Would Justice Dept, FBI prosecute Trump rivals?

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Since he entered the 2024 race, Donald Trump has called for the criminal prosecution of at least 16 rival politicians and 15 law enforcement, military and intelligence officials — according to an NBC News review of his public comments — not to mention workers at two federal public health agencies, two tech billionaires, Google and as any lawyers, campaign donors and political operatives who engage in what the former president has called “unscrupulous behavior” in the election.

A separate recent review by National Public Radio found that Trump had issued threats of prosecution more than 100 times.

But could Trump actually carry out prosecutions of such unprecedented breadth and sweep? And, if so, how would it work?

To understand how that might play out, NBC News interviewed multiple current and former Justice Department and FBI officials, as well as legal experts.

All agreed that what Trump is proposing would shatter 50 years of post-Watergate norms dictating that federal prosecutors don’t take orders from the president regarding criminal investigations. Those rules were designed to prevent a repeat of the abuses of Richard Nixon, who improperly used the Justice Department to punish his political enemies.

But there are ways around the guardrails, the current and former officials said, making it possible for Trump to transform the department into an instrument through which to exact revenge on his political opponents.

“A corrupt U.S. attorney with one corrupt prosecutor can do enormous damage,” said Joyce Vance, who was the U.S. attorney in Alabama and is an NBC News legal analyst.

A new president appoints roughly 300 senior Justice Department officials, including the U.S. attorneys who run offices across the country. All 300 must be confirmed by the Senate, but multiple former Justice Department officials said they fear Trump would install partisans willing to do his bidding.

The U.S. attorneys typically rely on lower-level career prosecutors to do critical investigative work behind the scenes. They can’t be easily fired under current guidelines. But those who resist going along with investigations would face enormous pressure. Some might resign.

In situations where there was resistance, Trump could appoint a special counsel to carry out prosecutions he calls for.

“My fear is that what happens is that the good people will resign,” said Barbara McQuade, a former federal prosecutor and NBC News legal analyst. “Who do they replace them with? People who will go along with illegal orders.”

One of Trump’s more far-reaching proposals, known as Schedule F, calls for the reclassifying the roughly 50,000 career civil servants across the federal government so they can be hired, promoted and fired by Trump and his inner circle.

Even if Trump didn’t take such a drastic step, the officials and experts said, the likely outcome of the upheaval would be an even more extreme version of the chaos, division and protracted legal battles that marked his first term. That would slow the work of the Justice Department, which conducts prosecutions nationwide and oversees the FBI; the Drug Enforcement Administration; the Bureau of Alcohol, Tobacco, Firearms and Explosives; all federal prisons; and multiple other federal law enforcement agencies.

“It’s a recipe for bringing to a standstill all of the unquestionably essential national security work that needs to be done by DOJ and FBI,” warned a former Justice Department official who asked not to be named, citing fear of retaliation.

A former U.S. attorney who asked not to be named added that a version of that chaos is already unfolding in Trump’s transition team, where hard-line Trump supporters are calling for unprecedented use of the Justice Department and the FBI and more mainstream Republicans are resisting such steps.

“Inside Trump transition planning,” the former U.S. attorney said, “there is a battle raging between the normies and the freaks.”

A central focus of a second Trump administration
Both Trump and his running mate, Sen. JD Vance of Ohio, have said the Justice Department would be a core focus of a second Trump administration. Campaigning in Georgia on Oct. 11, Vance said the attorney general would be more important than his own role as vice president.

“The most important person in government, I think, after the president for this cycle is going to be the attorney general,” said Vance, who claimed the current Justice Department is the “most corrupt” in U.S. history and said Trump would need to “clean house” there.

Current and former Justice Department officials flatly dismissed Vance’s claims of corruption, citing the Biden Justice Department’s prosecutions of prominent Democrats, including Hunter Biden, Sen. Robert Menendez of New Jersey and New York Mayor Eric Adams. Democrats have said they believe Trump would look to appoint an attorney general who would drop the pending federal cases against him — for his alleged role in the storming of the U.S. Capitol and mishandling of classified documents — brought by special counsel Jack Smith.

A draft list of a dozen people whom Trump might nominate as attorney general included U.S. District Judge Aileen Cannon, ABC News recently reported. Cannon threw out the classified documents case against Trump, a ruling that was harshly criticized by legal experts and praised by Trump. He called Cannon a “brilliant woman” and dismissed the charges as a “scam case.”

Another name on the list of potential attorney generals was Jeffrey Clark, a mid-level Justice Department official who backed Trump’s false claims of 2020 election fraud. Days before the Jan. 6 assault on the Capitol, Trump’s attempt to install Clark as acting attorney general failed when the entire senior leadership of the Justice Department threatened to resign, citing fears that public trust in the neutrality of the department would be irrevocably damaged.

Another option Trump’s more hard-line legal advisers have discussed is to appoint a series of acting attorneys general who wouldn’t need confirmation from the Senate. Under current federal law, an acting attorney general can serve 210 days at a time.

Small number of loyalists needed
Vance, the former U.S. attorney in Alabama, said it wouldn’t be difficult for Trump to find 93 people — whose only qualification would be loyalty to him — to serve as the U.S attorneys, or the top federal prosecutors, in states across the country.

“You can bring them in from outside — they don’t have to live in the district or the state,” Vance said. “Trump could easily just appoint his most loyal, most malleable folks.”

She added that placing allies in top Justice Department positions would be enough for Trump to carry out his prosecutions. “You don’t have to corrupt the entire office to do a prosecution,” she said. “All you have to do is hire three or four people, find some folks at the FBI, the Secret Service, who want to play ball."

Stephen Gillers, a professor of legal ethics at the NYU School of Law, said that “it saddens me to say” but “there’s no question” that Trump would be able to find lawyers willing to carry out his wishes in the Justice Department.

Gillers praised bar associations for disbarring several lawyers involved in Trump’s effort to overturn the 2020 election results, such as Rudy Giuliani and Sidney Powell, for making false statements in court. But he believes that wouldn’t be enough of a deterrent.

“You’re dealing with 1.3 million American lawyers,” Gillers said. “No doubt he will find 1,000 who will endorse his goals and seek to achieve them.”

Gillers argued that the Justice Department was different from other federal agencies because of its role in instilling confidence that the American legal system is fair.

“The administration of justice is different than the administration of agriculture,” he said. “The administration of law should not be corrupted by politics.”

Gillers harshly criticized the Supreme Court’s recent immunity ruling, which said all actions by the president involving the Justice Department were “absolutely immune” from criminal prosecution. For the first time in American history, he said, a president can order an attorney general to prosecute his political enemies without fear of being criminally investigated for abusing his powers.

“The opinion is arrogant at the expense of the Constitution,” Gillers said. “These five people have rewritten the meaning of the separation of powers in a democratic system, and that is repugnant.”

Trump would also have the power to appoint a special counsel who could, theoretically, carry out investigations of purported corruption that span the country, legal experts said.

Ilya Somin, a law professor at George Mason University, noted that if a prosecution’s evidence were extremely weak, a jury could acquit a defendant no matter the jurisdiction.

Somin argued that federal prosecutions, even if they result in acquittals, can drag on for years and severely damage a person’s professional reputation and ability to get a job.

“For many people, just getting charged and prosecuted is a serious burden,” he said.