Lock them up: The danger of political prosecutions in a second Trump term

President Trump lifts his fist toward the crowd after speaking on the first day of the Republican National Convention, August 24, 2020. | Chris Carlson/Getty Images

Trump hasn’t managed to prosecute his enemies yet. What if he has four more years to try?

President Donald Trump wants his enemies locked up — he says so all the time.

He told Hillary Clinton that once he won, she’d be “in jail.” He wants foreign countries to investigate the Bidens. He said that John Kerry “should be prosecuted.” He wants Adam Schiff “questioned at the highest level for Fraud & Treason.” John Bolton, he says, should be “in jail, money seized.” James Comey should face “years in jail.” The list goes on. This isn’t just empty political rhetoric — Trump says similar things to officials in private, and grows angry when his demands aren’t carried out.

And so far, they haven’t been carried out. Yet the Justice Department under Attorney General Bill Barr has already become increasingly responsive to Trump’s preferences in criminal cases involving Trump’s friends. So the question is whether, if Trump wins in November, his talk of investigations and prosecutions will become more than just talk.

I spoke to more than a dozen former Justice Department officials about Trump’s increasingly tight grip on an agency that has long prided itself on independence when it comes to criminal matters.

“There’s the fear of the attorney general intervening in cases to benefit president’s allies,” said former US Attorney Barbara McQuade. “And you can also use that power to harm the president’s enemies.”

Already, since Barr took over, he has acted in unusual ways to try to help Trump and his friends, from pre-spinning special counsel Robert Mueller’s findings to intervening in Roger Stone’s sentencing and trying to throw out Michael Flynn’s prosecution.

Chip Somodevilla-Pool/AFP via Getty Images

“In sensitive cases, there’s been a systematic disregard of procedures and norms of behavior, many of which were put in place after Watergate,” says Donald Ayer, who was deputy attorney general under George H.W. Bush (and was succeeded by Barr back then). “These things have been rent asunder by Bill Barr.”

Still, of all the people Trump has so often said he wants prosecuted, none have actually been charged with anything. (Instead, it’s Trump’s associates who keep getting charged, most recently Steve Bannon.) All this can be viewed as encouraging — that the Justice Department, despite so much political pressure coming from the top, maintains standards and won’t bring bogus charges to please the president.

Yet it’s too simple to say the department has fully ignored Trump. Andrew McCabe reportedly came quite close to indictment. News broke of another probe focusing on Comey earlier this year. Top Justice officials set up special processes to review allegations from conservatives about the Clintons and the Bidens. And Barr has given other prosecutors he trusts special, politically charged assignments — most notably, John Durham’s investigation of the handling of the Russia probe, an ongoing matter Barr often discusses publicly.

Despite all that Barr has done, there remain lines he hasn’t crossed. And this is increasingly trying Trump’s patience. “Bill Barr can go down as the greatest attorney general in the history of our country,” the president said in a recent Fox Business interview. “Or he can go down as just an average guy. We’ll see what happens.”

When Trump took office, there was a dam, preventing the president’s corrupt or political pressures from crashing through and flooding the Justice Department. Since then, that dam has sprung a great many leaks. And there’s a real question of whether it would burst entirely in a second Trump term, with the president no longer needing to constrain himself for reelection.

Barr brought big changes

For Trump’s first two years as president, the Justice Department maintained its independence to a great extent under Attorney General Jeff Sessions, and earned Trump’s fury as a result.

Sessions’s biggest mistake in Trump’s eyes was that he recused himself from involvement in the Russia investigation — standard operating procedure in criminal cases to protect against conflict of interest — and put Rod Rosenstein in charge instead.

“There was a really powerful norm in the Justice Department that you never wanted to be perceived as a political arm for the president personally,” says Asha Rangappa, a former FBI agent who is now a senior lecturer at Yale. “And there was a sense that if you violate it, there’s going to be criticism and pushback and consequences.”

Sessions was a staunch Trump supporter, but he felt he simply had to recuse — because he couldn’t effectively lead the Justice Department if he didn’t. He was constrained by the department’s norms.

Barr had no such qualms. He had been attorney general before, and he took the job again in part because he thought the department needed a firmer hand at the top. Again and again, he’s proven unafraid of criticism that he’s acting politically to help the president or his friends.

