By openly demanding prosecutions of Comey, James, and Schiff, Trump has virtually assured there will be no prosecutions of those figures.
A s always happens, the Democratic response to President Trump’s condemnable demand that Attorney General Pam Bondi step up efforts to prosecute Trump’s political enemies is hysterical and devoid of self-awareness.
That’s a big part of why our Machiavellian chief executive does these things. While I know the operating theory of many analysts is that Trump’s post was accidental (i.e., he inadvertently published on Truth Social what he intended as a private message to Bondi), I am not convinced. Yes, the post was taken down quickly, and an effort was made to supersede it with an ode to Bondi, but I doubt Trump does much direct messaging, and I don’t see why he would do it with someone he can dress down in person or in a phone call any time he wants.
Is it an impeachable offense to call for the government’s publicly funded law enforcement apparatus to be used for the president’s personal vengeance? Of course it is. But, to repeat what I argued in Faithless Execution (2014), (a) no president is ever going to be impeached and removed absent a groundswell of political support that cuts across our deep partisan and ideological divides; (b) futile, hyper-partisan impeachment efforts were certain to degrade the impeachment power (compare the 2019 Ukraine impeachment of Trump); and (c) one party’s engagement in abuses of power inexorably makes it harder to amass political support to impeach and remove a president of the opposition party who engages in the same kind of abuses — even if they are arguably worse, or at least more brazen.
Since Obama’s presidency began in 2009, Democrats have gotten shellacked in the 2010 midterms; seen incumbent Obama shed a record 4 million votes (from his 2008 total) in winning reelection in 2012; gotten thrashed in the 2014 midterms (which eventually led to a conservative majority on the Supreme Court); lost the White House and Congress to Trump and Republicans in 2016; made significant gains (including winning the House) because of Trump’s unpopularity in 2018; narrowly won the White House and Congress in 2020 because of Covid and Trump’s unpopularity (they won the Senate in special elections because of Trump’s soft-coup attempt and the Capitol riot); and, in 2022 and 2024, first lost the House, then lost to Trump and lost both houses of Congress, because of their lawfare practices, woke extremism, reckless dismantling of border security, and running of candidates who were alternatively senescent and unserious.
That is, the Democrats have managed to make themselves even more unpopular than Trump — something they don’t seem to get because the press teems with progressive Democrats (who wield steadily less influence . . . except with Democrats), and because they delude themselves into thinking their obsessive loathing of Trump is shared by the public at large.
Trump is never going to be popular nationally, but he’s a fully known quantity who holds steady at around 45 to 46 percent approval — which leaves him underwater by six or seven points. In a crisis (especially one he could cause, such as an unjustified war), I could see Trump crashing below 40, but not much below; it’s just a fact that his passionate political base is quick to find other culprits when he’s in the wrong (something unique to Trump that no successor will inherit).
In stark contrast, the Democrats’ approval ratings have hit record lows (CNBC recently pegged them at 24 percent approval and 32 points underwater). The upshot is that most people don’t care that much about politics, so they’re less apt to be riled by Trump (who combines numbing familiarity with star power) than by Democrats (who don’t seem to like the country very much, insist that boys can be girls, and interrupt our sports and other entertainment diversions with public service announcements about the sundry ways we’re all about to die, if Trump doesn’t kill us first).
Now, there is a strong case to be made against Trump’s lawfare, whose motivations and methods I just described in an NR magazine essay. Democrats get this wrong, too, inveighing about how Trump is eviscerating the “independence” of the Justice Department.
To the contrary, the DOJ is part of the executive branch and answers to the president. Politics does outrank law on the Constitution’s org chart. But that is not the end of the matter because the Constitution itself outweighs politics, and it guarantees the fundamental rights of Americans to due process and equal protection — a hierarchy the president swears an oath to preserve, protect, and defend.
We’ve worked that out over time by norms. The president establishes priorities for the categories of crime that the Justice Department must devote its finite resources to combatting; but the president neither targets disfavored people for prosecution nor shields favored people from prosecution. For the latter, presidents resort to the pardon power if they are willing to take the political heat, but they don’t interfere in the DOJ’s investigations and prosecutions. In addition, and subject to Senate confirmation, the president selects high-ranking law enforcement officers to carry out his policies (AG, Deputy AG, district U.S. attorneys, FBI director, other agency heads and DOJ division heads, et al.).
Beyond that, though, the administration of justice in individual cases is overseen by the president’s appointees and their hires (including more than 6,000 assistant U.S. attorneys in the nation’s 94 federal districts). They are expected to enforce the law objectively, and any cases they bring are overseen by the independent judiciary.
High-ranking appointees and subordinate prosecutors are also guided by a norm of honorable resignation: Because only the president is endowed with executive power (every other executive official is a delegate, exercising the president’s power at the president’s pleasure), there is no authority to defy orders. But if an appointee receives an order from the president that the appointee believes is illegal, immoral, or unethical, then the appointee should resign rather than carry out the order. (Ditto an objectionable order that the appointee issues to a subordinate. No insubordination; either obey or resign.)
Now, before you start throwing stuff at me, I said these were norms; I didn’t say there was anything close to perfect compliance with them. Indeed, it’s the occurrence of the abnormal that often makes us notice and appreciate the norms.
Variation from the norms can be enforced only by politics — i.e., Congress’s oversight powers and, ultimately, the ballot box. Congress has the power to conduct oversight, expose executive abuses in public hearings, defund wayward prosecutorial initiatives, defund executive priorities, refuse to confirm presidential appointees, impeach high-ranking officials who abuse their powers, and impeach the president if the transgressions are sufficiently grave. (President Nixon resigned under the weight of Watergate impeachment allegations that included abuse of investigative and prosecutorial power.)
