Less than a year into his second term, President Donald Trump and his appointees in the Department of Justice have already filed charges or launched investigations against a dozen of his political opponents, including New Jersey Gov. Phil Murphy (D), Senate Minority Leader Chuck Schumer (D-N.Y.), and former President Barack Obama (D).
While this politicization of federal prosecutors is unprecedented, Trump’s desire to use the power of government against his enemies is anything but. During his first term, Trump repeatedly asked top government officials to launch investigations into rivals or end those into his allies. For the most part, those officials either refused — sometimes at the cost of their positions — or handed off the request to special counsel or inspectors general to consider.
The few investigations the Department of Justice (DOJ) did pursue at Trump’s behest were rousing political successes, capturing the attention of political reporters and planting the seeds for coverage that continues to this day. But by the normal metric for prosecutorial success — convictions — they fell far short, leading to just one: An unheard-of FBI lawyer was sentenced to probation for filing false statements.
That track record suggests the current administration’s launch of less-substantiated politically-motivated probes will similarly result in few, if any, prosecutions of marque-name politicians or even faceless bureaucrats. As applications of criminal justice, they will likely be failures. But they may very well again succeed as exercises of populist demagoguery, dragging the targets’ names through the mud and providing considerable grist for the online conspiracy theory mills.
The institutional guardrails that checked Trump’s prosecutorial impulses in his first term are gone, replaced by a cadre of loyalists embracing his total war approach to governance that obliterates the line between law and politics. That has led to a dozen and counting probes into Trump’s political opponents so far this year.
Pam Bondi is the first Attorney General in over 40 years to not issue a memo limiting contact between the DOJ and the White House — a norm established in the wake of the Watergate scandal to ensure DOJ investigations were, and were publicly viewed as, free of political influence. In its stead, Bondi released a memo requiring “zealous advocacy” from prosecutors.
“When Department of Justice attorneys, for example, refuse to advance good-faith arguments by declining to appear in court or sign briefs, it undermines the constitutional order and deprives the President of the benefit of his lawyers,” Bondi wrote, recasting the DOJ from its longheld ideal as dispassionate guardians of the rule of law into Trump’s private prosecutorial hit squad.
Trump I Investigations: ‘a tale told by an idiot, full of sound and fury, signifying nothing’
During Trump’s first administration, the DOJ appointed two special counsels to investigate allegations Trump made about Hillary Clinton and the FBI’s probe into Russian attempts to interfere with the 2016 presidential election. The Department also referred Trump’s inquiry demands to its inspector general in 2018, and assigned a U.S. Attorney in 2020 to vet material (some of which was provided by Trump’s personal attorney, Rudy Giuliani) for a potential grand jury investigation into improper ties between then-Vice President Joe Biden and Ukraine.
That first special counsel, John Huber, was appointed in 2017 to look into claims made by Trump and congressional Republicans, that the FBI improperly surveilled Trump campaign aide Carter Page and Clinton’s alleged role in the sale of uranium rights to a Russian-controlled company. Two years later, Huber quietly closed the investigation, leading Trump to call him a “garbage disposal unit.”
The second, John Durham, was handpicked by Attorney General William Barr in early 2019 to scrutinize the FBI’s handling of the Trump-Russia investigation. That was the same focus of Inspector General Michael Horowitz’s own ongoing review, which concluded that December with a report finding the FBI was justified in examining Trump’s ties with Russia, although that investigation was marred by errors.
Durham’s own work would eventually wrap up after nearly four years without finding any evidence of a deep state plot against Trump. In the end, Durham only made three indictments, one of which, against Perkins Coie lawyer Michael Sussman*, was made over the objection of a prosecutor on his team who quit in protest. Juries quickly acquitted Sussman and another man charged with lying to the FBI, while the third, FBI attorney Kevin Clinesmith, pleaded guilty and received twelve months probation.
Even though Durham’s report only repeated previously revealed procedural flaws in the FBI’s investigation, Republicans responded to its release in May 2023, by saying it confirmed all their suspicions into the “Russia hoax” against Trump.
In 2020, Barr would assign Scott Brady, the U.S. Attorney for the western district of Pennsylvania, to review information gathered by Giuliani related to claims that Joe Biden unduly used his influence to help his son do business in Ukraine. While that ultimately produced no evidence that Biden did anything improper, it helped form the basis for later investigations led by congressional Republicans.
The Proof is in the Politics: The Republican Investigation Strategy
To paraphrase Clausewitz, Trump and his allies in Congress view the law as little more than the continuation of politics by other means. The goal of these investigations isn’t to expose wrongdoing, charge the perpetrators and ultimately secure their convictions; it’s to create a spectacle for media — particularly right-wing outlets — to fixate on that imparts the fetid whiff of scandal on their targets.
This strategy of rubbing two sticks together to convince voters there’s a fire underneath all that smoke is nothing new. Six House committees investigated the 2012 attacks on the U.S. Special Mission in Benghazi, Libya, including a select committee led by Rep. Trey Gowdy (R-S.C.), which castigated then-Sec. of State Hillary Clinton ahead of her widely anticipated run for the White House in 2016. After two years, the final report highlighted intelligence and security failures but offered no evidence of wrongdoing by Clinton. But the inquiry did reveal Clinton’s improper use of a private email server, leading to an FBI investigation that was publicly reopened just days before the presidential election, which some pollsters blamed for her campaign’s defeat.
In 2023, House Oversight Chairman James Comer (R-Ky.) launched an investigation into the financial dealings of Biden’s family shortly after Republicans regained control of the House. Over the next two years, that inquiry generated a steady diet of allegations, hearings, and reports that fed the GOP’s messaging machine.
