President Trump’s weekend social media post pressuring Attorney General Pam Bondi to prosecute his political enemies is an outrage against the Constitution’s guarantees of due process and equal protection under the law.
Sadly, it is also more of the same. Democrats paved the way here with the lawfare abuses on which Trump is doubling down.
It is not true, despite what progressives maintain (when a Republican is in the White House), that the Justice Department is “independent,” answering only to “the rule of law.” The Justice Department is part of the executive branch, subordinate to the president, who answers to the Constitution and the people. This makes for tension: prosecutors are professionally bound to follow the law but also are subject to the president’s directives.
The tension has been resolved over time by the norm that, while presidents guide the DOJ’s enforcement priorities as to subject matter (e.g., more emphasis on border enforcement, even if that means less on, say, public corruption), the administration of justice in individual cases proceeds without political interference — conducted by theoretically nonpartisan prosecutors, applying the law as written and checked by the independent judiciary.
Trump is grossly disregarding this practice.
As elucidated by the since-deleted post that he may have intended as a private message to Bondi, the president has been exhorting the AG to prosecute the Obama-appointed former FBI director James Comey, a principal peddler of the Russiagate smear that Trump was a Kremlin mole; Senator Adam Schiff (D., Calif.), who pushed Russiagate as the House Intelligence Committee chairman and led the two impeachments of Trump (over Ukraine in 2019 and the Capitol riot in 2021); and New York State Attorney General Letitia James, who tried to ruin Trump and his family financially with a massive civil fraud case — an abusive prosecution with no fraud victims in which the absurdly astronomical damage award was recently voided by an appellate court.
These are hardly the only prosecutions that Trump has sought; they are just the three mentioned in the post. The matter came to a head because Trump has removed Erik Siebert, the acting U.S. attorney for the Eastern District of Virginia, apparently for declining to bring sure-loser cases against Comey and James. (The equally dubious Schiff probe is in the district of Maryland.)
Trump himself had named Siebert to run the Eastern District. He risibly suggested in the post that circumstances outside his control had nearly led to the confirmation of Siebert, a prosecutor approved by the Commonwealth’s two Democratic senators (Mark Warner and Tim Kaine). This, though, is how U.S. attorney appointments work: presidents have to negotiate with senators from the opposition party, who can otherwise block confirmation — a fact that tends, it is hoped, toward the appointment of prosecutors who elevate law over partisanship. Siebert, a former cop and career prosecutor, also had strong support from Trump’s own appointees at Main Justice for his work pursuing Trump’s agenda of combating violent crime and enforcing immigration law.
Trump has further misused his authority by trying, in several districts, to install loyalist U.S. attorneys in circumvention of the Constitution’s requirement of Senate consent, but courts have begun cracking down on this ploy. In firing Siebert, Trump signals that he’ll keep firing prosecutors until he finds one who’ll indict his enemies. This self-defeating tack will only ensure that the president finds it even harder to fill vacant Justice Department positions, despite recent changes to Senate rules meant to overcome Democratic intransigence.
Disturbingly, Trump indicated that he wants indictments of his antagonists because of carping from his base, which is complaining of the “same old story” as his last term, when there were no prosecutions of Russiagate’s prime movers. As the president should know better than anyone, having been spared potentially serious felony prosecutions by the Supreme Court’s July 2024 immunity ruling, abuses of power — unless they involve traditional corruption crimes, such as bribery — are nigh impossible to prosecute in court. In our system, misconduct such as Comey’s is left to internal discipline (Trump fired Comey in 2017) and to congressional remedies.
Moreover, as Trump should know from James’s fraud case against him — which Democratic prosecutors at the state and federal level declined to charge criminally — misrepresentations on financial documents, such as those he alleges against James and Schiff, do not rise to the level of felony fraud prosecutions absent compelling evidence of intent to defraud and, usually, proof of actual victims. That would hamstring prosecutors on the James and Schiff matters even if the stale transactions were not plagued by statute-of-limitations problems.
Unlike Trump’s armchair analysts, it appears that the Justice Department lawyers Bondi has put in charge of running the controversial cases know the evidence and applicable law intimately. And they would have to live with the professional embarrassment of having cases thrown out — and, if the next Democratic administration follows Trump’s lead, of potentially enduring lawfare investigations against themselves.
That gets to the main abuse. In lawfare, the process is the punishment, even if it doesn’t lead to convictions. Trump closed his post by complaining about the Democratic prosecutors’ indictments against him, suggesting that “JUSTICE MUST BE SERVED” by indictments of his enemies. Whether there are prosecutable cases seems beside the point.
If a president issues lawless orders, the honorable course is for subordinates to resign rather than carry them out, or try to persuade the president to relent. If Bondi is not disposed toward the former, we hope she is trying the latter.
In the meantime, Democrats could become more persuasive advocates against lawfare if they repented for their own. As for Republicans, they ought to imitate last week’s worthy rebuke of FCC Chairman Brendan Carr, by Senator Ted Cruz (R., Texas), for leveraging his power against Trump critics. The first party to figure out the public’s disdain for lawfare will be doing itself, and the country, a great service.