Barely a month after Barr was sworn in, he released his misleading spin on special counsel Robert Mueller’s findings a month before the report itself. His Justice Department decided Trump’s request that Ukraine’s president investigate the Bidens wasn’t worth investigating, and other federal investigations into Trumpworld appear to have fizzled out. Barr personally instructed prosecutors to weaken their sentencing recommendation for Roger Stone, and he is trying to have the case against Michael Flynn dismissed entirely. He instituted a new rule requiring his personal approval for any investigations into presidential candidates or campaigns. And he’s attempted to place loyalists into key US attorney posts, such as the Southern District of New York and the District of Columbia.

Yet even through all this, the Justice Department has not become a well-oiled machine that does President Trump’s bidding immediately at all times — far from it. Rather, the change has been more subtle and insidious.

“I think the message has come through loud and clear that if you do anything to cross the president and the attorney general, your career will be put at risk,” says Matt Miller, who directed the Justice Department’s Office of Public Affairs under Eric Holder.

Aaron Zelinsky, a prosecutor who had worked on Mueller’s team, made that explicit in congressional testimony this June. The newly installed acting US attorney for the District of Columbia, Tim Shea (a close Barr associate), wanted to lighten prosecutors’ sentencing recommendation for Roger Stone. Zelinsky testified that a supervisor agreed this was “unethical and wrong,” but told him to go along, because “this case was ‘not the hill worth dying on’” and that we could “‘lose our jobs’ if we did not toe the line.”

All this is worrying enough — but, of course, Trump wants more. Much more.

Averting their eyes

To assess just how likely it is that Trump could turn the Justice Department against his enemies in his second term, we have to understand why it largely hasn’t happened so far.

Up to this point, Justice officials have usually dealt with Trump’s demands for prosecutions by either blatantly ignoring them or assigning a US attorney to review the matter.

Ignoring Trump is easiest when his demands are completely absurd. Take his demand to have Rep. Adam Schiff investigated for treason because Schiff paraphrased Trump’s comments during his call with the Ukrainian president during a congressional hearing. This bears not even the faintest resemblance to treason. Accordingly, there’s no indication that the Justice Department has taken any action.

Trump can sometimes become fixated on a legally dubious demand. According to John Bolton’s book The Room Where It Happened, Trump became “obsessed” with the idea of prosecuting former Secretary of State John Kerry under the Logan Act (an obscure law banning private citizens from conducting US foreign policy) because Kerry had contacts with Iran’s foreign minister. Trump would mention this idea “in meeting after meeting in the Oval” to Barr “or anybody listening,” Bolton writes. Trump’s tweets about it have continued this year, and now he says he wants Sen. Chris Murphy (D-CT) investigated for it too.

The law was last used in 1852; some legal experts now view it as a “dead letter” and question its constitutionality. But the idea of a modern Logan Act investigation is not entirely far-fetched. While investigators under the Obama administration were probing Michael Flynn’s links to Russia, they researched whether the act would apply to Flynn’s conversations with Russian Ambassador Sergey Kislyak during the transition. The Logan Act was never the focus of their investigation, and they never came close to bringing charges under it. Still, there is recent precedent to look at it. As far as we know, Barr’s Justice Department has not done so.

There are reasons to doubt whether “just ignore the president” is a sound long-term strategy. A second-term Trump might get tired of taking no for an answer. If he really wants action, he could outright order the Justice Department to open some investigation and fire anyone who refuses to carry out that order. He may eventually find someone sycophantic enough to do it.

For the Logan Act, recall also that it was during the Obama administration that investigators explored using the law regarding Flynn. Is it so implausible that in a second term, Trump could find his own appointees who are willing to push the envelope further, against Kerry or other Democrats? That he could order them to do so?

Jonathan Adler, a law professor at Case Western Reserve University argued that the president has broad authority over the Justice Department, but that he should not use those powers for ill. “The Justice Department is certainly under the control of the president. It is part of the executive branch, so it is certainly legal for the president to dictate to the Justice Department how it should operate or what its priorities should be,” says Adler.

But, he continues, “We have long placed a value on the Justice Department being able to make judgments and prosecutorial decisions based on traditional legal criteria and with an eye toward attempting to do equal justice.”

