The White House Office of Justice

Trump moves to bring the DOJ even further under his purview.

In December 2006, the George W. Bush administration fired seven U.S. attorneys in the middle of their terms.

Critics alleged that at least some of the dismissals were politically motivated, due to frustration from the White House either that the prosecutors were investigating Republican officials or weren’t investigating certain Democrats.

The incident spawned congressional, inspector general, and special prosecutor investigations that lasted months — in some cases, years. Attorney General Alberto Gonzales was subjected to multiple rounds of grueling congressional testimony, where senators like Lindsey Graham said it was clear that the Bush officials had “made up reasons” to fire the prosecutors.

Several Republican senators called for Gonzales’ ouster, and seven supported a vote of no-confidence against him. Ultimately, Gonzales, his deputy, both their chiefs of staff, and two successive directors of the Executive Office for U.S. Attorneys were forced to resign: it was that big of a scandal.

On Friday, President Trump fired a U.S. attorney, too. This time, there wasn’t speculation that it was done because the prosecutor was hesitating to charge political rivals of the president’s. Instead, Trump said it fairly directly.

In a Saturday Truth Social post addressed to Attorney General Pam Bondi, Trump referred to Erik Siebert — whom he appointed as U.S. attorney for the eastern district of Virginia in January — as a “Woke RINO, who was never going to do his job.”

“He even lied to the media and said he quit, and that we had no case,” Trump said, seemingly referring to the potential prosecution of New York Attorney Letitia James, a Democrat who previously brought a civil fraud case against the president. “No, I fired him, and there is a GREAT CASE, and many lawyers, and legal pundits, say so.”

The president effectively ordered Bondi to prosecute James and other Trump critics. “Pam: I have reviewed over 30 statements and posts saying that, essentially, ‘same old story as last time, all talk, no action. Nothing is being done. What about Comey, Adam “Shifty” Schiff, Leticia??? They’re all guilty as hell, but nothing is going to be done,’” Trump wrote, adding: “We can’t delay any longer, it’s killing our reputation and credibility. They impeached me twice, and indicted me (5 times!), OVER NOTHING. JUSTICE MUST BE SERVED, NOW!!!”

According to the New York Times, Siebert had recently told senior Justice Department officials that investigators in his office had found insufficient evidence to charge James with mortgage fraud, as several Trump allies had urged. (The investigation stems from a house James bought in Virginia with her niece. Trump officials surfaced a document in which James said that she planned to live in the house as a primary residence, similar to the allegations against Federal Reserve governor Lisa Cook. However, according to the Times, James’ “exchanges with the lender showed her having communicated clearly that she did not plan to live in the house, and there was no indication that the single document on which she said otherwise was taken into account during the transaction.”)

Siebert had also raised concerns about charging former FBI Director James Comey with lying in a leak investigation, having run into roadblocks in the probe that would have made it difficult to build a case against him. (That inquiry is based on testimony Comey gave to the Senate Judiciary Committee on September 30, 2020, which means the statute of limitations is set to run out in eight days. Recall Trump’s words: “We can’t delay any longer.”)

Trump announced Saturday that he was appointing Lindsey Halligan, a White House aide who has been overseeing Trump’s efforts to remake the Smithsonian museums, to succeed Siebert. In Trump’s first term, critics would often allege that Trump wanted the Justice Department to serve as his own personal law firm; now, he is merely stocking the agency with his former personal lawyers.

Trump’s second-term picks for the five top slots at the department — Attorney General Bondi, Deputy Attorney General Todd Blanche, Associate Attorney General nominee Stanley Woodward, former Principal Associate Deputy Attorney General Emil Bove, and Solicitor General D. John Sauer — all formerly represented Trump or his co-defendants in his Biden-era indictments. (Bove is now a federal judge.) And now Halligan, who defended Trump in his classified documents case, is Trump’s second ex-lawyer who he has elevated as a U.S. attorney, joining Alina Habba in New Jersey.

