Trump Can Prosecute Anyone Now
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A year into Donald Trump’s second term, the Department of Justice has become his private law firm, devoted less to the impartial administration of justice than to blackmailing, intimidating, and persecuting Trump’s foes while selectively enforcing the law to spare allies who break it. The chairman of the Federal Reserve reveals that the Justice Department has been attempting to blackmail him into lowering interest rates with the threat of a federal indictment. The governor of Minnesota, the mayor of Minneapolis, the former head of the FBI, the attorney general of New York, and a member of the Federal Reserve Board all face indictment or investigation for opposing or challenging the president.
The decision to ignore evidence that demands investigation or prosecution can be equally nefarious, as we’ve seen in Minneapolis, where federal authorities refused to investigate a masked government agent for shooting an unarmed mom in the face, and where half a dozen federal prosecutors have since resigned after being pushed to investigate the woman’s widow instead.
These are all examples of the executive branch abusing its prosecutorial discretion. And thanks to Chief Justice John Roberts and the Supreme Court, Trump is likely to get away with it.
The Supreme Court’s 2024 decision to grant presidents “absolute immunity” to criminal prosecution for “official acts”—a concept with no textual basis whatsoever in the Constitution—means that Trump can abuse his authority over the executive branch with impunity. Given Trump’s campaign-trail emphasis on “retribution,” he probably would have pursued malicious prosecutions of his enemies regardless of the Court’s decision. But the Court’s grant of imperial immunity eliminated any fear Trump might have had about criminal liability for the corrupt use of his powers.
The argument for the independence of the Justice Department is straightforward. Although the president may set priorities, actual cases are supposed to be brought based on the facts and the law, not on the identity of the defendant. “Attorneys general have differed a lot; John Ashcroft was not Eric Holder,” Michael Bromwich, who was a DOJ inspector general in the 1990s, told me. And yet, he said, attorneys general have all believed “in a Justice Department where law-enforcement decisions were made on the facts and the law.” Independence is “the only thing that can give the country the belief that decisions that can ruin people’s lives are being made fairly by people who are weighing the evidence” instead of according to a “political agenda or a personal vendetta,” Todd Peterson, a law professor at George Washington University, told me.
You cannot have impartial prosecution without prosecutors who make decisions free of political pressure. But what if you don’t want impartial prosecutions? What if you want to prosecute a grieving widow whose wife was killed by a federal agent, because you see her as a political enemy?
Here, as in many other cases, Trump is something of an authoritarian innovator; legal experts told me that the prohibition on the president directing specific prosecutions or investigations has always been more a norm than a requirement. But it was the kind of norm that was rarely broken. “There have obviously been moments in our history where various different administrations have pushed their ability to influence the Department of Justice,” Rebecca Roiphe, a former prosecutor and a law professor at New York Law School, told me. But since Watergate, she said, “every attorney general who has assumed the role has, during their confirmation hearings, reiterated the importance of the independence of the Department of Justice.”
When Richard Nixon declared that “when the president does it, it is not illegal,” it was a scandal, but a faction of the conservative legal movement saw it as an ideal. Over time, more and more conservatives have pushed for an interpretation of the Constitution in which the president—at least if he’s a Republican—does not merely set policy or enforcement priorities, but can also personally direct any and all criminal or civil investigations. Anything less, they argue, would be an unconstitutional encroachment on executive-branch prerogatives.
One of the crucial barriers to using this power corruptly was the fact that, as Alexander Hamilton wrote in “Federalist No. 69,” the president could “be liable to prosecution and punishment in the ordinary course of law.” Until Trump, this was the consensus view—that’s why President Gerald Ford pardoned Nixon after the latter’s resignation. If anyone had actually thought that Nixon was immune, it wouldn’t have been necessary. It’s also why President Bill Clinton agreed to suspend his law license in a non-prosecution agreement with the federal government before he left office. Trump has also menaced his predecessors, which makes clear he thinks immunity belongs not to the office but to himself, personally.
