Since Donald Trump has returned to the presidency, we have seen numerous Department of Justice (DOJ) investigations and prosecutions against his political opponents, often presaged by direct threats from President Trump himself. In a healthy democracy, the justice system must not be weaponized to punish political opponents, chill dissent, or pretextually to achieve political objectives — all hallmarks of the authoritarian playbook. But democracy also requires a justice system in which no one is above the law and prosecutions move forward even in politically significant cases so long as those prosecutions are consistent with the law and nonpartisan criminal enforcement priorities. Here are the three key questions for determining whether a prosecution is improperly politicized or comports with the rule of law:

1. Is there evidence suggesting political interference with the federal agencies conducting the investigations? 
2. Are the investigations or charges consistent with publicly available evidence, and would they have been brought against anyone else?
3. Have the investigations or charges been validated by the criminal justice system?

Based on these questions, we have previously concluded that federal prosecutions of Trump were necessary law enforcement efforts. Using them to assess law enforcement investigations and prosecutions of Trump administration political opponents, we find that the administration has frequently veered far over the line into political retaliation. Read below for our detailed analysis.

How to tell if the Trump DOJ is enforcing the law or retaliating against politic

How to tell if the Trump DOJ is enforcing the law or retaliating against political enemies

Decrying “weaponized” justice was one of President Trump’s central themes during the 2024 election campaign. He claimed that then-President Joe Biden and other Democratic prosecutors, as well as “deep state” federal law enforcement officers, were using the criminal justice system to persecute him. But now that Trump has once again assumed the presidency, his Justice Department has unleashed a flurry of high-profile investigations and indictments of its own, many of them aimed at his political opponents or at furthering his political goals. For example:

• DOJ publicly arrested and then indicted a Democratic state court judge in Wisconsin on charges she obstructed an immigration action;
• DOJ indicted a Democratic member of Congress on charges she assaulted a federal law enforcement officer while trying to gain access to an ICE detention facility;
• DOJ arrested Newark Mayor Ras Baraka on trespass charges related to the same ICE facility;
• Federal agents forcibly removed United States Senator Alex Padilla from a press conference where he was questioning DHS Secretary Kristi Noem;
• Federal agents arrested New York City Mayoral Candidate Brad Lander on allegations he assaulted and impeded federal officers while escorting a defendant out of immigration court;
• After weeks of claiming it had no power to do so, and following a highly-publicized lawsuit by his family, the Trump administration brought Kilmar Abrego Garcia back to the United States from El Salvador after a grand jury in the Middle District of Tennessee indicted him on human trafficking charges. Although two judges ordered his release and prohibited immediate deportation, Abrego Garcia was detained by ICE while at a court mandated check-in just three days after his release; 
• The Trump administration targeted multiple people who have spoken out against the war in Gaza for immigration arrests and detention;
• The FBI launched investigations into John Brennan and James Comey, apparently arising out of their respective roles in the investigation of Russian interference in the 2016 election; 
• President Trump launched a “Weaponization Working Group” to “investigate the investigators” who worked on cases against Trump or his allies (a group that includes those prosecuted and convicted for their role in the violence at the Capitol on January 6, 2021);
• President Trump directed his Department of Justice to investigate Joe Biden and his staff on allegations ranging from Biden’s use of an autopen to various pardons he granted during his term;
• Trump’s DOJ announced a taskforce to investigate the Obama Administration for allegedly running a “years-long coup against” Trump.

Protect Democracy has long taken the position that a justice system where no one is above the law is a central feature of a well-functioning democracy. This means that prosecuting politicians and politically-significant cases is not only acceptable, but necessary when doing so is consistent with the law and nonpartisan criminal enforcement policies. However, using the government’s law enforcement powers as a means of punishing political opponents, chilling dissent, or as a pretext for achieving political objectives is a central component of the authoritarian playbook. It goes hand in hand with upending core constitutional requirements of due process and the equal protection of the laws. Prompted by Trump’s criticisms of the actions against him, we created a guide that provides objective criteria for determining when a prosecution comports with the rule of law, and when it is improperly politicized. It is critical for citizens to be able to discern the difference, and equally important to resist the impulse to simply view all politically significant investigations and prosecutions as politically motivated.