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According to the Times, Trump officials are also exerting pressure on Kelly Hayes, the U.S. attorney in Maryland, to bring cases against Trump adviser-turned-critic John Bolton, for allegedly mishandling classified information, and Sen. Adam Schiff (D-CA), also for mortgage fraud.

Previously in Trump’s second term, a Trump-appointed acting U.S. attorney resigned after being ordered to drop a case against New York City Mayor Eric Adams, whom the White House wanted to partner with on immigration enforcement. Meanwhile, according to allegations reported by MSNBC this weekend, the Trump Justice Department closed a Biden-era bribery investigation into White House border czar Tom Homan.

More and more, as Trump has openly ordered the attorney general to open and close investigations to serve his political ends, the agency is beginning to resemble a West Wing subsidiary — the “White House Office of Justice,” if you will — rather than an independent Cabinet department.

Legally, there is nothing wrong with this.

The president is the nation’s chief law enforcement officer, and the attorney general reports directly to him. There is no law stopping the president from ordering the AG to start or stop a prosecution — that would be strange, after all, considering the president is the AG’s boss.

According to research by the University of Virginia law professor Saikrishna Prakash, George Washington directed a U.S. attorney to drop prosecutions against two “respectable persons” who had been charged as part of the Whiskey Rebellion, while John Adams personally ordered U.S. attorneys to carry out prosecutions under the Alien and Sedition Acts, a series of laws aimed at suppressing criticism of the president.

“I now instruct you, gentlemen, to commence and carry on the prosecution accordingly,” Adams wrote to a pair of prosecutors in one case. These episodes, Prakash writes, reflect “the understanding” on the part of the Founders “that the president was constitutionally empowered to control the representation of the United States” in court.

Over the decades, of course, especially since Watergate, a norm of Justice Department independence has emerged, setting up an expectation of distance between the White House and the DOJ. This is one of those facets of American government that exists in an awkward gray area: it isn’t written down in the Constitution or the U.S. Code, and has been tested before (see: George W. Bush firing seven U.S. attorneys), but rarely to the degree Trump is pushing now.

As I’ve written before, however, the American legal system ensures that convicting someone of a crime — or even, for felonies (which require grand jury indictments), accusing them of one — isn’t so simple as a government prosecutor making an allegation.

The most revealing phrase in Trump’s Truth Social post to Bondi was “same old story as last time, all talk, no action,” a clear reference to his frustrations in his last term that, despite many fulminations, he was never able to convince his attorneys general to prosecute Hillary Clinton, or Barack Obama, or any of his other political rivals.

This is, at least in part, because those attorneys general — and, seemingly, Bondi too, even though she is a much closer ally of his — recognize what Trump does not: the fundamental difficulty of bringing a high-profile criminal case against someone without sufficient evidence.

There are several hurdles in the legal process Trump will have to jump through: convincing a prosecutor to sign on the dotted line, convincing a grand jury to bring an indictment, convincing a judge not to dismiss a case, convincing a trial jury to unanimously find guilt, and then convincing judges in the appeals process to uphold that verdict.

None of this is easy if a case is weak, and Trump has been stopped by many of these obstacles before: Siebert and other prosecutors Trump appointed have balked at bringing politicized charges; grand juries in Washington, D.C. and California have declined to bring indictments requested by the DOJ; just on Friday, in a civil (not criminal) case, a judge dismissed Trump’s lawsuit against the New York Times.

These cases will also not be made easier if there is public reporting suggesting that top prosecutors felt they were not legitimate (per the Times, even Deputy AG Todd Blanche, a former Trump lawyer, agreed that the evidence against James was flimsy) and if Trump continues to taint potential jury pools, declaring on social media that prospective defendants are “guilty as hell.”

At the end of the day, if Trump wishes to place the DOJ fully under his purview and fire appointees until he finds prosecutors willing to bring certain charges, he will likely be able to do so. But actually securing convictions — and avoiding the embarrassment of being shot down either at the grand jury, judge, or trial jury level — will be much harder, which is probably why history is repeating itself for Trump, as a handpicked attorney general drags their feet on following his prosecutorial directives.