The president may have other ideas. Take the example of James Comey. The fired FBI director had written memos chronicling his interactions with President Trump. Inspector General Michael Horowitz criticized him for having the unclassified contents of one memo leaked to a reporter, but that wasn’t a criminal matter. There were, however, very small amounts of retroactively classified information in some other memos that Horowitz dinged Comey for improperly handling. This was very thin gruel for a potential prosecution, and indeed, the Justice Department quickly determined not to charge Comey.

Chip Somodevilla/Getty Images

Trump wasn’t willing to let things lie there. The Washington Post reported that after he learned of the decision not to prosecute Comey, he “complained so loudly and swore so frequently in the Oval Office that some of his aides discussed it for days.” A few months later, in December 2019, Trump accused Comey of “unlawful conduct” and suggested he could face “years in jail.”

Finally, in January 2020, the New York Times reported that Comey was again facing investigative scrutiny related to “a years-old leak of classified information about a Russian intelligence document.” The current state of this investigation, including whether it’s in response to a presidential demand, is unknown. But it is quite clear that the president has not forgotten his desire to see Comey prosecuted.

Handpicked investigators

Another way the Justice Department has lately responded to political demands for investigations — coming from the president or his allies in Congress — is by assigning someone to do the job.

Jeff Sessions started this trend in late 2017 when he announced that John Huber, the US attorney for Utah, would review the handling of an investigation into the Clinton Foundation and other Clinton-related matters.

This special effort aimed at Trump’s 2016 opponent worried some. But in practice, it was clearly not the “Get Hoffa” squad (which Attorney General Robert F. Kennedy assembled to take down union leader Jimmy Hoffa however they could). The Washington Post reported this January that Huber’s review had “effectively ended” and that officials “said they never expected the effort to produce much of anything.” In retrospect, this particular special assignment seems mainly aimed at quieting conservatives’ complaints, rather than locking up Clinton.

Yet the practice of special assignments has continued under Barr. Barr tasked US Attorney for Connecticut John Durham with investigating the origins of the Russia investigation. He got John Bash, US attorney for the Western District of Texas, to look into Obama officials’ use of “unmasking.” And Scott Brady, US attorney for Pittsburgh, got the job of looking into information Rudy Giuliani collected about the Bidens and Ukraine.

This is a process that, if approached in bad faith, can be very open to abuse. Are these US attorneys being chosen because of their professionalism, or because Barr knows they’re politically simpatico?

To take an example involving one of the president’s friends, Barr asked Jeff Jensen, US attorney for the Eastern District of Missouri, to review the case against Michael Flynn, more than two years after Flynn had pleaded guilty to lying to the FBI about his contacts with the Russian ambassador. And indeed, the Justice Department soon moved to have Flynn’s case withdrawn, claiming that Jensen has found new information meriting that move. (The judge overseeing the case, Emmet Sullivan, sounds deeply skeptical of these assertions, and hasn’t allowed Flynn’s case to be thrown out just yet, and the matter is tied up in court.)

The larger point is that Jensen could not have been unaware of what Trump was hoping he’d come up with — a reason to get Flynn off the hook. He delivered.

By contrast, look what happened with Huber, the US attorney who didn’t find any new Clinton-related information justifying action. President Trump publicly attacked him for this supposed failure, tweeting that Huber “did absolutely NOTHING. He was a garbage disposal unit for important documents & then, tap, tap, tap, just drag it along & run out of time.”

This, too, sent an unmistakable message to prosecutors who score such high-profile assignments — the president can and will attack them if they don’t deliver what he wants.

Casting clouds

One check against utterly baseless charges, though, is that they almost surely couldn’t hold up in court. Bringing a very high-profile case means you’ll be embarrassed in a very high-profile way if it falls apart. And already, as CNN’s Katelyn Polantz and Kara Scannell have argued, judges have begun showing more skepticism to the Trump Justice Department’s representations in these matters.

“You can see it already in the way that courts are reacting to the Justice Department’s positions,” says Mary McCord, who served as the acting assistant attorney general for national security in the late Obama and early Trump administrations. “That built-in credibility and trust that the department had with judges is eroding. They’re not just willing to accept at face value that their representations are fully accurate and correct and not the product of political pressure.”

All this is why Rangappa is skeptical that outright prosecutions of Trump’s enemies is “where the danger lies.” Trump’s Justice Department “can’t make up evidence and go after somebody in a court of law, because the defense lawyers would tear that apart and it would get exposed,” she says.

