In a bold and unprecedented move, former President Donald Trump is planning to dismantle the independence of the Department of Justice (DOJ) should he win re-election. His aim is to transform the DOJ into an instrument of his Make America Great Again (MAGA) movement, enabling him to exert direct control over prosecutorial decisions and use the justice system to target his political adversaries.
At the core of Trump’s strategy is a desire to impose his will on the prosecutorial decisions of the DOJ, a radical departure from the half-century norm that has kept the department insulated from political interference by the president. If successful, Trump could eliminate federal prosecutions against himself and the January 6 insurrectionists, whom he has labeled “hostages,” and initiate legal actions against his perceived political enemies, including President Joe Biden and his family.
“I will appoint a real special prosecutor to go after the most corrupt president in the history of the United States of America, Joe Biden, and the entire Biden crime family,” Trump declared last year, despite a lack of evidence linking Biden to any criminal activity. His son, Hunter Biden, faced trial on Monday for allegedly falsifying a firearms license application.
Trump reiterated his intention to use the justice system against his opponents in a recent interview with Newsmax, suggesting that the prosecutions against him had set a “terrible precedent” that he would turn against Democrats if he won the presidency. “It’s a terrible, terrible path that they’re leading us to, and it’s very possible that it’s gonna have to happen to them,” he warned.
During his first term, Trump aspired to control the DOJ but faced resistance from top justice officials. Now, his determination to override this norm appears stronger than ever. Following his New York conviction on 34 counts of falsifying business records to cover up an affair with adult film actor Stormy Daniels, Trump and senior Republicans denounced the trial as “rigged,” echoing his baseless claims that the 2020 presidential election was stolen from him.
“His message is that whenever anything comes out in a way that isn’t positive for me, it’s illegitimate,” said Rebecca Roiphe, a law professor at New York Law School. “If people start to believe that, then really, you don’t have any rule of law.”
The principle of DOJ independence was established in response to President Richard Nixon’s abuses during the Watergate scandal in the 1970s, ensuring that while presidents can appoint the attorney general and set general law enforcement priorities, they cannot influence individual cases. This norm has endured for 50 years, but it remains vulnerable to attack. Roiphe co-authored a study concluding that DOJ independence, though a cornerstone of American democracy, could be dismantled by a president firmly committed to doing so.
Trump allies have been working to justify his potential control over federal legal decisions. Jeff Clark, on behalf of the Center for Renewing America, argues in an article titled “The US Justice Department Is Not Independent” that the practice of avoiding direct contact between the White House and the attorney general must be abolished. “Under the constitutional system as it stands, DOJ independence does not exist,” he wrote, advocating for the unitary executive theory, which grants the president sole power over all federal government affairs.
Clark was central to Trump’s most egregious attempt to seize control of DOJ decision-making during his first term. In January 2021, Trump tried to appoint Clark as acting attorney general in place of Jeffrey Rosen, who refused to support Trump’s election denial conspiracy. Senior DOJ officials threatened to resign, preventing Clark’s appointment.
Clark has now outlined a roadmap that would allow Trump to halt the federal prosecution for his role in January 6, in which Clark himself is an unnamed co-conspirator. Steve Bannon, Trump’s former chief White House strategist, suggested on his War Room podcast that the DOJ would be purged and restructured to “get rid of lots of personnel.”
A key early move would involve appointing an attorney general supportive of the unitary executive theory. Problems with Senate confirmation, intended as a check on presidential power, could be circumvented by appointing an acting attorney general without congressional approval. This official could dismiss current special counsel Jack Smith, paving the way for terminating Smith’s prosecutions against Trump, including the January 6 case and the charges related to Trump’s hoarding of confidential documents at Mar-a-Lago.
Trump has also proposed forming a task force to review cases of those he claims have been “unjustly persecuted” by the Biden administration, likely targeting January 6 rioters for pardons. Additionally, he has expressed a desire for revenge against critics from his first administration, including former chief of staff John Kelly, former attorney general Bill Barr, and ex-attorney Ty Cobb.
Roiphe warned that the criminal justice system’s structure, including grand juries and trial procedures, would make it difficult to prosecute innocent people. However, she expressed concern about the potential erosion of faith in the system, which could have dire long-term consequences. “That’s what happens in authoritarian states – there is a semblance of a legal system, but it becomes useless,” she said. “If that happens here it would be extremely troubling. We’re not there yet. But I do think a second term could cause significant damage that may or may not be permanent.”
As Trump’s ambitions to control the DOJ gain traction, the fundamental principles of American democracy face an unprecedented test. The outcome of the next election could determine whether the rule of law remains a guiding tenet of the nation or becomes a casualty of political warfare.
