Since Watergate, Americans have expected presidents to steer clear of criminal prosecutions. But under Donald Trump, presidential interference is happening in broad daylight — enabled by his replacement of seasoned, Senate-confirmed prosecutors with political loyalists devoted to him, not the law.
Trump has only 18 of 93 Senate-confirmed U.S. attorneys in place. (He had 46 confirmed during the first year of his first term). But a lack of Senate-confirmed prosecutors hasn’t stopped Trump. To the contrary, he has a network of acting prosecutors who do what Trump wants — particularly prosecuting his critics — as quickly as he wants them, whether or not the law supports it.
Halligan’s decision to present those cases appears to violate Justice Department norms.
Lindsey Halligan, Trump’s hand-picked interim U.S. attorney for the Eastern District of Virginia, has no prosecutorial experience, and she did what her predecessor and the nonpartisan line prosecutors in her office refused to do: She presented felony charges to a grand jury against two of Trump’s critics, former FBI Director James Comey and New York Attorney General Letitia James. Because prosecutors aren’t supposed to bring charges unless the evidence is sufficient to obtain and sustain a conviction, Halligan’s decision to present those cases appears to violate Justice Department norms.
The New York Times reported in August that in the Northern District of New York, John Sarcone III, another Trump pick with no prosecutorial experience, issued subpoenas to James’ office probing whether James (whose office won the civil fraud case against the Trump Organization and a high-profile corruption case against the National Rifle Association ) violated Trump’s rights or those of his businesses or the NRA. Sarcone hasn’t been confirmed by the U.S. Senate. Attorney General Pam Bondi installed him “indefinitely” through an unusual maneuver after local federal judges declined to appoint him.
In New Jersey, Alina Habba, a former personal attorney of Trump’s who had no experience as a prosecutor, charged Newark’s Democratic Mayor Ras Baraka and Rep. LaMonica McIver, D-N.J., with crimes some time after she spoke to a right-wing podcaster about turning “New Jersey red.” Baraka was charged with misdemeanor trespassing outside an ICE detention facility in Newark and McIver with assaulting two law enforcement officers there.
Habba dropped the charge against Baraka, who now suing Habba, claiming malicious prosecution. At the court hearing where a federal judge approved the government’s request to drop the charge against Baraka, the judge had a scathing rebuke for Habba: “The apparent rush in this case, culminating today in the embarrassing retraction of charges, suggests a failure to adequately investigate.” The judge continued: “Your office must operate with a higher standard. … Your role is not to secure convictions at all costs, nor to satisfy public clamor, nor to advance political agendas.”
Though the case against McIver continues, so do questions about the legitimacy of Habba’s appointment. A bipartisan group of 10 former U.S. attorneys from the Reagan era to the Biden administration filed an amicus brief with the 3rd Circuit U.S. Court of Appeals in which they agree with a federal court ruling that found that Habba was appointed improperly. The appellate court is scheduled to hear oral arguments in that case Monday.
A federal judge in Nevada recently ruled last month that the appointment of acting U.S. Attorney Sigal Chattah was invalid. This week in Los Angeles, another judge weighed whether the Central District of California’s top prosecutor ought to be in the position.
None of this is normal. The Senate is supposed to confirm U.S. attorneys — the nation’s top federal prosecutors — to help ensure independence and accountability. While presidents can make short-term appointments, those typically expire after 120 days. At that point, federal judges may appoint temporary replacements. Trump has upended that system, using extraordinary and untested legal maneuvers, such as naming Sarcone “special attorney to the attorney general,” to bypass Senate confirmation and keep loyalists in place.
Ed Martin, Trump’s nominee for U.S. attorney in Washington, D.C., who failed to win confirmation even in a Republican-controlled Senate, told reporters earlier this year, “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.”
None of this is normal. The Senate is supposed to confirm the nation’s top federal prosecutors to help ensure independence and accountability.
“In a culture that respects shame,” he added, “they should be people that are ashamed.”
Martin now leads the DOJ’s so-called “weaponization” working group, but in any previous, post-Watergate administration, his statement would have cost him his job. Federal prosecutors have been taught to bring cases only when there’s enough evidence to obtain and sustain a conviction in court; not to shame people in the court of public opinion.
Trump’s second term has laid bare his determination to replace independent thinkers and prosecutors with political enforcers. The Justice Department’s Public Integrity Section — once the moral center on matters of corruption — has been hollowed out. Most of its veteran lawyers have been fired or reassigned, and The Washington Post reported in May that Bondi was reportedly weighing a plan that would allow federal prosecutors to seek indictments of members of Congress without the customary review of the career prosecutors who remain in the section.
“The reason you have the section is exactly what this administration says they want, which is [to] stop politicization,” former public integrity attorney Dan Schwager, told The Washington Post in that May report. “That requires a respect and ability to understand how the laws have been applied in similar situations in the past. The only way to ensure that public officials on both sides of the aisle are treated similarly is to have as much institutional knowledge and experience as possible.”
And MSNBC reported Thursday that “Career federal prosecutors are navigating what colleagues describe as an intense White House pressure campaign to execute Donald Trump’s vows of vengeance against his political foes and critics.”
During Trump’s first term, Attorney General Jeff Sessions refused to shut down the FBI’s investigation of Russian interference in the 2016 election and eventually recused himself from it altogether. His successor, Bill Barr, rejected Trump’s lies about the 2020 election. In the Southern District of New York, U.S. Attorney Geoffrey Berman refused to bring baseless charges against former Secretary of State John Kerry. Even special counsel John Durham, who spent four years and $8 million investigating what Trump termed the “Russia hoax,” found no evidence of politically motivated misconduct on behalf of the FBI.
This is not merely a bureaucratic reshuffle.
In Trump 2.0, those kinds of officials are gone. In their place are people like Bondi, who peddled false claims of voter fraud in 2020, and who said nothing critical after a social media post in which Trump openly pushed for her to prosecute his perceived enemies.
This is not merely a bureaucratic reshuffle. It is a fundamental assault on the post-Watergate norms that have defined the Justice Department for half a century. And Trump’s sidestepping of the Senate and putting in power people whose chief qualifications appear to be a willingness to do what he says threatens not only defendants but public faith in the impartial administration of justice.
There are two kinds of federal prosecutors: those who follow the facts and the law and those who bend to political pressure. It’s clear which kind Trump prefers.