Why Legal Experts Are Worried About a Second Trump Presidency
In a survey of 50 members of the D.C. legal establishment, many warn that Trump could follow through on his threats to prosecute his political adversaries.By Emily Bazelon and Mattathias Schwartz
Emily Bazelon and Mattathias Schwartz surveyed and interviewed more than 50 legal experts for this article. Bazelon, a staff writer for the magazine, has reported extensively on the justice system. Schwartz, a legal-affairs correspondent, covers the federal judiciary.
- Oct. 3, 2024
Trump, of course, also says that he’s currently the victim of political prosecution by the Biden administration. Jack Smith, the special counsel appointed by Attorney General Merrick Garland, charged Trump in Florida for refusing to return classified documents and in Washington for trying to overturn the 2020 election. State prosecutors, both Democrats, brought election-related charges in Georgia and convicted Trump in New York of a hush-money scheme to influence the 2016 election. In his telling, all the cases are witch hunts by “Politicized ‘Persecutors.’” Retorting to Harris at their debate in September, Trump said: “They talk about democracy: I’m a threat to democracy. They’re the threat to democracy — with the fake Russia Russia Russia investigation that went nowhere.”
But there is a fundamental difference between the investigations Trump threatens and the ones he’s now subject to. There is no known evidence that Biden instigated these investigations or has tried to influence their outcome. Garland has given Smith authority over how to proceed in the investigations of Trump — and also appointed different special counsels to investigate Hunter Biden and President Biden’s own mishandling of classified documents.
Still, there’s a tension in our system, which Trump is forcing the country to confront. The Justice Department sits inside the executive branch. The attorney general, the director of the F.B.I. and other political appointees at the department all report up to, and can be fired by, the president. The only way to wall off presidents from interfering with criminal investigations is for them to impose such a limit on themselves.
For the last half century, presidents saw a clear political benefit in restraint. No one wanted to be the next Richard Nixon. He became the only president ever forced to resign after he was caught interfering in the F.B.I.’s investigation of the 1972 burglary of the Democratic National Committee’s headquarters — which his own former attorney general helped plan and then cover up. In the aftermath of the Watergate scandal, the Justice Department imposed new rules to prevent “pressure from any source that is intended to influence our legal judgment,” Attorney General Griffin Bell said in 1978. Crucially, this included partisan directives from the White House. In the presidential administrations that followed, this rule was reaffirmed and largely followed, the evidence suggests.
But these safeguards are all dependent on voluntary compliance. And so, despite the precautions Biden and Garland have taken, the charges filed by Smith establish an uncomfortable precedent. Maybe the most harmful thing the former president has done to the rule of law is to engage in behavior so reckless that he effectively dared his successor’s Justice Department to investigate him.
It’s easy to see what the peril of not investigating Trump’s most law-defying conduct might have been: For laws to have credibility, they must be applied to everyone. Once those investigations led to indictments, however, different perils emerged, which Trump has been quick to exploit. Trump urges his supporters to trade faith in the American system for faith in him. His claims that the cases against him are corrupt have undermined his supporters’ confidence in the justice system itself.
Still, for all the strain that Trump has placed on the system, both during and after his term in office, it has for the most part held. The big question for American law — and democracy — is whether it would continue to do so in a possible second Trump term.
No one is in a better position to answer that question than officials who have worked in the Justice Department, the judiciary or the White House Counsel’s Office. We contacted about 160 of these insiders, including every living U.S. attorney general and many of their top deputies, dozens of former U.S. attorneys (including most of those Trump appointed), every White House counsel and a few retired judges and career prosecutors who worked for multiple administrations. Of those, a group of 50, evenly split between Democratic and Republican appointees, took a survey we designed. Together they have served every president since Ronald Reagan. Some of them spent their careers in public service. Others moved in and out of the private sector. We spoke to many of them for follow-up interviews.
On one side of the debate, a handful of former Justice Department officials who took the survey, and others who refused, rejected its premise, saying we unfairly or unnecessarily focused on Trump. Our survey was an example of “mainstream media bias,” one Reagan-appointed official said, “that permits liberal prosecutors to violate norms for the rule of law with limited oversight in the court of public opinion.” In other words, the press doesn’t apply enough scrutiny to prosecutors who target Trump and his associates. (Like the other respondent we quote anonymously, he didn’t want to speak on the record because of his current legal practice.)
