Donald Trump’s sweeping threats if he wins the presidency again to name a special prosecutor to “go after” Joe Biden and take legal action against other foes would subvert the rule of law in America and take the country towards authoritarianism, former justice department officials and scholars have warned.
Trump’s escalating legal threats have targeted “corrupt election officials” lawyers, donors and others he falsely deems out to steal November’s presidential election, and have popped up variously on his Truth Social platform, at campaign events and at an elite police group he addressed this month in North Carolina.
Trump’s menacing pledges to essentially weaponize the justice department against opponents would mark a sharp break with the Department of Justice’s mission statement, which cites as core values “independence and impartiality”.
“Donald Trump is making many public threats to use the legal system to punish his enemies, which seems to be anyone who opposes him,” said the former deputy attorney general Donald Ayer, who served in the George HW Bush administration. “This conduct is utterly without precedent in campaign history, threatens all of our freedoms, and violates our basic rule of law.”
“Trump’s escalating threats to pervert the criminal justice system need to be taken seriously,” said the former justice department inspector general Michael Bromwich. “We have never had a presidential candidate state as one of his central goals mobilizing the levers of justice to punish enemies and reward friends. No one has ever been brazen enough to campaign on an agenda of retribution and retaliation.”
Critics note that Trump and top allies at the conservative Heritage Foundation, which produced a far-right blueprint for a new Trump administration dubbed Project 2025, have signaled plans to overhaul the justice department to give the president and loyalists more power in decisions about who to investigate and prosecute.
Not coincidentally, Trump’s sweeping attacks and threats come as he faces multiple federal charges from special counsel Jack Smith of conspiring to overturn his loss in 2020 to Biden and improperly retaining hundreds of classified documents after he left office. While a Florida judge in a widely criticized move dismissed the documents case, Smith in August appealed that decision.
Trump this year was convicted on 34 counts of business fraud in New York for altering his company books to hide $130,000 in hush-money payments to the adult film star Stormy Daniels who had alleged an affair with Trump before he took office in 2016.
During his debate on 10 September with Kamala Harris, Trump derided all these charges and others as “fake cases”. Previously, Trump has painted his conviction in New York and the federal charges as one sprawling political conspiracy stemming from the “weaponization” of the justice department and has vowed Biden is “going to pay a big price” for the various prosecutions Trump faces.
Former prosecutors and some ex-Republican members of Congress warn Trump’s barrage of legal threats pose serious dangers of politicizing the justice department for his agenda of retribution.
“Trump will use the power of the federal government, and especially DoJ, to intimidate and possibly prosecute all sorts of political opponents he deems hostile to him,” said former Republican representative Charlie Dent of Pennsylvania. “That’s one of the many reasons he’s unfit to be president.”
Likewise, ex-federal prosecutor Paul Rosenzweig warned: “Trump is threatening to prosecute those who stole the election from him in his warped reality,” adding that “his threats to undermine the rule of law have escalated.
“Trump is no conservative, he’s a radical. There’s a reason why we have a long tradition of trying to isolate the attorney general from political influence.”
Ominously, Trump’s threats of prosecuting foes now seems to dovetail with his new conspiratorial charges of election fraud this year, in a clear echo of his false claims that he lost in 2020 due to rampant voting fraud.
On Truth Social on 7 September, Trump starkly warned: “WHEN I WIN, those people that CHEATED will be prosecuted to the fullest extent of the Law, which will include long term prison sentences so that this Depravity of Justice does not happen again.”
To drive home his dark threat, Trump added: “Please beware that this legal exposure extends to Lawyers, Political Operatives, Donors, Illegal Voters, & Corrupt Election Officials. Those involved in unscrupulous behaviour will be sought out, caught, and prosecuted at levels, unfortunately, never seen before in our Country.”
Repeating debunked claims that Democrats played a role in sizable fraud in 2020, Trump vowed that he, legal scholars and attorneys were “watching the Sanctity of the 2024 Presidential Election very closely”.
In a similar vein, Trump urged the national board of the Fraternal Order of Police that endorsed him this month to help “watch for the voter fraud, because we win without voter fraud … We win so easily.”
Trump added that he thought police could help him “just by watching, because, believe it or not, they’re afraid of that badge”.
Such targeted threats raising the phoney spectre of election fraud to rob Trump of victory this year, are prompting some ex-prosecutors to worry that Trump may be able to intimidate non-partisan election workers.
“We often worry that the threat of criminal prosecution will chill appropriate conduct,” the Columbia law professor and ex-prosecutor Daniel Richman said. “So I do fear that those who are charged with independent roles in elections will lean over backwards to accommodate Trump, at the cost of their actual neutrality.”
If Trump wins, Richman cautioned that he may not face serious congressional checks.
“Historically, Congress has played an important, although variable role, in preventing presidents from abusing their authority over prosecutions. But the Republican party right now can’t be counted on to do that.”
In a related sign of Trump’s disregard for legal norms, Trump has repeatedly extolled many of the convicted participants in the violent attack on the Capitol on January 6 as “patriots” and “hostages” and promised that he would seriously consider pardons for a number of them.
At a Wisconsin rally this month Trump pledged if he wins this fall to “rapidly review the cases of every political prisoner unjustly imprisoned by the Harris regime”. Although four of his supporters died of various causes on January 6 and a police officer died within days, Trump last month falsely claimed at a news conference that no one died due to the insurrection.
Without mentioning Trump, the attorney general, Merrick Garland, on 12 September in a fiery speech to US attorneys nationally and justice department staff denounced any moves that would turn the department into a “political weapon”, and the “escalation of attacks” against its career staff.
“Our norms are a promise that we will not allow this nation to become a country where law enforcement is treated as an apparatus of politics,” Garland added.
Taken together, Trump’s nonstop threats to use the Department of Justice to go after his political foes and others he imagines are out to steal the election are at sharp variance with democratic principles, say legal experts.
“The essence of a justice system in a democracy is that it is responsive to the rule of law,” the former federal judge and Dickinson College president John Jones told the Guardian. “Trump’s fulminations are anything but. At bottom he means it to have a chilling effect on supporters of a rival.”
Trump’s verbal assaults are “unprecedented in the annals of American democracy and have hallmarks of authoritarianism”.