Trump's Corruption of the Justice Department

The true weaponization has arrived

There is a firehose of news coming out of Washington, with president Trump’s flurry of Executive Orders and other aggressive moves to implement his agenda. Dozens of lawsuits have already been filed to challenge his actions, and the Trump administration is losing most of them so far. The courts may act as a check on some of Trump’s worst excesses - at least until the administration decides to simply defy court orders it doesn’t like. But one area of particular concern to me, and that likely can’t be stopped through litigation, is Trump’s assault on the integrity and independence of the Justice Department.

Department of Justice, Washington D.C.

Trump campaigned on the false claim that the justice system had been “weaponized” against him and his allies. On his first day in office he signed an Executive Order calling for an end to this supposed weaponization. His new Attorney General Pam Bondi fell in line, forming a working group to examine what she called politically motivated acts within the Justice Department and to investigate the prosecutors who pursued cases against Trump.

Trump’s phony claims of victimhood are nothing new. But in true Alice-in-Wonderland fashion, it is Trump who, while decrying “weaponization” of the justice system, is deploying that system to support his political agenda and exact vengeance on his opponents. The true weaponization has now arrived.

Whitewashing January 6

One of Trump’s first official acts after being sworn in was to pardon everyone charged in the January 6, 2021 Capitol riot, including those who violently assaulted law enforcement officers. As I wrote here, this was a grave abuse of the pardon power and a slap in the face not only to those victims but to all the prosecutors, FBI agents, and judges who worked for four years to bring the Capitol rioters to justice.

The January 6 Pardons

But the pardons were just one step in Trump’s efforts to rewrite the history of January 6. Trump wants the public to believe that those who attacked the Capitol on his behalf really did nothing wrong. He argues the fault lies with the prosecutors and law enforcement officers who pursued these cases. The rioters, he claims, were treated unfairly by a weaponized justice system. They are the true victims.

To further that narrative, following the pardons the leadership at Trump’s Justice Department quickly moved to fire or reassign dozens of prosecutors who had worked on the January 6 cases. Acting Deputy Attorney General Emil Bove III ordered the acting director of the FBI, Brian Driscoll, to fire eight senior FBI executives who were involved in the investigations and prosecutions of Trump. He also ordered Driscoll to turn over a list of the names of every FBI agent involved in any January 6 case, raising fears of further retaliation. Driscoll resisted at first, resulting in Bove accusing him of insubordination. After the FBI General Counsel determined that the order was lawful, however, Driscoll complied and supplied the list. (Use of the list, and whether it can be made public, is now the subject of litigation.)

This purge, of course, is not just a matter of Trump exacting revenge. It is also intended to further the narrative that these prosecutors and agents did something wrong by bringing these cases and deserve to be disciplined.

In addition to firing dozens of January 6 prosecutors, acting U.S. Attorney for D.C. Ed Martin has launched an internal probe of the use of an obstruction of justice statute, 18 U.S.C. 1512(c), in the prosecution of hundreds of those cases. The statute applies to obstruction of official proceedings, and prosecutors charged that some rioters sought to obstruct the Congressional proceeding to certify the election results. In an email to his office, Martin said the use of that statute was a “great failure” by the office and that they needed to get to the bottom of how it happened. He ordered members of the office to assemble and turn in all files, documents, notes, and other information about the use of the statute.

This is dangerous nonsense. As I’ve argued in the past, using 18 U.S.C. 1512(c) to prosecute Capitol rioters was perfectly reasonable and defensible. Fourteen out of fifteen federal district judges in D.C. who considered challenges to the statute agreed that it was appropriate, as did two of the three judges in the D.C. Circuit who heard the case on appeal. The Supreme Court ultimately narrowed the scope of the statute in a 6-3 opinion, holding that it is limited to cases that involved the impairment of evidence in a proceeding. Even then, prosecutors were able to pursue the charge in some January 6 cases, based on an argument that the integrity of the electoral ballots was threatened or that defendants sought to introduce fake electoral ballots into the proceeding.

The claim that the Supreme Court’s decision to narrow the statute means using it was a “great failure” is baseless. The Court may have the final say on the statute’s scope, but that doesn’t mean the prosecutors’ contrary interpretation was wild or improper, especially when so many other federal judges agreed with them. And most defendants charged with obstruction were also charged with other crimes such as assaulting police officers or destroying property at the Capitol. It’s not as though they were singled out and charged only with a crime that Martin now believes was inappropriate.

