What Trump Means For: The Department of Justice

An expansive vision of executive power would allow the president to use the DOJ to prosecute his enemies.

Welcome Part 1 “What Trump Means For,” a multi-part series I’ll be publishing over the next several weeks as the 2024 election creeps closer. I’ll break down what Donald Trump and his current and probable future teams have said about how they will govern and exactly what they will do while in office. If Trump wins, he may not accomplish everything he pledges to do. But he will no doubt do a lot — and it’s worth taking seriously what he says and plans.

Hi readers, and welcome to the first edition of an issue-by-issue breakdown of what a Trump presidency might mean for some of the most important issues in the US and abroad. It’s easy to toss around general warnings about how dangerous and dictatorial Trump might be, but it’s probably more useful to go issue by issue and assess what Trump and those likely to work for him have said, proposed, or promised.

I’m starting with what I think will be the most significant for the largest number of Americans, and what could truly create an unfixable problem that plunges the country into chaos: Executive power. Sounds boring! Is actually really important. And the Supreme Court’s decision to radically expand presidential immunity from criminal prosecution has made many of these executive power-grabs not only more possible, but more dangerous. This installment will focus specifically on what near-limitless executive power might mean for the Department of Justice. Subsequent ones will look at the Fed, the Federal Communications Commission, and other key agencies.

The basic fact to understand about Trump’s planned executive power grab is that he will take what are typically nonpartisan and crucial agencies that work through many many presidencies and force them to do his bidding. This means he could make the Fed lower interest rates because it’s an election year or otherwise turn the short-term economic dial in his favor, even if that would essentially turn the US economy into a hellscape and make it so the US is no longer a steady, reliable economic force upon which much of the world’s financial stability depends. He could use the Federal Communications Commission (FCC) to tank media outlets that challenge him or accurately report on him. He could use the Department of Justice (DOJ) to target his adversaries. And on and on.

The consolidation of greater power in the executive branch has been a long-time conservative goal. During the George W. Bush presidency, 9/11 handed conservative proponents of greater executive power a new pretext for grabbing exactly that, and the Bush administration ran with it. Torture, radically-expanded warrantless surveillance — the most notorious excesses of the Bush administration were in the realm of executive power. Barack Obama did not, as some (me) hoped, do much of anything to cede the power Bush accrued in the executive branch; instead, he expanded that power further, using it to launch drone strikes and military operations in Libya and against ISIS without the consent of Congress. This is the thing with executive power: Once it expands, there is no incentive for any executive to give it back.

But the Trump administration plans for executive power-grabs are far beyond the scope of anything any past US president has attempted, and perhaps even imagined.

What This Means for the Department of Justice

One of the agencies Trump and his team have their eye on is the DOJ. During Trump’s first term, the DOJ’s independence was a pervasive thorn in his side. The former president was under the impression that the Attorney General worked directly for him, and should imply carry out his orders and directives.

“You know, the saddest thing is that because I’m the president of the United States, I am not supposed to be involved with the Justice Department,” Trump told one radio interviewer. “I am not supposed to be involved with the F.B.I. I’m not supposed to be doing the kind of things that I would love to be doing. And I’m very frustrated by it.”

He regretted his decision to appoint several very right-wing attorneys general because even those men — proponents of broad executive power, and men very willing to do the president’s bidding — had some lines they wouldn’t cross. He was angry at Attorney General Jeff Sessions for recusing himself during the Mueller investigation and that Sessions wouldn’t use the DOJ to investigate Hillary Clinton; Trump eventually fired him. Trump was angrier still at Sessions’s replacement, Attorney General Bill Barr, for not going along with his claims that the 2020 election was rife with fraud and stolen out from under him. The tension between the two eventually became untenable, and Barr stepped down.

Not everyone at the DOJ stood up to Trump. One high-ranking DOJ employee, Jeff Clark, aided Trump’s efforts to overturn the 2020 election, and found himself in legal hot water from DC to Georgia. Trump almost made Clark acting Attorney General after Jeffrey Rosen, who replaced Barr, also refused to go along with Trump’s plans to undermine the election results. Clark has a radical theory of executive power, arguing that the DOJ is simply not an independent agency — it should be under the control of the president. This is increasingly the view that the Trump team is adopting.

The Heritage Foundation and other right-wing architects of Project 2025 — the closest thing we have to a Trump 2024 agenda — also insist that the DOJ needs “a top-to-bottom overhaul.” Part of that, Project 2025 says, requires the Trump administration to “prepare a plan to end immediately any policies, investigations, or cases that run contrary to law or Administration policies.” And they are clear that the DOJ needs to shift from an independent agency to one under Trump’s direct control”

While the supervision of litigation is a DOJ responsibility, the department falls under the direct supervision and control of the President of the United States as a component of the executive branch. Thus, and putting aside criminal prosecutions that can warrant different treatment, litigation decisions must be made consistent with the President’s agenda. This can force line attorneys to take uncomfortable positions in civil cases because those positions are more closely aligned with the President’s policy agenda.

