As Donald Trump moves fast to expand his influence over prosecutorial and legal decisions while revamping the US justice department, concerns are rising quickly about how he may abuse his powers to target political foes for “retribution” as he often suggested during his campaign, say ex-federal prosecutors.
Fueling those fears was the president-elect’s stunning decision to choose ultra-loyalist and firebrand Florida representative Matt Gaetz to be his attorney general and help fight what Trump calls a “weaponized government” that he says baselessly used a special counsel to file criminal charges against him for trying to subvert his 2020 election loss.
Trump’s pick of Gaetz quickly set off alarm bells among former justice department officials and some congressional Republicans who view him as unfit due to ethics and legal problems that for years have dogged Gaetz, and could seriously jeopardize his confirmation by the Senate.
Above all, the choice of Gaetz underscores the premium Trump places on selecting a loyalist who can help him expand his powers at the justice department to further his revenge agenda, and avoid the conflicts Trump had at times with Jeff Sessions and Bill Barr when they were attorneys general in his first administration.
“It’s an extraordinary choice,” said the former justice department inspector general Michael Bromwich. “In a world where there are plenty of lawyers willing to do Trump’s bidding, he chooses the candidate who has so much baggage. He’s testing his strength and if anyone in his party has the backbone to oppose him.
“Gaetz will not be able to obtain a security clearance because of the sex-trafficking criminal investigation that was finally closed a year ago, the House ethics committee investigation, and other acts of mischief. It’s hard to imagine he is capable of being confirmed even with a Republican majority in the Senate.”
Similarly, Daniel Richman, a law professor at Columbia University and an ex-federal prosecutor, deplored Trump’s choice of Gaetz. “Trump’s selection of him shows a contempt for the department that is sure to lead those within it, particularly in the DC area, to think hard about whether they can bear to stay,” he said.
But in tapping Gaetz, Trump lavishly praised him, declaring he “will end Weaponized Government, protect our Borders, dismantle Criminal Organizations and restore Americans’ badly-shattered Faith and Confidence in the Justice Department”.
Further, Trump’s picking Gaetz jibed with older concerns about Trump’s debunked claims he was the victim of a vendetta and “lawfare” led by the special counsel Jack Smith, who filed criminal charges against Trump for conspiring to subvert his 2020 loss and for improperly taking hundreds of classified documents after he left office.
Trump and his lawyers have vehemently denied Smith’s charges.
Last month, Trump said he would fire Smith in “two seconds” and that Smith ought to be “thrown out of the country”. Likewise, Trump’s multibillionaire ally Elon Musk said Smith “cannot go unpunished”, and the House judiciary chair, Jim Jordan, has warned Smith to “preserve everything” and suggested investigations could be coming.
Smith is now in the process of winding down his two investigations and planning to leave his post before Trump takes office in January given that Gaetz would almost certainly move to drop the cases at Trump’s request, say ex-justice department prosecutors.
Compounding concerns about Trump’s plans to exert more influence at the justice department was the US supreme court’s highly controversial ruling on 1 July that granted presidents wide-ranging immunity from prosecution for their “official” acts.
Critics worry too that the rule of law and the justice department will be badly weakened in light of Trump’s often calling those convicted of crimes for their violent actions during the January 6 insurrection to block the certification of Biden’s win “patriots”, and suggested that he would grant many pardons when he takes office.
In another sign on Thursday that Trump is moving aggressively to overhaul the justice department, he tapped Todd Blanche, the key lawyer who defended him against the Smith charges and the 34 counts of business fraud that he was convicted on in New York, to be deputy attorney general.
Ex-justice department officials say Trump risks violating historical standards of independence with his threats to punish his political enemies who besides Smith include Biden, the ex-House speaker Nancy Pelosi and others.
“Trump’s revenge agenda is utterly inconsistent with the Department of Justice’s standards for initiating investigations and prosecutions,” said Bromwich. “Anyone in DoJ who implements that agenda would violate not only historical practice but specific DoJ requirements embodied in its internal regulations.
“Although they might curry favor with the White House, they would subject themselves to misconduct investigations within DoJ – unless that function is neutered – and risk the loss of their license to practice law.”
In a related vein, Bromwich warned: “There is no doubt that the Republican Congress will be willing accomplices in the pursuit of Trump’s enemies, including people who investigated and prosecuted him. The saving grace is the incompetence of the investigators who demonstrated their ineptness – over and over again – in pursuing the impeachment of President Biden and various other wild goose chases.”
Other ex-prosecutors worry Trump now may move aggressively to target his political foes given the supreme court presidential immunity ruling this year.
“I have concerns about a Trump administration in which he now enjoys immunity from criminal prosecution,” said Barbara McQuade, a former top prosecutor in the eastern district of Michigan who now teaches law at the University of Michigan. “An order by Trump to his attorney general to prosecute his rivals would be barred from prosecution,” giving Trump a freer hand to target his foes.
McQuade noted: “Even a loyalist attorney general can’t prosecute a case without assistants. I am hopeful that career professionals at DoJ would refuse to carry out illegal orders [and] that could result in their resignations or firings, and then replacement by people who are willing to obey.”
McQuade stressed too: “After Watergate, the justice department installed norms designed to protect it from partisan influence. Gaetz seems determined to take a sledgehammer to those norms.”
Richman worries Jordan and other Trump allies could try to undermine justice department independence to further Trump’s revenge agenda and bring law enforcement personnel to testify before Congress on their past actions under the Biden administration. “Should this happen – and it may start with Jack Smith and the career prosecutors who worked with him – the damage to department morale and effectiveness will be grievous,” he said.
Meanwhile, it’s not clear what will happen with Smith’s extensive work documenting his charges against Trump for conspiring to overturn his loss in 2020 and leaving office with a large cache of classified documents
Smith is reportedly working on a final report about his findings in the two federal cases charging Trump with criminal conduct to submit to Merrick Garland, which the attorney general has the option of making public before he leaves office.
Smith also faces a decision about whether to indict any of the co-conspirators who were unnamed but widely identified in the election-subversion case, although any Trump allies he charged would very likely get presidential pardons, say ex-prosecutors.
In another legal area, critics say that if Trump goes ahead with granting many presidential pardons to January 6 insurrectionists as he has suggested, that would be very damaging to the rule of law and justice department morale. While Trump has hedged at times about just how many people he would pardon of the more than 1,500 convicted of crimes for taking part in the violent attack on the Capitol, he told a CNN town hall in May 2023: “I am inclined to pardon many of them.”
“I am concerned that he may recklessly and contemptuously pardon the most serious of the January 6 perpetrators despite their insurrection and violence,” Ty Cobb, a former Trump White House lawyer and ex-justice department official, said.
Cobb said he was concerned about Trump’s overhaul of the justice department and what the Gaetz pick portends. “I’m concerned about the integrity of the entire department given the Gaetz appointment. Vengeance for Trump and further violence to the rule of law beyond what Trump’s crimes to date have seen are the desired consequences of having Gaetz as AG,” he said.