The key questions are:

1. Is there evidence suggesting political interference with the federal agencies conducting the investigations? 
2. Are the investigations or charges consistent with publicly available evidence, and would they have been brought against anyone else?
3. Have the investigations or charges been validated by the criminal justice system?

We have previously applied these criteria to the federal prosecutions of Trump and concluded that they were necessary efforts to hold Trump accountable for alleged crimes that were objectively serious, supported by credible publicly-available evidence, and for which any other person who was not a former president would have been prosecuted. In doing so, we took particular note of the Biden administration’s emphasis on maintaining a wall of separation between the White House and DOJ, as well as Attorney General Merrick Garland’s focus on maintaining the DOJ’s independence from politicians and political considerations and elevating the post-Watergate rules and norms.

Now that President Trump has halted the investigations against him by winning the presidency and taking control of the DOJ, the question is how do the Trump administration’s investigations and prosecutions of political opponents fare under those same criteria? The short answer, explained more fully below, is: not well.

1. Is there evidence suggesting political interference with the investigations?

1. Is there evidence suggesting political interference with the investigations?

In a word, yes. From the purposeful dismantling of guardrails to the direct and circumstantial evidence of retaliatory motives attending each case, the investigations described above are openly infused with improper political interference. 

Start with the administration’s intentional and systematic obliteration of guardrails. In the post-Watergate era, the primary means of ensuring that federal law enforcement stays free of improper politicization has been a set of laws, procedures, and guidelines that are intended to guard against political interference in specific law enforcement matters and provide benchmarks for determining whether such interference has occurred. These include White House contacts policies that regulate communications between the White House and the Justice Department and that generally prevent communication between the White House and the DOJ’s career staff, policies that limit public communication about investigations, guidelines governing whether, when, and how to bring federal charges – particularly in cases involving political leaders, and policies that guard specifically against using federal investigations and prosecutions to influence or interfere with elections. These policies and guidelines exist against the backdrop of constitutional guarantees of due process and equal protection of the laws, the constitutional command that the executive branch “take care” that the laws are faithfully executed, and the existence of a nonpartisan career civil service encompassing federal law enforcement officers and prosecutors whose primary mission is ensuring the fair – and nonpartisan — administration of justice.  

President Trump and his political allies and appointees have openly disclaimed adherence to these laws and traditions and to the very idea that law enforcement should be independent of the president’s personal political interests. They have reversed the policy that largely prevented the president from discussing ongoing specific criminal and civil enforcement cases with DOJ. (Indeed, DOJ leadership has removed all of the material extolling the post-Watergate norms added to the DOJ website by AG Garland.) They have signaled in various ways to DOJ’s career attorneys that their job is to represent the president and his political interests and not the United States and its people, such as by summarily firing or reassigning attorneys who participated in the previous administration’s prosecutions, by prohibiting them from expressing professional judgments that differ from that of the political leadership, and punishing them for internal dissent and even for making truthful representations in court – which all lawyers are ethically bound to do. Finally, in addition to dismissing – or inducing the resignations and retirements — of large numbers of career staff, the Trump administration has decimated the Public Integrity Section and eliminated its responsibility for reviewing and gatekeeping criminal investigations of political leaders. This is significant because the Public Integrity Section and its role in gatekeeping politically-sensitive investigations has long been considered among the most important nonpartisan bulwarks against weaponized prosecutions.

Two examples are especially notable. Earlier this year, the Interim United States Attorney for the Southern District of New York questioned an instruction from DOJ’s senior political leadership to dismiss the indictment of Mayor Eric Adams on grounds that the indictment was proper and the dismissal appeared to be a political quid pro quo (Adams is a Trump ally who has pledged support for his immigration agenda). Upon doing so, she and others on the Adams prosecution team resigned. Likewise, when Erez Reuveni, then the career Director of the Office of Immigration Litigation, acknowledged in a court hearing that deporting Kilmar Abrego Garcia to El Salvador was an error, he was suspended and then fired. Reuveni later told the Senate Judiciary Committee that senior DOJ leadership was purposely deceiving the courts and expected career staff to do the same – or else. 

These incidents illustrate not only an absence of guardrails and disregard for rules, laws, and norms, but that government lawyers can no longer be trusted to make truthful representations to courts or give their best professional advice to their political supervisors – both of which have been an important roadblock to law enforcement abuses. 