And they go further still, writing that “The next conservative Administration should embrace the Constitution and understand the obligation of the executive branch to use its independent resources and authorities to restrain the excesses of both the legislative and judicial branches.” Let’s put that in plainer language: The Trump administration should use its executive authority to lessen the authority of the courts and Congress. This is not an argument for a strong executive branch counterbalanced by a strong judiciary and strong legislatures; it’s an argument for a dictatorship of one.

So what are Trump’s priorities for a DOJ he controls? And what are his allies promoting? Here’s a smattering of the publicly-stated proposals on the table:

• Prosecute political opponents and those Trump believes have wronged him. In July, Trump reposted calls on TruthSocial for “televised military tribunals” and the imprisonment of a slew of his critics, from Joe Biden to Kamala Harris to Chuck Schumer to Nancy Pelosi to his own former vice president, Mike Pence, among many many others. This is far from the first time the former president has argued that those who oppose him should be behind bars. A DOJ under his authority is a DOJ that can be used to criminally target those he sees as a threat, or those from whom he simply wants retribution.

• Execute more prisoners. Project 2025 is clear: It wants the DOJ to ramp up executions, and essentially clear out its Death Row — due process (or basic humanity) be damned.

• Arrest and prosecute more civilians. Arrest and prosecute district attorneys who don’t comply. According to both Trump and Project 2025, many liberal cities and states have fallen down on their obligation to reduce crime. This doesn’t quite comport with the facts — crime is down nationally since its high point during Trump’s first term, and Republican-run cities tend to have higher crime rates than Democratic-run ones — but facts here are largely irrelevant inconveniences. And the Project 2025 plan isn’t just for the DOJ to step in and bigfoot local law enforcement; it’s to prosecute district attorneys and other local law enforcement officials if the Trump administration decides they aren’t doing enough to be tough on crime.

• Deploy the military and the National Guard to hunt down undocumented immigrants. I’ll get into this more in the immigration installment of this series, but a plan articulated by both Project 2025 and Trump himself is to deploy the military, the National Guard, and even local militias to round up undocumented people for placement in internment camps and eventual deportation.

• End all investigations into the administration itself. Should the president break the law, the DOJ will be told to look the other way. (And the Supreme Court has already given the president a green light to break the law with impunity).

• End all policies that conflict with the administration’s priorities. The example Project 2025 uses for this? Criminal prosecutions of abortion clinic protesters who turn violent or otherwise break the law.

• Go to bat for the president’s agenda no matter what. And face discipline for asking to be removed from a case or pushing back on what the administration wants.

• End the work of the Civil Rights Division as we know it. Instead of doing what the Civil Rights Division long has — investigating and prosecuting civil rights violations — a Trump DOJ should, according to Project 2025, ensure that the Civil Rights Division spends “its first year under the next Administration using the full force of federal prosecutorial resources to investigate and prosecute all state and local governments, institutions of higher education, corporations, and any other private employers who are engaged in discrimination in violation of constitutional and legal requirements.” To translate that from right-wing-speak: The Civil Rights Division should not worry about civil rights violations, but should instead target governments, colleges, companies, and private employers who so much as talk about racial, gender, and other inequities, or seek to end those inequities in their spaces.

• Stop focusing on voter suppression and start focusing on voter “fraud.” One of the Civil Rights Division’s tasks over the past several decades has been to investigate claims of voter suppression. There is a long history in the United States of Black voters in particular being prevented from casting ballots; the Civil Rights Acts of the late 1960s sought to remedy this ugly reality, and the DOJ’s Civil Rights Division has since then paid at least some attention to it. Not under a Trump administration. Instead, efforts to make sure American citizens can vote will be redirected to specious claims of election fraud and interference — to make sure that Americans are voting the way Trump and his right-wing supporters want them to vote. Project 2025 recommends moving election-related cases and investigations away from the Civil Rights Division and to the Criminal Division — an effort to criminalize state officials who don’t toe the line, and to count fewer ballots.

• Criminalize the abortion pill. I’ll have more on this in the abortion section of this series, but Trump and those around him are preparing to use the Victorian-era Comstock laws, which criminalized the mailing of “obscene” materials including contraceptive devices and information about abortion, to criminalize abortion pills.

• Replace DOJ and FBI employees with Trump loyalists. Just… that.

To be clear: This is not a comprehensive list of all of the plans, proposals, and suggestions flying around. It is almost surely not a comprehensive list of what Trump will do once in office. But it is a list of the ideas that come up again and again, from both conservative advocacy groups with Trump’s ear and from the former president himself.

Trump has offered little in the way of clear plans for his second term, and his party has made itself so slavishly devoted to him that it has simply stopped publishing a national platform beyond “whatever Trump says.” This is the stuff of dictatorships, not democracies, and leaves us with little option but to look at what Trump says and seems to be prioritizing. His core issues: Punishing his enemies; cracking down on immigrants; being tough on crime; molding the economic rules to his liking. The first three of these aims are within the purview of the DOJ. And so you can bet that making that agency an aggressive arm of his administration will be very, very high on his presidential To Do list.

xx Jill

p.s. If you want to read this series as it comes out, please do upgrade to a paid subscription — future installments will go out to paid subscribers only. If you can’t afford a paid subscription but want to keep reading, just send me an email and I’m happy to comp you. Thank you as always for reading, and for your ongoing support.