Law enforcement can’t compel obedience to the norms because courts will not interfere in a president’s direction of the Justice Department, no matter how appalling, except to the extent that the rights of individuals are violated. Note that in its presidential-immunity ruling, Trump v. United States (2024), the Supreme Court invalidated charges based on Trump’s attempt to exploit the Justice Department in promoting bogus claims of election fraud. It’s significant that the Court didn’t approve of Trump’s misconduct. Instead, it ruled — correctly in my view — that criminal prosecution is not our system’s remedy for a president’s abusive directives to DOJ leadership.
I understand the frustration with a system enforced by norms. We like to think of ourselves as a rule-of-law culture. Still, the law can’t right every wrong, and our constitutional order is undermined when we ask it to do too much — such as doing Congress’s job. The history of siccing special prosecutors on presidential administrations illustrates that they prevent the government from functioning properly. That hurts the country in ways that are real even if not always palpable.
On the other hand, the norms work — not perfectly, but more effectively than government besieged by special prosecutors.
Assuming that President Trump deleted his offensive post because he never intended it for public consumption, why do you suppose that is? It can only be because he knows it was wrong. That’s why, even as he squawks that his opponents are criminals, he publicly claims that he doesn’t interfere in the DOJ, leaving it to his appointees to determine whether his antagonists should be charged. In reality, we all know he’s pressuring Bondi and her subordinates. Even with Donald Trump, however, vice pays tribute to virtue: He denies pressuring Bondi, which he wouldn’t bother to do unless he understood that Americans don’t like the appearance (to say nothing of the reality) of presidents ordering prosecutions. (Biden also habitually bloviated about the sanctity of DOJ independence even as reports emerged of his frustration with AG Merrick Garland for dragging his feet in getting Trump indicted.)
Trump is president, despite being twice impeached (the second time, deservedly so) and indicted multiple times. It’s not just that many charges were dubious (although Trump’s claims to have done nothing wrong are laughable); it’s that Democrats strategically, and in crass violation of due process, tried to schedule a series of trials to occur prior to the election that would have required Trump’s presence in courtrooms when he should have been campaigning. They failed only because of the immunity litigation. But legalities aside, the public’s revulsion at lawfare hardball is obvious.
Trump has to know this. Regrettably, his character is such that he can’t help himself: He believes in two eyes for an eye, believes that he always has to punch back twice as hard as whoever has offended him, even if it’s petty and he’s punching down. He is also so self-absorbed that he thinks what the Democrats did to him will offend the public more than his exploitation of the government’s law enforcement apparatus against Democrats (the mirror image of the Democrats’ 2024 miscalculation). These pathologies can’t be fixed at this point in the life of a man nearing 80, but at least he knows he needs to pretend he’s not doing what he’s doing.
Of course, it would be better if he didn’t do it at all. It’s tragic, with the historic opportunity he has been given, that he can’t be satisfied with winning the presidency, despite the odds and the Democrats’ machinations, as all the comeuppance he needs. But how surprising is that, really? Trump lost the presidency as an incumbent in 2020, despite significant successes and against a weak opponent, because he couldn’t get over himself, exhausting the country. It’s not exactly shocking that he’s again proving to be his own worst enemy.
The norms, in any event, are asserting themselves. By openly demanding prosecutions of Comey, James, and Schiff, Trump has virtually assured that there will be no prosecutions of Comey, James, and Schiff. The prosecutors haven’t wanted to bring such flawed cases, and now the judges will have no compunction about throwing them out on selective-prosecution grounds (and insufficient-evidence grounds . . . and statute-of-limitations grounds . . .) if Trump can find hacks willing to try indicting. (I say “try” because, as recent experience in Washington, D.C., shows, grand juries may not be willing to indict. The Trump DOJ’s recent problem in this regard may not be limited to Washington’s jury pool, though it bears noting that the districts where Trump’s enemies are under investigation also lean heavily Democratic; it could also signal the erosion of another norm: grand juries’ confidence in DOJ prosecutors.)
Meantime, Trump’s ousting of Erik Siebert as U.S. attorney for the Eastern District of Virginia (venue for the Comey and James investigations) will make it incalculably harder for the president to get pending and future Justice Department appointees confirmed. That problem will be exacerbated as courts begin invalidating actions taken by lawyers Trump has tried to install as acting U.S. attorneys without securing Senate confirmation. (A district judge ruled last month, for example, that Alina Habba’s tenure as Trump’s acting U.S. attorney in New Jersey had been invalid for weeks, raising the specter that enforcement actions taken against numerous criminal defendants will be nullified.)
Senate Democrats were already unified in opposing Trump’s nominees. Now, if the public comes to believe that the president is determined to install politically motivated loyalists rather than experienced, law-adherent prosecutors, and that criminals could go free as a result, it will become increasingly difficult for Trump to get Republicans to confirm them (their majority being very thin and finally showing signs of restiveness).
I doubt Bondi will resign over Trump’s post (after all, I doubt it’s the first time the boss has given her this lecture). I will hope that she and the other appointees continue trying to convince Trump — as reports indicate they attempted to do, without success, in seeking to save Siebert’s job — that lawfare is a lost cause that is squandering the Justice Department’s credibility and capacity to accomplish Trump’s worthy law enforcement objectives. Trump is Trump, and he’s not going to change, but he probably comprehends that there is zero chance of replacing Bondi and others with nominees who both (a) are willing to charge politicized cases the current appointees won’t and (b) can get confirmed.
As I contended in the magazine piece, there is a great political opportunity on the table for the side that confesses its sins and commits to end lawfare. Alas, I’m not holding my breath.