Criminal liability, however, would have interfered with Trump’s return to office, and luckily for him, right-wing justices rewrote the Constitution to exclude it. In the Court’s 2024 ruling, the majority declared that Trump has full immunity to criminal investigation in the conduct of his official duty as president, shutting down the inquiry into his attempts to seize power by force after losing the 2020 election to Joe Biden—including Trump trying to use threats of prosecution to compel states to give Trump their electoral votes through the use of fraudulent electors. The “allegations that the requested investigations were shams or proposed for an improper purpose do not divest the President of exclusive authority over the investigative and prosecutorial functions of the Justice Department and its officials,” Chief Justice John Roberts wrote for the majority. Theoretically, Trump could still be prosecuted on the grounds that parts of his scheme were not “official acts,” but with the current Court composition, that’s about as likely as him naming Kamala Harris his vice president and then resigning.
Therefore, even corrupt uses of prosecutorial authority by the president—such as, say, trying to blackmail the chairman of the Federal Reserve—would be kosher. “When Trump says, Article II lets me do whatever I want, that’s exactly how he hears what the Court has said,” Peter Shane, a law professor at NYU, told me. “And it’s very hard, given the Court’s wording, to explain to him, No, that’s wrong.”
In the abstract, the Roberts Court’s argument may seem compelling; in practice, it is absurd. We can now see what its grant of immunity has produced: an attorney general who is little more than a mob lawyer, a Justice Department that is little more than a corrupt law firm with one client, and an entire legal system subsumed by the whims of a president who can spare his friends and persecute his enemies.
We don’t have to wonder whether Trump has compromised the Justice Department’s independence; we know he has, because he’s been very loud about it. In September, for example, he complained on Truth Social that Attorney General Pam Bondi had not yet indicted Senator Adam Schiff or New York Attorney General Letitia James. A subtler authoritarian, Roiphe pointed out, might try to keep his lawless directives secret.
“Imagine a president who campaigned on I’m gonna respect the independence of the Department of Justice, and then subsequently behind the scenes started pulling strings,” Roiphe said. “It’s not clear that the public would ever know that this was going on. The only reason why we are so aware of this is because President Trump has just not been even remotely shy about the fact that he’s doing this.” Indeed, The New York Times reported last Tuesday that the week before Powell’s revelation, Trump had told “dozens” of U.S. attorneys that “they were too weak, and needed to step up the pace of investigations of his enemies.”
Even the most fanatical devotees of executive power seem to understand that this abuse of presidential power is inherently corrupting, and some have sought to downplay its implications. Bill Barr, who was U.S. attorney general during the first Trump administration, reportedly threatened to resign in 2020 over Trump’s remarks regarding Justice Department investigations. “It’s very important that the attorney general make sure that there’s no political influence at stake involved,” he told NPR at the time. Barr—in Big Lebowski terms—at least had an ethos. The current attorney general, Pam Bondi, does not.
Thus far, the only obstacles to Trump’s attempts to prosecute his enemies have come from outside the executive branch—from juries that have refused to indict or convict, and from courts that have maintained proper legal procedure, even as Trump officials have flouted it. The judiciary can set its own ethical guidelines and standards, which is why Trump’s political prosecutions have come up against roadblocks in court. But under the logic of the Supreme Court’s ruling, it would be unconstitutional for Congress to, say, pass a law putting restrictions on the executive branch to ensure the independence of the Justice Department. You would need some kind of constitutional amendment for that.
Under the new conservative consensus on presidential power, Trump is welcome to refuse to investigate when government agents shoot Americans in the face, and he is welcome to try to charge their loved ones with crimes. He can openly blackmail government officials to manipulate the economy or to silence political opposition. No one can stop him from directing the Justice Department to indict his enemies for non-crimes while ignoring or pardoning the actual crimes of his political allies. He is free to be a tyrant, because the boss is the boss. But to me, it seems unlikely that the founding generation, in rebelling against a monarch, was looking to replace him with an even more wretched class of despot.