But there’s another danger, which to some extent has already manifested. Even if an investigation ends in no charges, its mere existence — if it leaks — can hang over someone, make them afraid, and have a political impact.

Trump understands this dynamic perfectly well. The email investigation loomed over Hillary Clinton’s 2016 campaign, and then the Russia investigation loomed over President Trump. Indeed, Trump told James Comey that it was a “cloud” hanging over his presidency, and asked the then-FBI director “what he could do to lift the cloud,” per Comey’s memos.

Saul Loeb/AFP via Getty Images

More recently, Trump held up military aid to Ukraine in an effort to get that country to investigate the energy company Burisma and the Bidens (a move that, once it was discovered, led to Trump’s impeachment). But Trump didn’t just want an investigation. He was insistent that Ukraine’s president publicly announce that investigation, according to his aides’ testimony. That is: He wanted to put a cloud over Joe Biden’s presidential campaign, with the ominous phrase “under investigation.”

“Politically, I think it is to their benefit to not actually bring charges,” Rangappa says. “What’s good for them is to have an ongoing perception of criminality and a sense that these criminals are still at large, that it’s the Democrats who are doing it.”

The most prominent example of this so far is in Barr’s highly unusual handling of the Durham investigation. Shortly after Mueller finished his work, Barr assigned Durham to examine whether there was misconduct around the opening of the Russia probe. At some point in the following months, Durham’s probe became a criminal investigation, and its scope widened.

We have no idea what Durham found; his sole charge so far is of an FBI lawyer whose misconduct (altering an email) was revealed last year by the inspector general. Durham’s investigation is ongoing. That’s why it’s so odd that Barr has repeatedly made public comments, often to Fox hosts, always with the gist that he thinks the Russia investigation was deeply corrupt and riddled with malfeasance.

“No contemporary attorney general has, like Barr in the Durham investigation, offered such extended, opinionated, factually unsupported and damning public commentary, naming names and drawing conclusions, about an ongoing investigation that is at least in part a criminal investigation,” Jack Goldsmith and Nathaniel Sobel recently wrote while reviewing what we know of the Durham probe.

‘In my time, when something was before the grand jury or otherwise was a pending investigation, you didn’t talk about it,” says Stuart Gerson, who was a Justice Department appointee under George H.W. Bush and served as acting attorney general in the early Clinton administration. “And if there was no indictment, you didn’t say a word about it ever again.”

But if the point is just to cast a cloud over someone — or to help the president politically — rather than win in a court of law, you might take a different approach.

Gray areas

Actually bringing charges, of course, is more difficult. It is hard to imagine US federal prosecutors in the modern day being so far gone that they’d fabricate charges against a political enemy of the president out of whole cloth. “We are not yet in a banana republic where the Department of Justice will fabricate evidence and have a show trial and bring people into a soccer stadium, thank God,” says Rangappa.

Instead, they need something to work with. Conservative activists, media outlets, and politicians have gotten very adept at coming up with possible somethings — at generating unproven scandals that they then demand be investigated.

For instance, anything involving money, which the political system is awash in, can generate cries of scandal — such as with the Clinton Foundation, or Hunter Biden’s work in Ukraine. It’s not illegal to raise money for charity or to be paid a lot to sit on the board of a foreign company, but in both cases, conservatives alleged quid pro quos that do not seem to have really existed: Uranium One for Clinton, and the firing of Ukraine’s prosecutor general for Biden.

Furthermore, the law can be a malleable thing. Famously overbroad classification laws could likely imperil many government employees if they were actually enforced to the letter. Questioning can produce false statements charges.

Of course, if an enemy of Trump’s truly did break the law, and there’s evidence to prove it, they may merit prosecution. The problem is that Trump and Barr’s behavior has created deep doubt about whether any such assessment at DOJ would in fact be fair — or would instead be aimed at pleasing the president.

“It’s critically important that what the Justice Department does has legitimacy,” says Matt Axelrod, who worked for 13 years as a Miami federal prosecutor and then at Main Justice, under the George W. Bush and Obama administrations. “The whole foundation of convicting people of crimes and putting them in jail has to be based on the law. Basing it on politics would be abhorrent to the rule of law.”

