US President Donald Trump makes his way to Marine One on the South Lawn of the White House on May 1. Photo / Demetrius Freeman, The Washington Post
President Donald Trump is bending the United States justice system to his personal purposes in a way that is unprecedented in American history, prompting significant questions about how a system built on independence will fare in the months and years to come.
Trump’s team has mounted a direct assault on all three pillars of the justice system, attacking judges whose rulings he dislikes, firing prosecutors for doing their jobs, and taking revenge on law firms for having clients or partners he considers hostile.
The President has also broken one of the chief taboos of an independent justice system by using it to attack his political enemies.
He personally ordered an investigation of his predecessor and one-time rival, former President Joe Biden.
And now Attorney-General Pam Bondi has ordered a grand jury investigation into allegations that Obama Administration officials broke the law while investigating Russia’s involvement in the 2016 election - assertions that have been investigated and disproved.
Bruce Fein, who served in the Justice Department under Presidents Richard Nixon, Gerald Ford, and Ronald Reagan, said Trump is trying to make the department a political arm of the White House, sending lawyers into court to make implausible arguments on issues such as deportation.
“It’s totally, completely unprecedented,” Fein said.
“The whole effort is to turn the department from being a professional organisation into one where you are told that unless you are an echo chamber of what Trump wants you to say, you will get fired.”
Trump is not the first president to be accused of trying to inappropriately sway the Justice Department.
John F. Kennedy appointed his brother Robert as the attorney-general. Nixon fired an attorney-general and his deputy when they refused to dismiss Watergate special prosecutor Archibald Cox.
However, Trump’s actions have been more far-reaching.
The White House argues that it was Biden’s Administration that politicised the Justice Department, going after Trump for matters that include allegedly seeking to overturn the 2020 election and taking classified files to Mar-a-Lago after he left the presidency.
Trump is seeking to depoliticise the department and hold the wrongdoers from previous administrations accountable, White House officials said.
“President Trump is restoring integrity to the Department of Justice after four years of weaponisation, hoaxes, and attempts to imprison him,” said White House spokesman Harrison Fields.
“The DOJ is upholding Lady Justice and working to execute President Trump’s Make America Safe Again agenda, which is lowering crime, holding criminals accountable, and empowering our law enforcement community.”
The White House’s influence over the Justice Department has been highlighted in recent days as Trump seeks to extricate himself from the furore over the Administration’s handling of the files on convicted sex offender Jeffrey Epstein.
The department transferred Epstein associate Ghislaine Maxwell to a minimum-security prison camp - a move that many experts say is unusual for someone with a 20-year prison sentence for sex crimes.
Deputy Attorney-General Todd Blanche, the Justice Department’s second-highest official, interviewed Maxwell last month, giving rare attention to a single case from such a prominent official. Blanche was formerly Trump’s personal lawyer.
Administration officials say it is not uncommon to shift prisoners from one facility to another, and that it is natural for a prominent official like Blanche to get involved in a high-profile case.
The Justice Department has always been a unique part of the federal government, answering to the president but often with an unusual measure of independence.
Equality under the law is enshrined in the Constitution, and the department was designed to be free to investigate everyone impartially, including personal friends and foes of the president.
Trump signalled from the outset his contrasting view that the department’s mission is to carry out his orders.
Still, many lawyers and legal scholars have been startled by the extent and reach of the control he has imposed.
Trump named two of his personal lawyers - Blanche and Emil Bove - to top Justice Department positions, and Bove has since been nominated and confirmed as a federal judge.
The President pardoned virtually all of those convicted for offences related to the attack on the US Capitol on January 6, 2021.
His Administration then fired dozens of career prosecutors, many of them apparently because their job was to prosecute January 6 defendants. Before Trump, career prosecutors were virtually never fired without cause.
“In the name of absolute executive authority, they are trying to turn US Attorney’s offices, and the federal enforcement system generally, into a straightforward instrument of presidential power to be used for political or personal goals,” said Daniel Richman, a former federal prosecutor who teaches at Columbia Law School.
“That is antithetical to the notion of a Justice Department that stands for something other than what the President wants.”
The President has also sought to extend his reach to the justice systems of other countries.
He ordered tariffs of 50% on goods from Brazil because he was unhappy that the country was prosecuting former President Jair Bolsonaro, who like Trump was charged with seeking to overturn an election.
Congressional Republicans have sought to bolster Trump’s pursuit of his perceived adversaries, although since Congress is an inherently political body, its actions are arguably less of a break from precedent.
Representative James Comer (Republican-Kentucky), chairman of the House Oversight Committee, has launched an investigation into whether Biden staffers improperly used an autopen to approve presidential documents due to what the congressman described as Biden’s “cognitive decline”.