A Trump spokesman, Steven Cheung, did not give a direct answer to our question about whether Trump would follow through on his repeated promises to prosecute his political adversaries. “President Trump is dominating this election,” he said, “hence the need for pathetic excuses for journalists to write propaganda falsely accusing President Trump of doing what the Democrats are doing to him — carrying out illegal weaponized lawfare.”
But an overwhelming majority of our respondents told us that they are alarmed about Trump’s potential impact on the Justice Department, many to a degree that they don’t think the public conversation reflects. Forty-two of the 50 former officials said it was very likely or likely that a second Trump term would pose a significant threat to the norm of keeping criminal enforcement free of White House influence. Thirty-nine of the respondents (all but one of the Democratic appointees and most of the Republican ones) said it was likely or very likely that if re-elected, Trump would follow through on ordering the Justice Department to conduct a specific investigation. (Six more said it was possible.)
If Trump Wins, Could He Really Use the Justice Department to Jail His Rivals?
How might a politically motivated prosecution actually unfold? These steps show exactly how Trump could make his threats real — all while staying within the constitutional limits on presidential power.
Some conservatives as well as liberals said that an extremist president in general, and Trump in particular, was the biggest threat they saw to the rule of law. Peter Keisler, a founder of the conservative Federalist Society and an assistant attorney general as well as acting attorney general for President George W. Bush, captured how many of our respondents felt. “There is every reason to believe that Donald Trump would seek to use criminal enforcement and the F.B.I. as leverage for his personal and political ends in a second term,” he said. “We don’t know what will happen, but the risk is more concrete, with a higher probability, than in any election in my lifetime.”
Lessons From Trump’s First Term
During his presidency, Trump scrambled the post-Watergate picture, in which the White House took pains to distance itself from the Justice Department’s decisions about whom to investigate and prosecute. He tried to interfere directly, starting with the special counsel Robert S. Mueller III’s probe into ties between his 2016 campaign and Russian operatives. Our colleague Michael S. Schmidt, an investigative reporter covering Washington, found that in 10 cases, the Justice Department cooperated with Trump’s demands to investigate his perceived enemies. Many of our survey respondents pointed to Trump’s pattern of interference as behavior that was entirely out of bounds. “He has normalized into American political culture everything that he has done and said for the past eight years,” said Michael Luttig, a former assistant attorney general and federal judge who was appointed to both positions by President George H.W. Bush. “It’s one way he has corrupted our democracy and rule of law.”Luttig has long been a close friend of William P. Barr, Trump’s second attorney general, and was consulted by Vice President Mike Pence’s staff for constitutional guidance when Trump pressured Pence not to certify the 2020 election. Luttig has also been one of the most outspoken critics of Trump in a cadre of like-minded prominent Republicans. “We’re the conservative orthodoxy,” said Stuart Gerson, who was an assistant attorney general for President George H.W. Bush and acting attorney general for President Bill Clinton. “The MAGAs are the opposite. They’re not conserving anything.”
Luttig and Gerson helped start the Society for the Rule of Law, a group of conservative and libertarian lawyers and judges founded in 2023 to protect the Constitution from “illiberal forces.” Some members of the society helped prepare a Sept. 18 letter, signed by more than 100 former national-security officials from Republican administrations and former Republican members of Congress, that endorses Harris for president, saying Trump disregards the country’s principles of governance.
The problems with Trump’s first term, for survey respondents like Luttig and Gerson, came to a head in May 2017, when Trump fired the F.B.I. director, James B. Comey, for refusing to pledge loyalty to him and for not giving public assurances about the Mueller investigation’s scope. Then Trump ordered his White House counsel, Donald F. McGahn II, to fire Mueller, according to multiple sources. “He’s the kind of guy who is always testing limits,” Rod Rosenstein, a Trump deputy attorney general, told the journalist David Rohde in his new book, “Where Tyranny Begins.” Rosenstein was referring to pressure he received from Trump, on late-night phone calls, to prosecute adversaries. Rather than fire Mueller, McGahn threatened to resign; Rosenstein held the line, and Trump backed down.
