Former New Jersey Gov. Chris Christie, a one-time ally turned critic of President Donald Trump, observed recently that Trump has torn down the traditional barrier between the president’s personal ambitions and the Justice Department’s power to investigate and prosecute criminal wrongdoing. “He absolutely rejects the idea that there should be separation between criminal investigations and the politically elected leader of the United States,” Christie, who is also a former US Attorney, said last month on ABC’s This Week. As if to prove Christie’s point, Trump publicly threatened to prosecute Christie just a few hours later.
The Trump immunity decision “helped underwrite the era of presidentially-directed reprisal and retribution.”
Christie’s observation wasn’t even controversial. The guardrails that until recently kept the president from siccing prosecutors on his political rivals are gone. Trump publicly says as much: Answering questions about last month’s FBI raid targeting John Bolton, his former national security adviser, Trump affirmed, “I could be the one starting it. I’m actually the chief law enforcement officer.”
Not long ago, that would have been a bold statement. After all, the Justice Department’s own website still assigns that job to the attorney general. But Trump has seized investigative and prosecutorial weapons that, in order to safeguard the rule of law, have traditionally been walled off from the president.
The Supreme Court handed him these loaded weapons. While it was little remarked upon at the time, last summer’s presidential immunity decision from the Republican wing of the Roberts’ Court gave the president the power to launch any investigation or prosecution he wanted, with real or fabricated evidence, without any repercussions. Just a year later, we are seeing the unprecedented weaponization of the DOJ.
Chief Justice John Roberts’ opinion in Trump v. United States announced for the first time—and to the shock of much of the legal world—that the president is immune from criminal prosecution for actions that are part of his core presidential powers, and has presumptive immunity for all other official acts. The immediate result was to delay and ultimately derail the federal prosecution of Trump for attempting to overturn the results of the 2020 election. But legal scholars soon pointed out that the opinion went much further than immunity. It was not just a shield but also a sword, giving the president untouchable power to use the Justice Department to investigate and prosecute whoever he wanted—even in sham proceedings launched for political retribution.
“The most surprising and consequential ruling in Trump is that ‘the president has exclusive authority over the investigative and prosecutorial functions of the Justice Department and its officials,’” Harvard’s Jack Goldsmith wrote in February. Just weeks into Trump’s second term, Goldsmith, who ran the department’s powerful Office of Legal Counsel under George W. Bush, was already arguing that the Trump decision’s new and expansive view of presidential power was animating the administration’s aggressive executive orders—and that the ruling would undergird Trump’s battle against the civil service and any remnant of agency independence.
This includes, first and foremost, the DOJ. “The Attorney General, as head of the Justice Department, acts as the President’s ‘chief law enforcement officer,’” Roberts wrote in his majority opinion. The principle is that the attorney general neither serves the people nor the law—they serve the president. The consequences for Trump’s political rivals are already all too clear, with the DOJ having transformed in months from a neutral enforcer of the law to a personal legal office for a vengeful president.
“In seeking to shield the President from cycles of political revenge,” Trevor Morrison, a constitutional law professor and former dean at New York University School of Law, writes in an upcoming law review article, “the Court’s recklessly broad reasoning helped underwrite the era of presidentially-directed reprisal and retribution in which we now find ourselves.”
In the immunity decision, the justices had to decide whether a former president could be prosecuted for weaponizing the Justice Department to overturn an election, as Trump had done. The GOP appointees decided that using the DOJ in furtherance of a crime was actually kosher for a president. In doing so, they decided that directing investigations and prosecutions was within his “conclusive and preclusive” authority. Such presidential powers cannot be regulated by Congress or the courts.
“He could use the DOJ to obstruct justice. He could use the DOJ as leverage for extortion.”
“The Trump Court said explicitly that the President’s exclusive and preclusive power over investigation and prosecution includes the power to direct sham investigations and prosecutions, i.e., ones that have no lawful basis,” explains Morrison. “We have never thought that before.”
The result is that investigations and prosecutions can now be untethered from reality. Should prosecutors lack evidence for a prosecution, Trump could instruct them to make it up without facing any risk of consequence. Similarly, he could instruct them to perjure themselves or hide evidence. “He could use the DOJ to obstruct justice,” says Jed Shugerman, a law professor and historian at Boston University School of Law. “He could use the DOJ as leverage for extortion.”
