Trump Says the DOJ Is Politicized. If He Wins, It Will Be.

Donald Trump has been indicted three times in four months. He faces charges in New York, DC, and Florida, with Georgia expected to join the list soon. Those cases, in local and federal courts, include 78 separate counts for crimes he allegedly committed in 2016, 2020, 2021, and 2022.

The most likely explanation for this litany of alleged crimes is that the former president is a criminal—a guy who concluded that he was above the law, broke laws with abandon, and now, without the presidency to protect him, faces a backlog of criminal consequences. The courts—jurors and judges—will ultimately decide his guilt or innocence if the cases make it to trial.

But for Trump and many of his fans, the rising pile of charges against him seems to be reinforcing the view that he is the innocent victim of a conspiracy aimed at keeping him out of the White House.

Trump is not pretending he’d respect even the appearance of prosecutorial independence.

Trump was hit Tuesday with a four-count indictment alleging that he mounted three criminal conspiracies to overturn his 2020 election defeat. Even before the indictment appeared, Trump claimed that Jack Smith—the special counsel overseeing both that case and the prosecution related to Trump’s hoarding of classified documents—timed the new charges “to put it right in the middle of my campaign.”

House Speaker Kevin McCarthy was even more specific, tweeting Tuesday that Smith released the indictment to “distract from” supposedly new allegations about Hunter Biden. McCarthy suggested that the timing of the charges was connected to a Monday poll showing that “President Trump is without a doubt Biden’s leading political opponent.”  

There are obvious logical problems with claiming Smith, in 24 hours, concocted entire indictments to counter news developments. Still, these claims reflect the broader argument that the charges against Trump stem from the politicization of the justice system and the “weaponization” of the DOJ by Biden. Trump’s supporters, and a solid plurality of likely GOP primary voters, seem sold on the notion Trump did nothing wrong, and that prosecutors are persecuting Trump for partisan reasons.

There is, of course, no evidence that Biden or his appointees have improperly pressured the Justice Department or local prosecutors to target Trump. Attorney General Merrick Garland, eager to avoid the appearance of a politicized prosecution, in fact appointed Smith as special counsel after Trump announced his 2024 bid.

It is not news that Trump is pushing baseless allegations or that House GOP leaders are pretending to agree with him. It is, however, striking that these complaints about alleged DOJ politicization are coming at a time when the former president is declaring, out loud, in writing, often and credibly that he intends to politicize the hell out of the DOJ.

Trump is leading an attack on the supposed weaponization of the Justice Department while explicitly vowing, if he is elected president, to use the Justice Department to prosecute his enemies and to protect his allies, most notably himself. Whatever Trump supporters imagine Biden is secretly doing, Trump is publicly pledging to do far more aggressively. 

Trump said in June that he would appoint a special counsel to “go after” Biden—ignoring the fact that the point of special prosecutors is to try to insulate them from presidents telling them who to investigate. Trump has also vowed to use the DOJ to target local prosecutors who have displeased him. “On day one of my new administration, I will direct the DOJ to investigate every radical district attorney and attorney general in America for their illegal, racist…enforcement of the law,” Trump said in April. 

This presumably includes prosecutors like Alvin Bragg in Manhattan and Fani Willis in Fulton County, Georgia, who are investigating Trump.

Biden has made a point of touting Garland’s independence. While critics question his sincerity, Biden certainly accepted Garland’s decision to leave in place David Weiss, the Trump-appointed US attorney for Delaware running an investigation into Hunter Biden, as well as special counsel John Durham, who led an attempt to undermine the origins of the Trump-Russia investigation.

Trump is not pretending he’d respect even the appearance of prosecutorial independence. Trump has said that if he wins, he would fire Smith. And he’s hinted he’ll go even further. “They ought to throw Deranged Jack Smith and his Thug Prosecutors in jail,” Trump recently declared. It is widely taken as a given that Trump would attempt to pardon himself or otherwise end the federal prosecutions he faces if he wins the presidency.

“I will direct the DOJ to investigate every radical district attorney.”

Trump, obviously, tried during his first term to exert control over the DOJ. While under FBI investigation, he fired FBI director James Comey and even threatened Comey with jail time. He tried repeatedly to fire special counsel Robert Mueller, efforts that Mueller later suggested met the criteria for obstruction of justice, though DOJ policy against indicting sitting presidents helped Trump avoid charges. Trump publicly raged at and later ousted Attorney General Jeff Sessions over Sessions’ decision to recuse himself from the Trump-Russia investigation. It later emerged that Trump also pressed Sessions to launch investigations into dubious allegations about Hillary Clinton. Trump in effect tried to carry out his campaign pledge to “lock her up.”

Former aides have also said Trump attempted to block DOJ prosecution Chinese and Turkish businesses to seek favor from autocrats in those countries. Trump also reputedly urged the DOJ to prosecute political enemies. 

Many of these efforts didn’t work. But there is good reason to think Trump would be more effective in a second term. While Trump’s early power grabs were often haphazard, he now has detailed plans on hand for effectuating them.

Advisers at pro-Trump think tanks have already furnished Trump with extensive roadmaps to impose presidential control over every traditionally independent or quasi-independent piece of the executive branch, as the New York Times detailed last month.

These plans, collectively titled “Project 2025,” include using the long-outlawed tactic of “impoundment” to increase his power over the federal budget, assuming fuller control of federal agencies to which Congress granted independence, and stripping employment protections from career civil servants so that Trump can replace them with loyalists.

“What we’re trying to do is identify the pockets of independence and seize them,” Russell Vought, who ran the Office of Management and Budget under Trump and now heads the Trump-affiliated Center for Renewing America, told the Times.

The Justice Department is top priority for seizure. A May 2023 report from Center for Renewing America, titled “The U.S. Justice Department is not independent,” outlines a plan to end DOJ’s tradition of independence from presidential whim. The document’s author is Jeffrey Clark, a former mid-level DOJ official known for his efforts to try to help Trump use the DOJ to subvert the 2020 election.

Clark, though he is not named, is identifiable as one of six co-conspirators that the latest indictment says Trump enlisted to “assist him in his criminal efforts to overturn the legitimate results of the 2020 presidential election and retain power.” Clark, ahead of January 6, pushed to send letters to legislators in states Trump narrowly lost that claimed, falsely, that the Justice Department had found “evidence of significant irregularities that may have impacted the outcome of the election in multiple States.” The draft letters urged state lawmakers to select new slates of  electors. Clark also worked with far-right House Republicans after the election in a bid to win appointment as acting attorney general. A threat by top DOJ officials to resign en masse blocked Clark’s gambit.

This week’s indictment also revealed an exchange in which a White House lawyer told Clark that Trump refusing to leave office would prompt riots throughout the country. “That’s why there’s an Insurrection Act,” Clark allegedly responded. In other words, he was suggesting that Trump would use troops to put down resistance to his seizure of power.

Clark reportedly is a candidate for a top DOJ job, possibly even attorney general, if Trump wins election in 2024. Clark’s potential disbarment could complicate his candidacy, but his status as Trump’s alleged co-conspirator seems unlikely to harm his standing with Trump.

In summary, Trump and his supporters say the solution to supposedly partisan prosecutions is to gain power themselves and carry out their own partisan prosecutions.

The stakes of 2024 election, thus, are pretty high. Trump is being prosecuted for actions he took as part of an attempted coup. In a second term, he could finish the job.