It has become commonplace for Donald Trump to talk about how he will use the Justice Department to punish his enemies should he regain the presidency. He routinely calls for prosecuting his current opponent, Vice President Kamala Harris, and regularly accuses her and President Biden of weaponizing the Justice Department against him. Though there is no evidence that Biden or Harris had any involvement in the charges Trump faces, relating to the 2020 election and mishandling classified documents, he frequently asserts that these cases justify his plans for retribution.
Trump’s threats raise questions about what restraints could prevent him from following through. Since Watergate, when Richard Nixon resigned under threat of impeachment for meddling in an F.B.I. investigation, American presidents have taken pains to distance the White House from the Justice Department’s decisions about whom to investigate and prosecute. (The exception to this was Trump during his first term.)
But only norms and precedents, not laws, prevent this. In our system, the attorney general and the director of the F.B.I. sit within the executive branch and answer to the president.
How might a politically motivated prosecution actually unfold? The steps below show exactly how Trump could make his threats real — all while staying within the constitutional limits on presidential power.
Step 1
Appoint Loyalists
Step 2
Open Investigations — or Influence Them
Once Trump has loyalists in key positions, they could begin taking actions that the other branches of government could not initially stop. The executive is fast. The judiciary is slow. And Congress does not have a direct role to play in criminal cases.
If prosecutors decide they do have enough evidence to support criminal charges, then they seek an indictment from a grand jury. That means taking their case to court.
Step 3
Route Cases to Favorable Judges
As an independent branch of government, the judiciary is a check on the power of the president and the Justice Department. Prosecutors could try to boost their odds of success, however, by tying the facts of the case to a jurisdiction where the judges (and the jury pool) are perceived to be partisan, and filing charges there.
If the judge did not do so, and the case went to trial, the government’s proof would be on public display for the first time, and a judge and jury would weigh the strength and weaknesses of the evidence.
If the trial resulted in an acquittal, the case would be over and the prosecution could not appeal. If the defendant is found guilty, a path opens to appeal the verdict.
Step 4
Appeal Adverse Rulings — Eventually to the Supreme Court
Step 5
Deploy the Pardon Power
What if some D.O.J. officials hesitate to follow Trump’s orders for fear of being prosecuted themselves for crimes like obstruction of justice? Trump holds an important card to alleviate their fears: He could invoke the Constitution to pardon anyone he chooses.
The American president is the most powerful person in the world. In any administration, he or she has several ways to use that power for ill to serve his or her political purposes. A president can order troops to suppress protests, for example, or can defy a court order.
But Trump has been clearest, in record and rhetoric, about ordering criminal investigations. As Attorney General Robert Jackson said in a landmark speech in 1940, “The prosecutor has more control over life, liberty, and reputation than any other person in America.”
The vulnerability of people who find themselves at the mercy of unjust prosecutions — with little protection at the outset and no guarantees throughout — can signal a larger breakdown to come. If the public comes to see the Justice Department as compromised, will witnesses and informants continue to cooperate? Will jurors and judges trust prosecutors in court? A president who misuses the law can ruin lives — and shake the system to its core.