Trump Is Having Trouble Prosecuting His Enemies

The Atlantic

2 days ago

In November 2017, less than a year into his first term as president, Donald Trump publicly confronted a depressing reality. The traditions of Justice Department independence, he lamented in a radio interview, limited his ability to order an investigation of Hillary Clinton. It was 'the saddest thing,' he said. 'I'm not supposed to be doing the kind of things I would love to be doing, and I am very frustrated by it.'
This time around, Trump is not similarly encumbered. During the interregnum between his terms, MAGA's would-be philosophers built out the intellectual architecture for a presidential takeover of the Justice Department. Once Trump was back in office, the new administration set about filling DOJ leadership with loyalists and firing anyone who might object to abuses of power. The president, insistent that he was the victim of persecution by federal law enforcement, now seeks to turn the same apparatus against his enemies. In a representative Truth Social post last month, he shared an AI-generated video of Barack Obama being handcuffed by FBI agents and dragged out of the Oval Office.
But Trump's plan to leverage the DOJ for his campaign of revenge is not generating the results he might have hoped for, and not just because Obama remains a free man. The Justice Department has been slow to move forward with the investigations Trump demanded, hemmed in by the constraints of the legal system. Federal prosecutors targeting protesters and Democratic politicians have been dealt embarrassing defeats. American criminal law appears to be a less flexible tool in the hands of an authoritarian than Trump hoped—at least for now.
Attorney General Pam Bondi identified herself right away as an enthusiastic participant in the president's personal-retribution project, launching a 'Weaponization Working Group' in February that would examine past investigations of Trump. In recent weeks, the department appears to have moved toward a potential criminal investigation of officials involved in the 2016 probe of Russian election interference. Outside the Justice Department, the Office of Special Counsel has opened an investigation into Jack Smith, the former special counsel who, from 2022 to 2024, oversaw the two federal criminal prosecutions of Trump for potential violations of the Hatch Act, which restricts political activities by government employees. (Despite its name, the Office of Special Counsel is an independent agency with no relationship to Smith's old shop.)
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This is one model of law enforcement as a weapon: specific targeting of preexisting villains. Around the country, meanwhile, federal prosecutors handpicked by Trump are experimenting with another: cracking down on dissent. Anti-ICE protesters, and even Democratic elected officials pushing for oversight of immigration enforcement, have faced criminal charges.
Attorney General Robert Jackson famously warned in 1940 that the federal prosecutor 'has more control over life, liberty, and reputation than any other person in America.' Still, prosecutorial authority has limits. A prosecutor has to find a crime to charge in the first place. If the offense is serious enough, the prosecutor must also be able to persuade a grand jury to issue an indictment. And if the defendant refuses to plead guilty, the prosecutor must persuade a petit jury to convict. These are far from insurmountable barriers; on the contrary, as criminal-justice reformers have long argued, the deck is stacked in favor of the prosecution. But the Trump administration keeps tripping up on them anyway.
After June protests against ICE raids in Los Angeles, the office of Acting U.S. Attorney Bill Essayli filed more than 35 felony prosecutions, mostly for alleged assault of federal officers. But the Los Angeles Times and Bloomberg report that prosecutors were unable to persuade a grand jury to indict in several cases, as is required for felony charges. Court records show that in the weeks following the protests, the office moved to dismiss at least eight cases and downgraded another five to misdemeanors. (In one instance, the office charged a case as a felony, dropped it to a misdemeanor, and then recharged it as a felony a month and a half later, this time with an indictment in hand. Prosecutors have secured indictments in at least 12 cases, though two of those were later dismissed and a third indictment originally identified the defendant by the wrong name.) For context, in 2016, the last year for which data are available, the Bureau of Justice Statistics recorded only six refusals by grand juries out of roughly 180,000 cases pursued by federal prosecutors around the country. In more ordinary times, the old saying that a grand jury would indict a ham sandwich is not far off.
On the opposite coast, the U.S. Attorney's Office for the District of New Jersey has dealt with an embarrassment of its own. The office's interim leader, Alina Habba (until recently one of Trump's personal lawyers), filed trespassing charges against Newark Mayor Ras Baraka after he attempted to visit an ICE detention facility in his city. 'NO ONE IS ABOVE THE LAW,' Habba trumpeted on X. Two weeks later, however, prosecutors moved to dismiss the charges. The magistrate judge handling the case chastened the office over its failure to 'thoughtfully consider the implications of your actions before wielding your immense power.' (Baraka, sitting in the courtroom during the hearing, was overheard commenting afterward, 'Jesus, he tore these people a new asshole.')