In fact, a recent news report found that Bill Essayli, U.S. Attorney for Southern California, and his office have dismissed felony charges against at least eight out of 26 people charged in the Los Angeles protests. These dismissals were due to discrepancies and misleading information from officer statements. Dismissing numerous cases in rapid succession is rare and underscores the untrustworthiness of these prosecutions. However, these dismissals have not stopped Mr. Essayli and DHS from publicly posting mugshots of those whose cases were dismissed, reinforcing the Trump DOJ’s decision to move away from the decades of standard practice to limit public communications about investigations and prosecutions.    

In addition to disdaining and destroying the guardrails, President Trump and his senior political appointees have repeatedly announced their intention to engage in retaliatory law enforcement and have publicly commented on pending cases in ways that interfere with the rights of the accused and that would legally jeopardize even prosecutions that arguably have some legitimate basis. Of course, Trump announced his presidential campaign by promising retribution against those who had prosecuted or otherwise opposed him. Since re-taking office, he has followed up by directly ordering criminal investigations of certain foes, such as Chris Krebs and Miles Taylor, while using language like “treason.” His White House press secretary publicly celebrated news of investigations of John Brennan and James Comey, accusing them of “corruption at the highest levels.” And President Trump has called on DOJ to investigate New York Attorney General Letitia James and Rep. Adam Schiff, both Democrats and prominent leaders of the opposition, for mortgage fraud. Trump’s DOJ appointees have followed suit, openly denouncing judges and promising to “come after” them, insisting on sensational public arrests (as they did with Judge Dugan in Wisconsin), threatening investigations and indictments over social media or by publicly released letters, and in the case of Abrego Garcia, making unsubstantiated public sexual assault allegations in connection with announcing his indictment on other charges. In addition, President Trump himself suggested that the prosecution of Abrego Garcia is about proving a political point. “The man has a horrible past,” Trump said,“ and I could see a decision being made, ‘Bring him back, show everybody how horrible the guy is.’” 

These actions are not only clear statements of motive that violate DOJ’s media policies, they could potentially lead to dismissals or other adverse actions even in arguably meritorious cases because of their potential to prejudice potential jurors. 

In sum, as these examples demonstrate, there is substantial evidence demonstrating political interference with the criminal investigations cited above.

2. Is there evidence to support the investigations and indictments?

2. Is there evidence to support the investigations and indictments and are the subjects being treated the same as similarly situated others?

While it’s beyond the scope of this analysis to describe each potentially retaliatory action in detail, in general, the evidence supporting the cases described above ranges from nonexistent to highly questionable. Especially noteworthy is the Trump administration’s proclivity for charging matters as federal crimes and executing public arrests in cases that do not involve bodily injury, other indicia of serious offenses, or a credible flight risk — which departs from DOJ guidelines. 

For example, there is no public evidence that President Trump targets such as Miles Taylor, Chris Krebs, and James Comey committed federal crimes. In other cases, such as those against Judge Dugan in Wisconsin or Abrego Garcia, whether DOJ can present evidence that meets the reasonable doubt standard for the charged offenses remains to be seen. But it is clear that DOJ’s handling of those matters sharply departs from normal policy and procedure. For instance, in addition to the out-of-policy media commentary noted above, the Dugan case featured a public arrest by federal agents in the judge’s courthouse and a shackled public “perp walk.” These actions are prejudicial and disfavored, and for that reason, almost never occur in situations where the alleged crime is non-violent and there is no flight risk. In Congresswoman LaMonica McIver’s case, DOJ charged a federal crime despite video and photographic evidence that — even when described in the light most favorable to the prosecution — does not clearly indicate an intentional use of force by McIver against law enforcement officers. Moreover, DOJ does not allege that anyone was injured as a result of McIver’s actions and similar charges against Newark Mayor Ras Baraka were dropped (see below). For his part, President Trump publicly commented on the evidence, describing the Congresswoman’s conduct as “shoving,” “out of control,” and the “kind of crap” that is “over in this country.”

Abrego Garcia’s case is possibly even more remarkable than the ones involving elected officials. While DOJ vigorously enforces the laws against human smuggling and trafficking — an enforcement program with longstanding bipartisan support — there is no sign that Abrego Garcia was ever investigated for such offenses until after he was wrongfully removed to El Savador and after DOJ claimed it had no power to bring him back to the United States.  