Some respondents noted that the attorney general, whom the president appoints, can handpick teams to carry out sensitive investigations. Barr selected a second special prosecutor, John Durham, to investigate the origins of Mueller’s investigation, testing the premise that it was illegitimate, as Trump believed. “Barr wasn’t a Trump acolyte,” Gerson said. “But their agendas coincided, and each empowered the other.”
In the summer of 2020, a prosecutor on Durham’s team resigned because she thought the investigation was politically tainted, she later explained. Another prosecutor quit over Durham’s decision to charge a lawyer who represented Democrats with lying to the F.B.I., according to a 2023 New York Times investigation. The lawyer was acquitted, along with a second defendant Durham charged. In the end, after spending four years and more than $6.5 million on an inquiry that was supposed to rewrite the story of the Trump-Russia investigation, Durham produced one guilty plea, with a sentence of probation, and a final report that contained little new evidence.
Prosecutors and F.B.I. agents often say their work begins with looking into a crime, not a person. “But if you really want to start with a person, it can be done,” William Yeomans, a career lawyer in the Justice Department for 26 years, told us. “The political people can ask the F.B.I. to investigate, and the F.B.I. is going to do it, at least by taking a preliminary look. And frequently you can find something, some hook to justify an investigation. And once it starts, who knows what’s going to happen.”
Yeomans discussed the case of Andrew McCabe, the former deputy director of the F.B.I., as an example of a prosecution that appeared politically motivated. When Trump fired Comey in 2017, it was McCabe who opened an inquiry into whether the president had obstructed justice. Trump repeatedly attacked him on Twitter, criticizing the political fund-raising of his wife, who ran for office as a Democrat. When McCabe was fired from the F.B.I. the day before he was eligible to collect his full pension, Trump called it “a great day for democracy.” (McCabe sued, and his pension was restored.)
A team of federal prosecutors looked into charging McCabe for disclosing information to the press in 2016 about an investigation of the Clinton Foundation and allegedly misleading investigators about having done so. But the prosecutors decided they didn’t have a case. Jessie Liu, the Trump-appointed U.S. attorney in Washington, then reportedly pushed the case forward by assigning it to a second team. In 2019, those prosecutors failed to persuade a grand jury that there was enough evidence to indict. One former official told us that some of the prosecutors, as well as the grand jurors, were uncomfortable with the case because it was weak. (Liu declined to comment.)
The case, nonetheless, caused great harm to McCabe’s reputation. “An investigation like that can bankrupt you,” he told us. “It can cost you your social relationships and career opportunities. Most people draw the conclusion from the beginning: ‘He must have done something wrong.’ It follows me to this day.”
And that’s often the point. Investigations and indictments can make an example of a few to instill fear in many others. “It’s the rules of organized crime,” McCabe told us. “You beat one person, and everyone else knows they could also pay. People in the Justice Department change the decisions they make because they’re afraid of inviting these consequences into their lives.”
In the eyes of many of our survey respondents, Trump’s most flagrant misuse of power came after the 2020 election, when he asked the Justice Department to investigate “sweeping, fact-free claims of fraud,” according to Barr’s 2022 memoir, in hopes of overturning the results in Georgia and elsewhere. Trump had gone too far, in Barr’s view; Barr resigned in December 2020. “Trump had taken a dangerous turn since the election,” Barr wrote. “He was beyond restraint.”
Did the country teeter on the brink of a legal coup in the wake of the election? A couple of former Trump officials told us no. For weeks, Trump considered installing as attorney general Jeffrey Clark, a lower-level Justice Department official who circulated a draft letter among his superiors, addressed to Georgia officials, that falsely claimed that the department had concerns about the election. Several top department officials threatened to resign if Trump followed through, but in the end he did not. “Trump considered a lot of bad ideas,” one former department official said. “But generally, the president made the right decisions.” He expects a similar pattern of behavior if Trump is re-elected. Trump might bluster, another Trump official said, but he would be surrounded by appointees who would talk him down.
