WITH high-profile political persecution And deepening polarization With the country divided, legal experts and former Justice Department officials told NBC News they fear the United States has entered a destructive cycle in which presidents target their rivals as a form of revenge.
Experts point to a number of events over the past few years as factors that prompted them to issue the warning. These include numerous criminal cases brought against Donald Trump since the 2020 election, a federal indictment of former FBI Director James Comey after Trump publicly demanded it, and growing public distrust of the Justice Department.
“What we don't want to become the norm is for people to think, 'OK, there's a new administration, now everyone in the old administration is being prosecuted,'” said Berit Berger, a former federal prosecutor in New York. “This is an incredibly dangerous cycle in which no one wins.”
Recent Pew Public Opinion Poll suggests that Americans are increasingly biased toward the Justice Department. Since Trump returned to power, the percentage of Republicans who view the Justice Department has risen 18 points, from 33% to 51%, the survey found. Favorable views of the Justice Department among Democrats during the same time period fell from 56% to 28%.
Carissa Byrne Hessick, a professor at the University of North Carolina School of Law who studies the intersection of prosecutions and politics in the United States, said investigations and prosecutions of several high-ranking officials during the Biden and second Trump administrations have led Americans to suspect the investigations are motivated by politics.
“I think it probably convinced the average American that these decisions were political,” Hessick said. “And it’s bad for the country, and it’s bad for the legitimacy of the criminal justice system.”
Hessick said post-Watergate reforms to bolster public confidence in impartial prosecutions have proven outdated and ineffective.
After Watergate, special prosecutors were appointed to investigate potential crimes by presidents and their aides to prevent abuses by the Nixon-era Justice Department, which targeted enemies of the president for criminal investigations. And FBI directors were appointed to 10-year terms to maintain independence from presidents and avoid illegal surveillance of politicians and political groups, as was the case during the administration of the late director J. Edgar Hoover.
But over time, as partisan divisions grew, confidence in the impartiality of special counsel and other prosecutors' investigations was undermined.
“Our old tools aimed at creating the appearance of neutral and impartial decision-making by prosecutors do not seem to be working,” Hessick said. “The way people talk about prosecutions is so polarized that it's probably not surprising that people think there's a whiff of politics in every prosecution.”
Competing charges
Trump and his fellow Republicans have argued for years that Democrats have systematically used prosecutions to try to damage him politically. Federal prosecutors and state and local officials in New York, Washington, D.C., Florida and Georgia have charged Trump with crimes including election subversion, failure to return classified documents and paying hush money during the 2016 campaign to cover up a previous extramarital affair.
Trump has denied all accusations. A New York jury found him guilty of falsifying business records in a money-for-secrecy case. A Trump-appointed judge dismissed special counsel Jack Smith's indictments alleging misuse of classified documents in Florida, and Trump's election-subversion case was withdrawn after he won re-election. A state election subversion case brought by the Fulton County, Georgia, district attorney is pending.
Last month, a federal grand jury in the Eastern District of Virginia accused by Komi on two charges: making a false statement and obstructing Congress. Comey is accused of lying at a 2020 Senate hearing when he testified that he did not authorize a third party to speak anonymously to the media about the FBI investigation. Comey pleaded not guilty to his arraignment Wednesday.
High-ranking official of the Ministry of Justice told NBC News that professional prosecutors concluded that there was no probable cause to file an indictment. Trump then pressured the acting head of the US Attorney's Office to resign and replaced him with Lindsey Halligan, one of his personal lawyers. Halligan, who has no experience as a prosecutor, presented the case against Comey to the grand jury herself, which is highly unusual.
Neil Siegel, a law professor at Texas A&M University, said: “It seems clear to me that the Comey case is politically motivated.”
He said Trump's two federal prosecutions – for trying to reverse the 2020 election and for retaining and hiding highly classified documents – were much more serious.
“These two federal cases against Trump were serious and involved allegations of the most serious misconduct imaginable in a constitutional democracy,” he said. “The sitting president likely violated federal criminal laws in order to overturn the results of a free and fair election and retain his office.”
Siegel added: “It’s impossible for a president to try to rig an election without it having any legal consequences.”
But Trump won re-election in 2024 by a larger margin than in 2016, suggesting he has effectively discredited the prosecutors who investigated him in the eyes of most voters.
Supreme Court decision
Legal experts point to last year's Supreme Court decision as a key factor that they say has emboldened Trump and could encourage future presidents to attack their political enemies.
It states that the President has “sole authority over the investigative and prosecutorial functions of the Department of Justice and its officials.” He also endorsed a far-reaching version of conservative legal theory known as the unitary executive theory, which classified Trump's oversight of the Justice Department as one of the official duties for which presidents enjoy absolute immunity.
Peter Schein, a law professor at New York University, argues that the result is that current and future presidents pursue prosecutions “no matter how corrupt they are” outside the control of Congress and the judiciary, weakening the power of two branches of government long considered coequal.
“Trump's impudence has effectively been licensed” by the court presided over by Chief Justice John Roberts, Shane said, referring to Comey's prosecution and investigations into scores of other rivals since Trump returned to office in January. “Having written for many years about the possibility of unitary executive theory turning into corrupt authoritarianism, I no longer need hypotheses to prove this point.”
Barry McDonald, a professor at Pepperdine University School of Law, said the Supreme Court could reconsider its immunity ruling and reconsider it if the president engages in clearly criminal behavior.
“If we got to the point where the court's decision seemed to encourage certain criminal behavior by presidents, if the court had a desire to 'fix' the problem, I don't think there would be anything stopping them from abandoning the problematic aspects of the decision,” McDonald said. “We have already seen the court overturn problematic decisions.”
Berger, a former federal prosecutor in New York, argued that prosecutors can improve public confidence in their work by being transparent about the barriers they have to guard against political influence. She also said Justice Department officials should make it clear that prosecutors will not be targeted if political leaders disagree with their decisions.
“The way to restore trust in the Department of Justice is through neutrality and transparency,” she said. “There were a lot of fences built after Watergate, and I worry that we're going to have to do a lot of work to rebuild them.”