DCInbox, a data tool created by Stevens Institute of Technology political scientist Lindsey Cormack, showed a huge spike in Republicans mentioning “corruption” and “Hunter Biden” in their newsletters to constituents during the investigation. Comer became a regular on Fox News, where he insinuated repeatedly that Biden was enriching himself through shady payments from “the Chinese Communist Party.”
Ultimately, House Republicans uncovered no evidence to pin on Biden. The case did draw more attention to his son, Hunter, who was already under investigation for tax evasion, leading to the appointment of the special counsel that then indicted the younger Biden on multiple charges. (His father later issued a pardon).
But Hunter, a recovering drug addict with no political aspirations of his own, wasn’t the real target; his father, then still running for reelection, was. “This is an investigation into Joe Biden,” Comer said during one Fox appearance.
Comer wasn’t the first or only Republican hunting for a scandal. Oversight joined the House Judiciary and Ways and Means committees to launch a formal impeachment inquiry that ultimately hit a dead end. Similarly, after stoking conservative outrage for two years, House Judiciary’s select subcommittee on the Weaponization of the Federal Government ended on a ponderously long note, producing a 17,000 page report on alleged abuses of power but zero criminal referrals. In 2020, the Senate Homeland Security and Senate Finance Committees tried to keep Biden from winning the White House with their own joint investigation, which found nothing.
Along the way, some of the witnesses congressional Republicans used to cast aspersions on Biden were themselves charged with fabricating evidence or the very same crimes they implied Biden broke.
Trump II Investigations: Too Fast, Too Furious, Too Frivolous
Since his return to office, Trump and his allies have continued to mine the “Trump-Russia collusion hoax” for attention-grabbing headlines from its depleted veins.
As Stacey Young, executive director and founder of Justice Connection, told Democracy Docket, the schtick of trotting out hackneyed accusations has grown stale.
“These allegations have been investigated so many times — by a Special Counsel, an inspector general, multiple congressional committees — and none has supported the claims being made now,” Young said. “The only thing that’s changed is the willingness of DOJ leadership to pursue spurious cases and dismiss strong cases to please the president. The law and the evidence no longer dictate charging decisions.”
Earlier this summer, National Intelligence Director Tulsi Gabbard accused Obama of “treasonous conspiracy,” alleging he ordered the creation of false intelligence assessments showing Russia tried to help Trump win in 2016. Pressed repeatedly for evidence, Gabbard has pointed to unremarkable declassified documents from the Obama administration while making sweeping claims about their probity on X. Those claims are then amplified on social media by the likes of Sen. Tom Cotton (D-Ark.), Fox News reporters, and Trump himself.
Gabbard referred her findings to the DOJ, leading Bondi to direct prosecutors in South Florida to look into presenting evidence to a grand jury there because, according to the New York Times, she believes jurors in Washington D.C. would be unwilling to consider the allegations.
Even if, despite all evidence to the contrary, Obama did direct his intelligence officials to fabricate a report, the Supreme Court’s decision in Trump v. USA means he would be insulated from prosecution related to official acts of his presidency. Therefore, bringing prosecution would seem to run counter to the DOJ’s Justice Manual, which directs line prosecutors to bring charges only when they believe “that the person will more likely than not be found guilty beyond a reasonable doubt by an unbiased trier of fact and that the conviction will be upheld on appeal.”
But the DOJ under Bondi appears to be taking a different approach, as the head of the DOJ’s new “weaponization” group reviewing past investigations into Trump and his allies, Ed Martin, told reporters in May. “There are some really bad actors, some people that did some really bad things to the American people. And if they can be charged, we’ll charge them. But if they can’t be charged, we will name them,” Martin said. “And we will name them, and in a culture that respects shame, they should be people that are ashamed…. that’s how I believe the job operates.”
That name-and-shame approach was on display when Alina Habba, the former personal attorney of Trump’s that he picked as acting U.S. Attorney of New Jersey, trumpeted charges against Newark Mayor Ras Baraka, only to then drop them quietly just a few weeks later.
Among those Trump has targeted are some of his former aides and appointees.
So far, most of Trump’s targets are fighting back. Obama, through a spokesman, called the allegations, “ridiculous and a weak attempt at distraction.” Baraka is suing Habba for malicious prosecution. But Corey Brettschneider, a political scientist at Brown University and author of a “The Presidents and the People: Five Leaders Who Threatened Democracy and the Citizens Who Fought to Defend It,” said future targets may not be so bold and instead seek plea bargains to avoid the risk, however distant, of lengthy prison sentences.
“That power to hold over the threat in order to make a deal is deeply concerning and real,” he told Democracy Docket.
Given enough time and resources, investigations can reveal wrongdoings far removed from the allegations that launched them. Independent counsel Ken Starr was appointed to look into Bill Clinton’s actions around a real estate deal that went sour; the Whitewater investigation eventually uncovered his affair with Monica Lewinsky, and Clinton’s lies under oath about it were the basis for his impeachment. “There are a lot of laws on the books, and if you’re really looking motivated to simply find a case against somebody, sometimes you can do it,” Brettscheider said. “That’s certainly not justice being served.”
Worse, Brettscheider said, is the chilling effect these prosecutions may have— that other officials may not speak out against Trump out of fear of investigators soon after knocking on their door.
“A dictatorship functions not necessarily with actual attacks or prosecutions or imprisonment, but the threat of imprisonment,” he said. “It’s very, very dangerous. There is no real check on the president.”
*Sussman worked at Perkins Coie alongside Democracy Docket Founder Marc Elias.