This is a far cry from what Congress envisioned when it created the Justice Department in 1870, crafted by the same legislative coalition that hoped to oust partisan patronage from government and establish a neutral and professional civil service. “The Republicans who created the Department of Justice experienced presidential bad faith and partisanship and corruption,” says Shugerman, who documented the goals of the DOJ’s creators in a 2014 law review article. “They created a Department of Justice to be more professional and independent in order to protect it from presidential corruption.”
At the time, the president didn’t have the power to remove the attorney general without the consent of the Senate, with that ability having been taken away after President Andrew Johnson used it to try to end Reconstruction. Thus the Justice Department was created to centralize federal law enforcement under an attorney general with independence from the president—a far cry from both Robert’s declaration that the attorney general is the president’s personal law enforcer, and from the leverage that presidents now exercise over the attorney general and other officials through firing power.
While the independence of the department ebbed from time to time, every administration since Watergate has maintained a strict separation between the Justice Department and the White House—until Trump’s first term. Breaches of this norm have became national scandals. In 2006, the politically-motivated firings of at least seven US attorneys was widely seen as undue interference in the department by George W. Bush’s White House, miring the administration in scandal and leading to the resignations of the attorney general and multiple other DOJ officials.
Fast forward to 2024 when Roberts announced in Trump that, contrary to the vision of the department’s founders and virtually every attorney general in modern history, who hoped to insulate law enforcement from political corruption, the DOJ was to serve at the pleasure of the president—even in the service of corruption. “The indictment’s allegations that the requested investigations were ‘sham[s]’ or proposed for an improper purpose do not divest the President of exclusive authority over the investigative and prosecutorial functions of the Justice Department and its officials,” Roberts wrote, practically inviting presidents to abuse their authority.
Today under Trump, there is a long list of politically-motivated investigations and prosecutions taking place. These include investigations of mortgage fraud against Sen. Adam Schiff (D-Calif.), who oversaw Trump’s 2019 impeachment, New York Attorney General Leticia James, who went after the Trump Organization for fraudulent business practices, and Federal Reserve Board Governor Lisa Cook, who is an obstacle to his attempted takeover of monetary policy. In August, the FBI raided Bolton’s home and office as part of a new investigation against a critic. The administration is also known to be investigating former New York governor and NYC mayoral candidate Andrew Cuomo, former C.I.A. director John Brennan, and former F.B.I. director James Comey. In April, Trump signed executive orders instructing the DOJ to investigate two members of his first administration who crossed him, Miles Taylor and Chris Krebs. And the DOJ has charged Rep. LaMonica McIver (D-N.J.) with “forcibly impeding and interfering with federal officers” over a chaotic interaction at an immigration detention facility.
There’s no reason to assume that a court could ensure the president’s revenge tour was limited by facts and evidence.
A few months ago, any one of these would have been scandalous, and should have been. But after Trump v. United States, any attempted oversight or course correction could run up against the president’s new, exclusive powers over investigation and prosecution. The Supreme Court has made clear that no other branch of government may intervene. Under the logic of Trump, “this Court would strike any other attempts to create independent counsel, independent prosecutors, or independence within the Department of Justice,” says Shugerman.
Unlike in 1870, DOJ independence has for decades been more protected by norms than by laws. It’s not illegal for a president to request that the Justice Department investigate a political rival—and previous presidents could have initiated such investigations before the Trump decision if a federal prosecutor would have agreed.
Congress still has some leverage to protect the DOJ, should they choose to use it, says Bruce Green of Fordham School of Law, from drastic measures like refusing to confirm appointments or withholding the DOJ’s budget to more traditional oversight. (Take Rep. Jamie Raskin, a Maryland Democrat, who has requested information about the mortgage fraud investigations.) But what the Roberts Court did was place neutrality and independence in direct opposition to the law. Those norms suddenly seemed obsolete after the Supreme Court decided the DOJ acts at the pleasure of the president.
Because DOJ independence is a norm, Trump v. United States hasn’t directly greenlit the political prosecutions we are witnessing seven months into the second Trump administration, as long as the DOJ isn’t fabricating evidence or committing other crimes in pursuing them. Arguably, the biggest difference between Trump’s power to direct a politically-motivated prosecution now and in his first term is the willingness of Attorney General Pam Bondi and her underlings to go along.