It’s not clear what the scope of Martin’s review will be or whether any discipline of other prosecutors will result. But once again, what’s really going on here is an effort to rewrite history. The goal is to suggest that the fault regarding January 6 lies not with those who assaulted the Capitol but with overzealous prosecutors who improperly stretched a federal statute to go after them.

The January 6 investigation was the largest in Justice Department history. I’d argue that managing that investigation and bringing more than 1,000 criminal cases was one of the D.C. U.S. Attorney’s office’s finest hours (although it actually took years). The idea that these prosecutions were a “great failure” that needs to be investigated is just flat wrong. It’s also an insult to the career prosecutors and agents who worked to hold the Capitol rioters accountable.

I can’t imagine what morale is like in my old office. These events are a career prosecutor’s worst nightmare. They were doing their jobs, and doing them well, by pursuing these cases. Now they are having their actions criticized and investigated for political reasons. People there have devoted their careers to protecting the rule of law and keeping politics out of criminal prosecution. They did not sign up for this.

More Politics at the D.C. U.S. Attorney’s Office

The problems at my old office go far beyond just the response to the January 6 prosecutions. As I mentioned above, Trump has appointed Ed Martin as the acting U.S. Attorney for the District of Columbia. Martin is a Republican politician and lawyer who has no experience as a prosecutor. He has been active in Missouri Republican politics and in the Eagle Forum group founded by Phyllis Schlafley. He was a “Stop the Steal” organizer for Trump after the 2020 election and helped raise money for January 6 defendants. As a private attorney he represented three of those defendants, including one convicted of assaulting a police officer with an ax handle.

Martin is a Republican politician and activist, not a prosecutor, and that’s exactly how he has been behaving. A prosecutor’s job is to defend the rule of law and the justice system. Martin clearly believes his job is to use the power of his office to promote Trump and Elon Musk’s political agenda.

For example, consider this remarkable fan letter to Elon Musk that Martin posted on X, promising to protect the work of Musk’s DOGE group:

Martin vows to pursue those who might dare to resist Musk’s hostile takeover of the federal government, even if their conduct is not illegal but is merely (in Martin’s view) unethical. Federal prosecutors, of course, don’t have the authority to investigate mere ethics violations. That apparently won’t stop Martin from pursuing such people “to the end of the Earth.” (Seriously, someone needs to explain federal venue rules to this guy.)

Then there’s the fact that this letter, according to Martin’s post, was sent only via X. If you want to send Elon a message, you send him an email. Why post the letter only on social media? Once again, it’s politics, not federal prosecution. It’s designed to make Martin sound like a tough guy who will protect Elon. It’s also designed to deter anyone who might dare to challenge what Musk is doing by threatening to use the power of the federal justice system to punish them. Fall in line, people, or the U.S. Attorney will come after you — even if your conduct is lawful.

Martin has also praised president Trump for pardoning two D.C. police officers who were convicted in 2020 for murder and obstruction of justice for causing the death of a moped driver following a high-speed chase and then covering up what happened. This was a case brought by career attorneys in what is now his own office. Martin apparently believes the prosecution was political and that a pardon is appropriate because the victim was “scum” and a “thug”:

Put aside the political potshot at Biden, something a prosecutor who properly understood his role would not do. Martin is claiming again to be a tough guy who stands with and will protect the police. Note that this is the same guy who praised Trump’s pardon of hundreds of defendants convicted or charged with assaulting law enforcement officers during the January 6 riot - including one of Martin’s own clients. That’s a very odd way of showing that you “stand with the Blue.”

Irony and hypocrisy have long been dead in Washington. But Martin is dancing on their graves.

Dropping the Eric Adams Case

On Monday the Justice Department ordered federal prosecutors in New York to dismiss the criminal case against New York City Mayor Eric Adams. The order came in a remarkable memo to New York prosecutors from Emil Bove III, the acting Deputy Attorney General and one of Trump’s former personal criminal defense attorneys.