Bondi, meanwhile, is struggling to respond to the president's demands to prosecute people involved in perpetrating what Trump calls the 'Russia hoax.' The biggest challenge there is that there was no hoax; as both Special Counsel Robert Mueller and a bipartisan Senate intelligence report concluded, Russia really did try to help Trump win the 2016 election. For that matter, even if the Justice Department could somehow identify a crime, any number of legal issues could trip up a prosecution—including the fact that the conduct in question took place almost 10 years ago, well past the typical five-year window for charging an offense. According to The New York Times, the attorney general was caught unawares by Director of National Intelligence Tulsi Gabbard's release of documents from 2016, and displeased about the political pressure from the right to launch an investigation in response. Despite an exciting headline from Fox News—'DOJ Launching Grand Jury Investigation Into Russiagate Conspiracy Allegations'—all Bondi appears to have done is ask prosecutors to possibly present grand jurors with evidence. When a grand jury will actually convene, and indeed whether it ever will, is not clear.
Bondi's hedging on Russia hints at a broader awareness within the Justice Department that securing indictments, much less guilty verdicts, may be a problem. In May, Ed Martin, the crusading Trump supporter who is now leading the Justice Department's Weaponization Working Group, suggested that if the department were unable to charge 'bad actors' with crimes, it would settle for naming and shaming them publicly. (This would be a departure from long-running department policy, which holds that 'no legitimate governmental interest' is served by publicly voicing allegations against individuals without an accompanying criminal case.) Similarly, the investigation of Jack Smith might be a tacit admission of how little the administration has to go on here: The harshest penalty that the Office of Special Counsel could demand would be Smith's dismissal from government service, but he has already resigned.
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These challenges are similar to ones that Trump ran into during his first term. In fact, the FBI's 2016 election-interference investigation was already the subject of an investigation by Special Counsel John Durham, which began in 2019. Despite MAGA hype, Durham's probe was a flop: He brought three criminal cases concerning alleged wrongdoing around the Russia investigation, two of which ended in acquittals by juries. (A third led to a former FBI lawyer being sentenced to probation after pleading guilty to having altered an email.) And a shaky criminal probe into former Deputy FBI Director Andrew McCabe, whom Trump had seized on as a symbol of the nefarious 'deep state,' quietly ground to a halt without charges being filed. It's difficult to say exactly what happened in the McCabe case because of strict rules around grand-jury secrecy, but one possibility is that jurors declined to issue an indictment.
Still, the jury system will not always act as a defense against abuses. The same day that Baraka's case was dismissed, Habba announced her intent to indict Democratic Representative LaMonica McIver for 'forcibly impeding and interfering with federal officers' when attempting to shield Baraka from arrest. A grand jury returned the indictment. McIver has pleaded not guilty, but others might make different calculations: The overwhelming majority of criminal cases end with plea deals, because defendants decide against taking their chances in court. Meanwhile, the Justice Department recently sent out grand-jury subpoenas targeting New York Attorney General Letitia James over investigations by her office into Trump and the National Rifle Association. Fox News reports that another investigation may be under way into Trump's claims of supposed mortgage fraud by James and Democratic Senator Adam Schiff. Even if the harassment of James and Schiff goes nowhere, criminal investigations like these can be a grueling experience for the defendant, especially given the enormous cost of paying for a defense lawyer.
A jury is in essence a democratic institution, requiring citizens to exercise their judgment in a model of shared deliberation that is at odds with Trump's autocratic tendencies. In the colonial era, grand juries sometimes refused to indict protesters against the Crown; in the decades before the Civil War, both grand and petit juries nullified prosecutions under the Fugitive Slave Act. Yet although the American jury system can be a powerful tool in the fight for self-government, it has not always been a reliable one. Juries also helped build the foundations of the Jim Crow South by shielding white Southerners from legal accountability for racial terror. So far, the system has held up against Trump's encroachment. But the rapid erosion of democratic life in the United States over the past six months is a reminder of how quickly things can change.