While the president himself is now immune from criminal liability if he orders a false investigation, his subordinates might still fear punishment if they break the law carrying out his orders. Green believes that threat remains a powerful check on unlawful prosecutions. Anyone who “falsifies evidence and introduces false evidence or perjury that they know is false, that’s a crime, and everybody but the president can be convicted of it,” he says. Since Trump came down, many legal experts, including Goldsmith, have relied on the fact that subordinates are not immune to argue that the court’s decision will not usher in an age of presidentially pushed lawlessness.
But Morrison believes that, under the logic of Trump v. United States, the Supreme Court did in fact immunize subordinates when carrying out the president’s core powers. “When it comes to investigation, prosecution, and law execution more generally, the Court’s finding of conclusive and preclusive presidential authority means that presidential subordinates who implement the President’s directions are just as immune as he is,” Morrison writes in his upcoming article, titled All the President’s Men. If he’s right, then there’s no reason to assume that a court could step in and ensure the president’s revenge tour against his perceived enemies be limited by facts and evidence. (And, putting the debate aside, there’s no reason to think the president’s pardon power couldn’t confer immunity anyway.)
Perhaps the Supreme Court itself will ultimately clarify how far the president’s immunity extends. Morrison’s article urges the court to hem in its ruling, and wonders if Roberts intended to go as far as Morrison believes the ruling did in granting the president and his subordinates unregulated new powers.
“Being prosecuted, even without a conviction, is… an enormous abuse of power when it’s done in bad faith.”
But there’s reason to believe that the court would, given the opportunity, actually explicitly extend immunity to subordinates. The Trump v. United States decision says that criminal prosecution of presidents would impede the Framers’ vision of an “energetic” executive and the “‘speedy execution of the laws.’” If subordinates, fearful of prosecution themselves, do not obey the president’s orders—particularly those within his core powers—then immunity for the president alone would not be enough to ensure the vigor and speed that Trump sought. “It would be shocking, but not surprising, for the Supreme Court to somehow extend executive immunity for following a president’s orders,” Shugerman says.
This calculus, of privileging presidential prerogative over the tedium of abiding the law, has shown through the court’s repeated pro-Trump rulings over the past few months, as the GOP-appointed justices have repeatedly greenlit his actions of dubious legality, from allowing the president to cripple federal agencies to deporting non-citizens to any country the administration wants. The clearest explanation for these rulings is that the Roberts Court believes that the president’s authority to act is more important than courts’ ability to ensure that the president follow the law.
Of course, you don’t need to have lawless prosecutions to find yourself in an authoritarian regime. While law breaking certainly seals the deal, weaponizing otherwise legal criminal prosecutions is a hallmark of the modern authoritarian state. Take the three investigations for mortgage fraud, all initiated by Bill Pulte, a Trump loyalist running the Federal Housing Finance Agency. That perch allowed Pulte to go through the files of people the administration wants to fire, sideline, discredit, and harass—which is exactly what autocrats do. While that’s an obvious abuse of power, it’s not clear Pulte broke any law to do so. Kim Lane Scheppele, a Princeton expert on democratic backsliding, notes that Viktor Orban, Hungary’s autocratic prime minister, likewise found the places where his rivals’ finances were visible from within the government and used that information to initiate prosecutions—even when the charges were baseless. “I’ve seen that script before,” Scheppele says. “Orban’s tactics are really in use here.”
Roberts’ reckless and authoritarian opinion in Trump v. United States opened up a world of political reprisal and possibly unpunishable illegal prosecution. But what it did not do, and could not have done, is guarantee that those prosecutions succeed. Only juries—the ordinary citizens who play a critical role in our system of justice—can convict. Similarly, grand juries can deny prosecutors the charges they seek to pursue. Just recently, a grand jury in Washington, DC declined to indict a man who threw a sandwich at a federal officer occupying the capital.
“Grand juries and trial juries will still be a last stand, a constitutional protection against total abuse and getting convictions,” says Shugerman. “Nevertheless, being investigated and being prosecuted, even without a conviction, is an enormous burden and an enormous abuse of power when it’s done in bad faith.”
“The real power that’s been unleashed here,” says Morrison, “is a power to harass.”
This post has been syndicated from Mother Jones, where it was published under this address.