Donald Trump and the Department of Justice

Editor's note: This piece is cross-posted with "Executive Functions."

What follows are two sets of reflections on the rule of law at the dawn of Trump 2.0. One is a distillation of an article I have written for The Atlantic on President-elect Donald Trump’s nominations of his personal legal team to the most senior positions in the Department of Justice and what this choice raises for the coming confirmation process. The other is prompted by Quinta Jurecic’s opinion piece in the New York Times on what the 2024 election suggests about voter attitudes to rule of law values, and in particular the significance of the Jan. 6-related criminal prosecutions of Trump.

In an essay published last week in The Atlantic, I note the extraordinary steps Trump is taking to make the Justice Department his own, in the most personal terms. He has nominated to the top department posts—deputy attorney general, principal deputy attorney general, and solicitor general—members of his personal legal defense team. And his nominee for attorney general was also a member of his personal legal team, in the first impeachment trial.

To fully appreciate the questions this raises, it is helpful to look back on the history of the Department from the founding to the present. As I explain, there has always been tension:

between professionalism and fidelity to the president’s policy agenda—between “too little” and “too much” politics—and it has persisted to this day. “Too little” politics, and the president was denied a legitimate instrument for the achievement of his policy goals; “too much” politics, and the impartiality of law enforcement would be compromised.

The sweet spot lies somewhere between “too little” politics and “too much.” In the article, I discussed how various presidents have purported to strike this balance—or, like Richard Nixon, failed disastrously to do so.

Only Trump has moved to build, at the Justice Department, in its senior ranks, a small law firm made up of his personal lawyers, and he has done so while expressly rejecting the values of “independence.” Loyalty, to him, is paramount, and he may believe that he has locked it down with these nominations.

This places great importance on the Senate’s duty in the confirmation process to question these nominees on how they understand their role in the circumstances. They should be scrutinized specifically about their commitment to existing Justice Department policies and norms intended to manage the “too little”/“too much” political boundary lines. As I note in the piece, an early indication of how at least one of these nominees may manage the lines is not promising.

But the Justice Department also faces questions about the past and what became of the cases it brought against Trump. In an opinion piece in the New York Times, Jurecic asks “why voters seem to have cared so little about [the] values” of equal justice under law. Her question is motivated in large part by the electorate’s apparent indifference to the federal prosecution of Donald Trump for the events of Jan. 6.

In exploring the possible reasons for this indifference, she sees the department as having badly failed. The attorney general’s “slow and careful approach” to this criminal case effectively “allowed Mr. Trump to slip free of criminal accountability.” Then the Supreme Court did its part by both adopting a similarly leisurely pace and “casting the prosecution into legal uncertainty in its ruling on presidential immunity.” For these reasons, “voters could be forgiven, not seeing haste on the part of the legal system to treat Mr. Trump’s abuse of power as a matter worthy of condemnation, if they concluded the January 6 must not have been such a big deal.”

This important issue will engage us for a long time to come. It can also be put in different terms—ones presumably acceptable to even those commentators who are generally more sympathetic to Trump than Jurecic, or who would not agree that his voters must have cared little about rule of law values because they declined to find the criminal prosecutions to be a “deal-breaker.” One possible version: How could a presidential candidate widely denounced at the time for his conduct on and in relation Jan. 6, even by his own party’s leadership, and who was then prosecuted for it, escape decisive political consequences and win a second term? 

The possible additional factors bearing on the answer—an answer to a complex question about public opinion—go beyond the pace of Justice Department and Supreme Court decision making, and complications like the immunity ruling, which Jurecic cites. Among those other factors:

• The Senate “tried” and “acquitted” Trump for this conduct. Yes, the Republicans largely defended their vote as a constitutional judgment that the impeachment process was not appropriate in the case of a former president, and not for the purpose of disqualifying him from future officeholding. But the Republican Leader expressed the view that he had “probably” not committed a crime (incitement). And what many in the public presumably heard most loudly and clearly was “acquittal.”
• Trump managed to persuade a large slice of the electorate of his baseless insistence that the election was stolen, causing still others to at least question the outcome, which may have cast for those voters a different light on the background of Jan. 6.
• The public then became aware of a movement to have states disqualify Trump from the 2024 ballot on the grounds that the Constitution barred insurrectionists from holding office—and then heard that the Supreme Court ruled unanimously that the states could not stop him, on a charge of insurrection, from running again.
• Voters who followed the federal Jan. 6 case against Trump would have learned that the charges did not include the crimes of insurrection or incitement.
• The federal Jan. 6 prosecution may have blurred in the public perception into what for many appeared to be an ill-motivated legal onslaught against him—the classified documents prosecution, and the prosecutions in New York and Georgia. Some polls registered this perception at anywhere from 31 percent to 43 percent. This aided Trump in building his claims of persecution, especially as the local prosecutions were brought by Democratic elected officials.
• The fact that the Jan. 6 prosecution was brought by the administration of Joe Biden—Trump's 2020 and 2024 political opponent—may have been  enough to discredit it in the eyes of a large portion of an already (and always) cynical or skeptical, and deeply polarized, electorate.

It is hard to say how much of these events, developments, and decisions, singly or in some combination, affected public opinion. It seems reasonable to assume that they made some difference in voters’ perception of the rule-of-law values at stake in the Jan. 6 cases, in their judgment as they cast their ballots of whether what happened that day was a “big deal.” Some apparently concluded that to the extent that “democracy was on the ballot,” it was Trump, alleging partisan weaponization of the law to destroy him, who stood on the right side of the rule-of-law issue. 

Jurecic asks an important question about how voters understood rule of law issues in the last election, and institutional failure may well be part of the answer. Indeed, voters across the political divide may agree on this general proposition—but not on which institutions failed and/or how. And in giving their opposing accounts, they will disagree still more about the events and decisions that most defined the rule of law issues at stake in the last four years. And that means we may be in an even greater muddle than even Jurecic suggests.