Many respondents disagreed. They said that Trump, who has taken to calling appointees like Barr “snakes” and “traitors,” won’t entrust the Justice Department to people who would refuse him. He’ll pick more pliant loyalists. “Anyone who thinks Trump will appoint people on any other basis than the willingness to follow whatever dictates he lays down is just wrong,” said Jamie Gorelick, deputy attorney general for Clinton. Gerson predicted that a future Trump attorney general would be “someone like Barr, only less intelligent and a worse lawyer.”
Expectations for a Second Term
This summer, amid the rising storm of the presidential campaign, the Supreme Court set off new turmoil by largely untethering the president from criminal liability. The court’s conservative majority granted former presidents broad immunity from prosecution for many of their acts in office. Historically, the assumption was that presidents would be liable if they broke the law — that’s why President Gerald Ford pardoned Nixon after Watergate. No longer.The court’s July ruling unequivocally said that the president cannot be prosecuted for violating the post-Watergate norms of independence for the Justice Department. The president has “exclusive authority over the investigative and prosecutorial functions of the Justice Department and its officials,” Chief Justice John G. Roberts Jr. wrote for the majority. Several of our respondents said the license the court gave to the presidency has forever shaken the system. “The immunity decision created enormous risk of abuse of executive authority,” said John F. Walsh, the U.S. attorney for Colorado under President Barack Obama. “The Supreme Court has no sense of modesty or restraint,” said Stephen R. McAllister, the U.S. attorney for Kansas under Trump.
The court said that Jack Smith cannot charge Trump with any of the conduct Barr called “dangerous.” Many of our survey respondents found this ruling deeply troubling — especially because the court also said that lower courts can’t look into the president’s motives in deciding the scope of immunity. “Any future president can say, ‘Go investigate X’ with explicit bad intent, and it’s not a crime,” said John P. Carlin, a former acting deputy attorney general for Biden and an assistant attorney general for Obama. “That’s the most remarkable thing about the Supreme Court’s decision.”
While the court’s decision bestowed immunity only on the president, the president has the power to protect others through pardons. Trump has already exercised this power on behalf of allies like Roger Stone, Paul Manafort and Steve Bannon. Forty-one of our survey respondents said it’s very likely or likely that he would use the pardon power similarly in a second term, and the Supreme Court’s decision would only make it easier. “Presidents could always potentially get subordinates to do things by promising to pardon them if they were prosecuted,” said Keisler, the acting attorney general for George W. Bush. “But there was a serious question about whether the president could extend the power to pardoning himself. The court’s immunity decision fills that gap.”
With loyalists, immunity and pardons, would Trump be unstoppable if he chose to violate the norm of prosecutorial independence? The respondents to our survey were split over how the Justice Department’s nonpartisan professionals — the thousands of career lawyers and F.B.I. agents — would handle an investigation that Trump ordered if it deviated from their standards. Twenty-seven of the 50 said it was very likely or likely that the career prosecutors would follow orders and pursue the case. Thirteen said it was possible. Nine said it was unlikely or very unlikely. “To the extent the president sought to influence the criminal process not based on facts and law, by far the most likely outcome is that it blows up in the president’s face,” said the official who told us that Trump generally made the right decisions.
Some former officials expect the department’s career professionals to succeed in keeping him in check. “The Justice Department has very strong internal norms,” said Michael McConnell, a former federal judge and an assistant to the solicitor general in the Reagan administration. “Such an order would trigger mass resignations.” But other respondents said resignations are rare because in real time, the line between ethical and unethical conduct can blur. “Things don’t go from beautiful to really ugly in one step,” Keisler said. “And everyone wants to find a way to continue to serve. They can tell themselves that the president has been elected and they’re supposed to help him do the job as he defines it.”
One of our survey respondents, Chuck Rosenberg, did resign during the Trump administration, leaving his position as acting head of the Drug Enforcement Administration because he thought Trump didn’t respect legal boundaries. Rosenberg was among the respondents who criticized our survey, for lacking precision and nuance, and who thinks the fears about Trump’s impact on the Justice Department are overblown. Rosenberg was a U.S. attorney during the George W. Bush administration and served on the staff of two F.B.I. directors, and he expressed particular faith in the bureau, noting that it has only one political appointee (the director) out of about 35,000 employees. “It’s impossible to get the F.B.I. to do something that’s antithetical to the bureau’s norms and values,” he said.