But the law can be a malleable thing, and in politics especially, there are often gray areas.

Imagine, for instance, a situation where there really might be some underlying violation — but it just isn’t the sort of matter the federal government would usually bring charges about, Perhaps the offense isn’t that serious, the law is rarely enforced, or there are weaknesses in the evidence.

If a person implicated in something like this is an enemy of Donald Trump, prosecutors may have an extra incentive to pursue a case when they ordinarily wouldn’t.

That’s what some argue happened to Andrew McCabe, the former deputy FBI director. “It was one extended crazy nightmare where they apparently came very close, from what we understand, to getting an indictment,” says Michael Bromwich, McCabe’s lawyer and a former inspector general.

Trump came into office distrusting McCabe because of reports that a Clinton ally, Gov. Terry McAuliffe (D-VA), helped raise hundreds of thousands of dollars for McCabe’s wife when she ran for state Senate. This distrust deepened when the Russia investigation intensified, with Trump viewing McCabe as a Comey ally. He accused McCabe of using his FBI position for political reasons, to help Hillary Clinton (accusations that internal investigators found to be baseless).

However, McCabe also became embroiled in a leak investigation, the gist of which is that when he felt his reputation was being unfairly maligned, he leaked an anecdote intended to make him look good. The anecdote portrayed McCabe as standing up for an investigation into the Clinton Foundation despite pressure from Obama Justice Department higher-ups. This disclosure of internal deliberations about an investigation into a 2016 presidential candidate came shortly before that election. And when investigators asked him about it months later, McCabe initially claimed ignorance. The inspector general concluded McCabe lacked candor, and he was fired.

Trump’s grudge against McCabe had nothing to do with the leak, which didn’t involve him at all (and, if anything, hurt Clinton). But he continued to publicly attack and taunt McCabe, including after McCabe’s firing. And, as this was going on, the US Attorney’s Office for the District of Columbia began investigating whether McCabe made false statements to internal investigators. By September 2019, Justice officials rejected his lawyers’ appeals, signaling his indictment was imminent.

All this set off alarm bells for Lawfare’s Benjamin Wittes. “Criminal dispositions on false statements matters in internal investigations are exceptionally rare,” he wrote. “Absent some gross aggravating factor, I struggle to think of any other examples. Workplace false statements are normally handled through internal disciplinary means, not criminal charges.” Wittes wrote that his point was “not to suggest that McCabe did nothing wrong,” but instead to argue that criminal prosecution of such a matter was highly unusual.

“It was very clear to us that they were straining to make a case against him where there was no case to be made, and that he was being singled out for exceptionally harsh, politically motivated treatment,” Bromwich told me. “We had heard for a long time that there was tremendous political pressure being put on that office.”

The New York Times’s Katie Benner and Adam Goldman reported that the two main prosecutors on the case “came to believe that they could not get a jury to convict” McCabe and “were worried about the appearance of a vindictive prosecution” — and so one quit the case and the other left government entirely. Two other prosecutors pushed forward, and reconvened a grand jury.

But then nothing happened — the expected indictment didn’t materialize. Rumors circulated that the grand jury voted against the indictment (which would be extremely unusual), but that has never been officially confirmed. Another possibility is that prosecutors foresaw defeat and backed down. Finally, after radio silence for several months, and pressure from a judge overseeing a Freedom of Information Act lawsuit about the matter, Justice officials told McCabe’s team this February that he would not be charged after all.

As far as we know, McCabe came the closest of any of Trump’s targets to actually being indicted. He escaped it, but it wasn’t guaranteed to turn out that way. And without the judge pressuring prosecutors to come to a decision, the cloud could still be hanging over McCabe. Or a different grand jury or prosecutorial team could have produced a different outcome. (Barr replaced the US attorney overseeing it with his loyalist Tim Shea while this drama was winding down.)

Alex Brandon/AP

Another key takeaway is that there was a gray area here. McCabe was not the perfect victim — he really was behind an inappropriate (although not criminal and not partisan) disclosure to the press shortly before the election. Trump’s enemies will not always be saints, but they will deserve equal justice under the law, rather than unfair treatment because of their political views. But good lawyers can take advantage of gray areas and ambiguities to advance their client’s case, as Barr has done so often for Trump.