In sum, while some of these prosecutions may have surface validity, the totality of the known evidence and circumstances compels the conclusions that the subjects have been targeted because of the president’s political agenda and not in accordance with a disinterested application of the Principles of Federal Prosecution.

3. Have courts and other legal validators upheld the Justice Department’s action

3. Have courts and other legal validators upheld the Justice Department’s actions?

Thus far, only one of Trump’s actions against an elected official has been dismissed outright – the trespassing charge against Newark Mayor Ras Baraka, which arose out of the same incident that led to the indictment of Rep. McIver. However, that case and others have drawn sharp criticism from judges and prominent legal commentators and prompted extraordinary action by career DOJ attorneys to an unprecedented degree over a 6-month timespan.

At a hearing formally dismissing the charge against Baraka, a federal Magistrate Judge called DOJ’s rush to arrest Baraka and its subsequent retraction of the complaint against him an “embarrassing retraction” that suggested “a failure to adequately investigate, to carefully gather facts, and to thoughtfully consider the implication of your actions before wielding your immense power.” He then admonished the United States Attorney’s Office to “uphold your solemn oath … to justice itself.” 

Likewise, a Magistrate Judge in Tennessee cast doubt on the charges against Abrego Garcia, and the government’s claim that he is a dangerous criminal and sexual predator. “The government alleges that Abrego is a longtime well-known member of MS-13,” she wrote. “But Abrego has no reported criminal history of any kind. And his reputed gang membership is contradicted by the government’s own evidence.” As to the allegations of sex crimes against children, the judge described them as based on many layers of hearsay and entitled to “no weight.” 

These judicial rebukes have played out against the backdrop of mass resignations of career lawyers from DOJ, many of whom have made it clear that they cannot square the current conduct of the Department with their professional responsibilities. As noted above, prosecutors in SDNY refused to participate in what they viewed as a politically-motivated decision to dismiss an indictment. Mr. Reuveni blew the whistle about DOJ’s lack of candor to the courts in immigration matters generally and specifically in the Abrego Garcia case. And prior to Abrego Garcia’s indictment, the longtime Criminal Chief from the Middle District of Tennessee reportedly resigned rather than be part of the process.  

Erez Reuveni summed up the state of play at DOJ in a recent interview with the New York Times: “The Department of Justice is thumbing its nose at the courts, and putting Justice Department attorneys in an impossible position where they have to choose between loyalty to the agenda of the president and their duty to the court.” 

Needless to say, none of this suggests that the Department of Justice is going about its business in a manner divorced from politics.

Trump is using federal law enforcement to punish enemies

Trump is using federal law enforcement to punish enemies

Based on what we currently know, the answers to the questions posed by our guide paint a clear picture of the Trump administration’s view of federal law enforcement – it is a tool to punish Trump’s opponents and chill anyone who opposes his political agenda. Even the cases the administration has advanced that might have some facial validity have been handled in a manner that undermines their legitimacy. And when there is no good reason to trust the word of DOJ lawyers or that its internal rules and traditional norms have been followed, there is likewise no reason for any conclusion other than that the actions discussed here are politically motivated. 

The ultimate tell is DOJ’s willingness to take actions (e.g., poisoning jury pools with public statements, dissembling with judges, and flouting key constitutional and legal rights) that will make winning the cases before juries or getting them past judges harder. But oftentimes an ongoing investigation that cannot be immediately dismissed is just as punitive as a win in court. Such actions and investigations are certainly broadly chilling to anyone inclined to oppose the administration, which may be the end goal. And at the same time, such actions degrade the rule of law and the Department’s ability to protect the public from actual crime and other unlawful conduct. 

Absent political actors holding the Trump administration accountable in ways they have been unwilling to do over the past decade, it is left to what remains of the career government workforce and to the public to resist the weaponization of justice.  

First and foremost, institutional actors must carry out their ethical and constitutional duties. Government lawyers should refuse to participate in illegal or unethical prosecutions. Courts should scrutinize and dismiss retaliatory prosecutions. And bar associations, charged with policing the legal profession, should vigorously discipline lawyers who abuse their powers and violate their ethical obligations. 

Finally, ordinary Americans who are uninvolved in these retaliatory prosecutions should refuse to be intimidated by them. Don’t obey in advance. Continue to voice your opposition, make your wishes known to our elected representatives, participate in protests, and dissent.