Following a three-year investigation, Adams, a Democrat, was indicted last September on corruption and fraud charges. Prosecutors charged him with accepting more than $100,000 in luxury travel benefits in exchange for doing political favors for Turkish officials and with obtaining illegal foreign campaign contributions. In the most serious aspect of the indictment, they also charged that Adams used those illegal donations to fraudulently obtain millions of dollars in matching campaign funds from the city.

In the memo, Bove wrote that the order to drop the prosecution was made “without assessing the strength of the evidence or the legal theories on which the case is based.” He also wrote that the order “in no way calls into question the integrity and efforts of the line prosecutors responsible for the case.” But he said dismissal was required because the timing of the indictment suggested it was brought in retaliation for Adams speaking out against the Biden Administration’s immigration policies. Bove claimed this had improperly interfered with Adams’s campaign for re-election, in violation of Justice Department policy. He also claimed the case was interfering with Adams’s ability to devote time and attention supporting the Trump administration’s efforts to fight illegal immigration.

In other words: we’re not saying there’s anything wrong with the case. We are just ordering you to drop it for political reasons, so Adams can help carry out the president’s agenda. This is a breathtaking act of political interference from the White House in an ongoing criminal prosecution and a violation of the Justice Department’s Principles of Federal Prosecution.

In recent months Adams has been cozying up to Trump and urging city officials not to resist his proposals. He made a recent trip to Mar-a-Lago to kiss the ring, and his lawyers had been pitching Trump officials to drop the case and/or pardon Adams. Trump believes that his fellow New Yorker is another victim of a political “witch hunt” by prosecutors; at a dinner in New York last October he said that both he and Adams had been “persecuted.”

Bove’s suggestion that the indictment improperly interfered with Adams’s re-election in violation of DOJ policy is ridiculous. The policy of not taking overt steps in a criminal investigation that might interfere in an election is sometimes referred to as the “90-day rule;” DOJ generally will avoid such steps if the election is less than 90 days away. In this case, Adams was indicted eight months before the upcoming Democratic primary and more than a year before the 2025 mayoral election. The claim that this indictment violated DOJ policy amounts to a claim that a politician or candidate can never be indicted, no matter how distant their next election — at least not if you’re one of the president’s buddies.

But the even more remarkable aspect of the memo is the statement that dismissal is necessary because otherwise it might be too difficult for Adams to help carry out the president’s agenda on immigration and violent crime. There was a time when a president’s demand that a criminal prosecution of one of his allies be dropped for political reasons would have led to a “Saturday Night Massacre” series of resignations by officials refusing to send such a letter. Now the president’s personal attorneys who lead the Justice Department have no problem using the criminal justice system to support Trump’s political agenda.

The U.S. Attorney’s Office for the Southern District of New York is famously independent, earning it the nickname the “Sovereign District of New York.” It will be interesting to see how they react to the order to drop the case. There’s no doubt it ultimately will be dismissed, but we might see some prosecutors noisily resign in protest. The judge assigned to the case may also press prosecutors on the reasons for dropping the case, but in the end has little power to prevent it.

Bove ordered that the case be dismissed without prejudice, meaning that in theory it could be refiled in the future. That will give Trump more leverage to keep Adams in line; there will always be the implicit threat of bringing the case back if Adams makes Trump unhappy. There is also some discussion about whether the Manhattan DA could bring similar state charges that would be beyond the reach of Trump’s power. I don’t know how likely that is, but it’s something to watch.

Dark Times Ahead

I wish I had some better news or could point to a bright side in all of this. Less than a month into the new administration, things look pretty grim for the Justice Department. These early events are signs of how bad things can get in the next four years. DOJ is going to lose a lot of talented career people with years of experience and institutional knowledge who will decide they can’t put up with this. And the public is going to lose a lot of faith in the institution.

Because so much of the justice system relies on voluntary norms and the good-faith exercise of discretion, it’s much more difficult to defend that system against those who seek to corrupt it. Unlike many of Trump’s actions, his assault on the DOJ can’t readily be challenged in court. No one can file a lawsuit to reverse the decision to drop the Adams prosecution, or to undo Trump’s pardons, or to prevent officials from falsely claiming that the January 6 prosecutors and agents somehow misbehaved.

Hopefully in a future administration a new Attorney General will come in with the mission to restore the integrity and independence of the Justice Department, as happened during the post-Watergate era. But right now that seems a very long way off. I don’t know if the damage Trump is doing will be reversible.