Bad incentives

To tie a lot of this together, Trump and Barr have so degraded the norm against political interference in criminal cases that a serious incentive problem now exists in the Justice Department and will grow dramatically worse if Trump wins a second term.

Career officials will face what Zelinsky described — pressure to either go with the tide on politically controversial cases or risk jeopardizing their jobs. And those hoping to advance their careers in the department would be keenly aware of these pressures.

“People of a right-of-center orientation may in some cases be basically rolling the dice,” Ayer, the former deputy attorney general, told me. “They may know that what they are being asked to do is really not right, but they also know that to prosper, they’ve got to please the authority figure they answer to, who for some of them is Bill Barr.”

Though Trump has achieved little legislatively, if Republicans hold on to the Senate, he will be able to keep the judge-confirmation factory working. And for an ambitious Republican lawyer, Ayer said, “The ultimate brass ring is a judgeship.”

Particularly ambitious GOP lawyers are probably well aware that prosecuting Trump’s enemies would thrill the president and make them heroes in conservative media. The trick, of course, would be to build a case that would hold up in court.

Then there are Trump’s incentives if he wins this fall. It’s worth remembering that everything we’ve seen so far has been from a Trump who’s restrained by reelection calculations.

Recall that the day after the 2018 midterms, he finally fired Attorney General Jeff Sessions. The day after Robert Mueller’s congressional testimony, he asked Ukraine’s president for a favor during a phone call. Perhaps the fear of a historically unprecedented second impeachment would constrain him somewhat, but he’s already learned that as long as he can maintain the support of 34 senators, he can’t be removed.

A Trump reelection would make him even more powerful within the Republican Party. In theory, he’ll be a lame duck — but so long as he remains widely popular among Republican voters, success in the GOP will continue to depend on maintaining Trump’s favor and defending him. Overall, there’s little evidence to suggest he’ll be chastened, and much to suggest that he’ll go even further.

It’s not just Trump

While most of the former DOJ officials I interviewed were deeply troubled by what’s happened to the department, most professed optimism that if Trump were defeated, these trends could quickly be reversed.

Yet the most pessimistic person I interviewed was Matt Miller, the former public affairs chief under Holder. “I actually think the damage is done, whether he gets reelected or not,” Miller said.

As Miller diagnosed matters, the problem wasn’t just that Trump wanted to politicize the administration of justice and that Barr was willing to help him. The even more worrying trend was that much of the Republican Party — from members of Congress to conservative media commentators to the voters who were part of his base — was either defending Trump or egging him on to go further.

I spoke to Miller shortly after the congressional hearing at which Aaron Zelinsky testified about Barr’s interference in Roger Stone’s sentencing — and what he saw from the Republican side troubled him. Whistleblowers had made accusations of misconduct, he said, and they “were treated as combatants, as instruments of the Democratic Party that were there to get Donald Trump and Bill Barr.”

Things weren’t always this way. Back in May 2017, when Trump fired Comey, there was widespread hesitancy among the congressional GOP to defend the firing. But gradually, Trump fought back against the Mueller probe, constructing his alternative narrative that the real crimes were on the “other side.”

Republican politicians have realized that they wouldn’t be struck down if they defended potentially corrupt behavior by Trump. Indeed, for many of them, quite the opposite happens. Those who most vocally defend Trump from accusations of scandal become stars in the party — and would often be rewarded with top jobs from Trump himself, like Chief of Staff Mark Meadows or Director of National Intelligence John Ratcliffe.

Jessica Koscielniak/Getty Images

Lately, the Republican base has increasingly cheered on Trump’s efforts to interfere with the Justice Department, with Fox News commentators urging Trump to give clemency to Roger Stone and hyping the possibility that some former Obama officials will be indicted in the Durham investigation. They are, it’s quite clear, catering to their audience — voters who believe Trump’s conspiracy theories and claims of Democratic crimes, and who want him to move harder against them.

The next Democratic president, Miller predicted, would genuinely try to restore norms of the Justice Department’s independence, because the party truly believes in those norms. But Republicans have learned that they no longer do — and that lesson will be applied in future Republican presidencies.

“The post-Watergate norm that the department should operate independently of the White House when it comes to criminal matters, and without consideration to politics, has completely broken down in the Republican Party,” Miller said. “And I just don’t know why anyone thinks it would just snap back.”

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