produced the January 6 events. It was not until the January 6 congressional committee was preparing to release the report of its completed investigation at the end of 2021—almost two years at events—that the Garland Justice Department decided that more action was called for. In fact, special counsel, Jack Smith, was not appointed until November 18, 2022, which meant that serious work on the role of former President Trump, and the members of his campaign, did not proceed early enough to yield the prompt response that might have been hoped for. If supporters of ex-President Trump became unhappy that so much had come together so belatedly, they should at least know that the ex-President’s critics were even more unhappy.
The ultimate test, of course, is whether the Justice Department exercises independent judgment about whether to pursue Donald Trump for (1) refusing to work the transition of power contemplated since the founding; and (2) improperly retaining national documents, including those that were classified so as not to be easily reviewed.
Legal&Political 