Others, however, noted that starting a politically motivated prosecution doesn’t require the buy-in of most or even many F.B.I. agents or career prosecutors. If Trump replaces the F.B.I. director, Christopher Wray, whom he selected to succeed Comey but turned on later, a new loyalist director could handpick a task force of agents who are sympathetic to Trump or don’t want to cross him. (Some agents resisted raiding Mar-a-Lago in search of classified documents because they worried about shoring up Trump’s claims that the bureau unfairly targeted him, according to Rohde.)
Such a task force could then develop a case with prosecutors tapped by the attorney general. “A task force is standard practice,” said Andrew Weissmann, a former general counsel for the F.B.I. and a lead prosecutor in the Mueller investigation. “It wouldn’t be standard to do it for political reasons, but you’d just need a group of the willing. Nor do I know how people who are against it are going to stop it.”
The point is that the internal checks go only so far, former department lawyers told us. “While career officials can thwart lawless behavior here and there,” said Yeomans, the longtime career attorney at the department, “the system depends ultimately on the appointment of people of character and integrity to positions of authority.”
Trump could also adopt a blueprint for decimating the Justice Department entirely. Project 2025, the Heritage Foundation’s detailed plan for the next Republican administration, recommends removing civil-service protections from tens of thousands of federal employees who compose the supervisory ranks. Trump signed such an executive order toward the end of his presidency; it didn’t go into effect because Biden rescinded it. Project 2025 is also building a database with about 20,000 résumés in preparation for restaffing the government. “To rely on the career people” to restrain Trump “when we know he is intent on getting rid of them is foolish,” said Gorelick, Clinton’s deputy attorney general.
Some architects of Project 2025 are jockeying for high-level positions — including attorney general — if Trump wins. They share Trump’s frustration with the appointees who thwarted him during his presidency. “Eighty percent of my time is working on the plans of what’s necessary to take control of these bureaucracies,” Russ Vought, an author of Project 2025 who directed Trump’s Office of Management and Budget (and has been floated as a potential White House chief of staff), said in July at a surreptitiously recorded private meeting. “We are working doggedly on that, whether it’s destroying their agencies’ notion of independence.” Trump has recently distanced himself from Project 2025, but he and his running mate, JD Vance, have close ties to it. CNN found at least 140 people who worked in the Trump administration and contributed to the report.
When we asked survey respondents about the external checks on Trump’s power that are potentially harder to dismantle, several brought up leaks to the press. Much of what we know about the clashes within the Justice Department in Trump’s first term comes from such disclosures. The past is full of examples of leaks that revealed critical secrets to reporters. “The most famous is Mark Felt,” the No. 2 F.B.I. official best known as Deep Throat, who leaked to The Washington Post about Watergate, said Daniel Richman, a former federal prosecutor in New York. “There is a history of law-enforcement officials who fear political influence is tainting their agency’s operations, and who don’t think there is recourse within the government, reaching out to the press.” (Would Trump go after journalists if he’s elected? Some survey respondents said yes.)
Congress has its own power to issue subpoenas and call witnesses. (It’s hard to imagine the criminal charges against Trump without the evidence uncovered by the House committee investigating Jan. 6, even though a number of witnesses refused to answer questions.) The Justice Department’s inspector general can conduct internal investigations, but the process can be slow to produce results.
We aren’t the only ones trying to divine what a second Trump term might hold. In May and June, the Brennan Center for Justice, a nonpartisan institute at the New York University School of Law, held tabletop exercises with 175 experts to play out a range of scenarios based on Trump’s stated plans for a second term. They tested how the system’s checks and balances would hold up if a president abused his power. The group, which included former cabinet secretaries, top Justice Department officials and military officers, played roles like attorney general, governor and military commander and imagined how they would respond if a new president sent troops into the streets to quell protests, or defied a court order, or ordered criminal investigations of Joe Biden and members of the House committee on Jan. 6 (like former Representative Liz Cheney).