Trump has made that assertion and ordered a federal investigation.
White House officials say it was clear that Biden was cognitively unfit at the end of his term, so it is appropriate to investigate whether actions were improperly taken in his name.
There have been no credible assertions that Biden was unable to make decisions or understand issues, though some Democrats and Republicans have said he was clearly ageing and had occasional memory lapses.
Yesterday, Comer issued subpoenas for communications between Biden and members of his Administration about Epstein.
He also subpoenaed prominent officials from past Republican and Democratic administrations, including Bill and Hillary Clinton, on issues related to Epstein.
Comer issued the subpoenas after one of his panel’s subcommittees, with some GOP support, voted to compel the Justice Department to release the files. Under House rules, Comer was then obligated to issue the subpoenas.
Congressional Republicans agreed with the White House assertion that Trump has been the victim, not the perpetrator, of the justice system’s politicisation.
“History will show that the Obama and Biden administrations’ law enforcement and intelligence agencies were weaponised against President Trump,” Senator Chuck Grassley (R-Iowa), chairman of the Senate Judiciary Committee, said recently.
“The new Trump Administration has a tremendous responsibility to the American people to fix the damage done and do so with maximum speed and transparency.”
Grassley made his comments in announcing the release of additional material on the FBI’s investigation of ties between the 2016 Trump campaign and Russia.
The Administration has fired or investigated a string of individuals who were involved in building cases against Trump after the end of his first term. The White House contends that those investigations were political, but Trump’s critics say he committed obvious offences and is now punishing those who sought to hold him accountable.
The independent Office of Special Counsel said recently it is investigating Jack Smith, the former Justice Department special counsel named in 2022 by Attorney-General Merrick Garland to investigate Trump for allegedly seeking to overturn the 2020 election and for keeping classified files after his presidency.
Federal prosecutors have also launched criminal probes into former FBI director James Comey and former CIA director John Brennan, two frequent Trump targets who were involved in the investigation of the 2016 Trump campaign’s ties to Russia.
Maurene Comey, Comey’s daughter and a federal prosecutor who worked on the Epstein case, has also been fired, without a clear reason.
“The Justice Department has been captured by partisan politics,” said Barbara McQuade, a former US Attorney for the Eastern District of Michigan.
“When I worked at the Justice Department through various administrations, Democratic and Republican, the people working as prosecutors were completely insulated from politics. We focused on facts and law, and nobody got in our way politically.”
McQuade, who was appointed by President Barack Obama and now teaches law at the University of Michigan, said the decision to reopen a probe into the former president over a matter that has already been investigated was dismaying.
“It feels like exactly what President Trump promised - vengeance against his opponents,” McQuade said.
“Hardball politics is one thing, but using the justice system for political reasons is different.”
Early in his term, Trump targeted major law firms that had done things like hiring lawyers the President considered hostile to him, threatening to end their federal contracts and bar them from government buildings.
Several of his orders have been thrown out by the courts.
Others have grown concerned about the Administration’s regular attacks on judges.
Trump has long made a habit of publicly criticising or mocking judges who have ruled against him, but in recent days the Justice Department raised the stakes by filing a misconduct complaint against US District Judge James Boasberg.
Boasberg has overseen cases involving the Administration’s efforts to deport alleged Venezuelan gang members. The complaint said he acted improperly by raising concerns at a recent judicial conference that the Administration would disregard court rulings.
Legal experts said the ethics rule cited by the Justice Department was aimed at a judge’s public comments - not private remarks at a closed-door judge’s conference.
Trump and his Administration have been accused of flouting numerous court orders in the more than 160 cases that have been filed against them.
McQuade said the complaint against Boasberg appeared to be an effort to cow him.
“While he and other judges may say they will not be intimidated, it sends a message,” McQuade said.
“Even if the complaint goes nowhere, there will be those in the public who will send threats and harass him, just because he was attacked by the Trump Administration.”
Some of the most scathing criticism came from US Circuit Judge Harvie Wilkinson, a conservative Reagan appointee who wrote an opinion in April on the Administration’s efforts to deport Maryland resident Kilmar Abrego Garcia.
Wilkinson warned that attacking the courts, as the Administration had been doing, could result in serious damage.
“The Judiciary will lose much from the constant intimations of its illegitimacy, to which by dint of custom and detachment we can only sparingly reply,” Wilkinson wrote.
“The Executive will lose much from a public perception of its lawlessness and all of its attendant contagions.”
Fein, the former Republican Justice Department official, said Trump is trying to end the courts’ ability to block presidential actions.
“He basically, in my judgment, is attempting to eliminate the judicial branch as a check on executive usurpation, over-reach and manipulation,” he said.
“The whole idea of equilibrium between the branches - it wasn’t perfect before, but now it’s at a new level.”