Rosenberg, the acting D.E.A. head who resigned under Trump, played the role of a Republican F.B.I. director in the exercise. “We’re going to be fine,” he concluded. “The system is multilayered, with many checks, and the odds that all these terrible things will actually happen is low.” But he was in the minority. The participants were “almost universally sobered,” Barton Gellman, a senior adviser at the Brennan Center, wrote in The Washington Post, “by the paucity of effective constraints on abuse of power.”
Trump’s Legacy
Trump’s refusal to return the classified documents he took to Mar-a-Lago and the pressure he applied to overturn the 2020 election put the Justice Department in a difficult position. Was it better to indict a former president, showing that no one is above the law, or to refrain from doing so, to avoid the entanglement — despite the rules Garland and Biden appear to have upheld — of a Democratic administration’s prosecution of a Republican presidential candidate?In our survey, we asked whether Garland undermined the independence of the Justice Department or set a risky precedent by appointing a special prosecutor to investigate his boss’s chief rival. Forty-one of our 50 respondents said no. Five more said yes but believed that Garland still made the right call. Only four respondents questioned Garland’s appointment of Smith.
Some respondents faulted Smith for overreaching in how he charged Trump. “It was a mistake for them to rely on broad and open-ended theories,” the former Trump official we quoted earlier said of the Jan. 6 charges (for conspiring to defraud the United States and obstructing an official proceeding). “If you can’t point to a prior case in which you charged someone else with the same conduct, you shouldn’t bring this case.”
Many respondents noted that the cases against Trump are plagued by timing problems. It took Garland a year and eight months, after he became attorney general, to appoint Smith. The special counsel then asked the courts, unsuccessfully, to make preliminary rulings in time for Trump to be tried before the November election. Postponing the trials until after the election — now the reality — means that if Trump wins, he controls the outcome. He could dismiss Smith and make the cases go away. “An authoritarian is someone who thinks the law should serve him, as opposed to the people whose interests might not be the same as his,” said Gerson, the assistant attorney general for George H.W. Bush. “That is fundamental to Trump. It’s why some people despise him and others like him.”
By pushing the courts to move quickly, in the view of the Reagan official who said our survey was biased, Smith rushed the case so that the results would influence the election. “That seems to me to have been the biggest threat to the rule of law in the U.S. in recent memory,” he said, “since it involves use of executive-branch prosecutorial power to try to maintain political power.”
This is one of Trump’s chief effects — he forces impossible choices, which in turn provoke new kinds of uncertainty. His actions prompt institutions to react in ways that they haven’t in the past. If they appear to overreact, or otherwise compromise their standards, they play into Trump’s claims that he’s the victim and the government can’t be trusted.
The Supreme Court’s conservative majority and liberal minority expressed dueling fears about the future of American governance in the July immunity decision. “The relationship between the President and the people he serves has shifted irrevocably,” Justice Sonia Sotomayor wrote for the liberal dissenting justices, referring to the majority’s sweeping grant of immunity. “In every use of official power, the President is now a king above the law.”
The conservative justices, by contrast, worried about a cycle of retaliation from one president to the next. “The dissents overlook the more likely prospect of an Executive Branch that cannibalizes itself,” Roberts wrote, “with each successive President free to prosecute his predecessors, yet unable to boldly and fearlessly carry out his duties for fear that he may be next.”
It was the animating concern for the conservative majority — and before Trump, it was unheard-of. Some survey respondents told us to look back at the speech that Attorney General Bell gave in 1978 when he announced the guidelines that shield the Justice Department from partisan influence, which every White House must choose to renew. Bell saw his mission as regaining the public’s trust. “We at Justice are not infallible, but the awesome responsibility for wielding our power fairly is ours alone,” he said. “Our notions of fairness must not change from case to case.”
Then Bell gave what was intended as an avowal but now echoes as a warning. “The department must be recognized by all citizens as a neutral zone,” he said, “in which neither favor nor pressure nor politics is permitted to influence the administration of the law.”
Why Legal Experts Are Worried About a Second Trump Presidency
In a survey of 50 members of the D.C. legal establishment, many warn that Trump could follow through on his threats to prosecute his political adversaries.