In the two-and-a-half years since the Jan. 6 assault on the U.S. Capitol, Congress passed a bipartisan law closing loopholes in the complex process of choosing a new president that Donald Trump tried to exploit in his push to stay in office after losing the 2020 election.
Candidates for crucial swing-state election posts who backed Trump’s push to overturn the 2020 election all lost their bids in last year’s elections. And, this week, federal prosecutors filed four felony charges against the former president for his role in the scheme to overturn President Joe Biden’s win.
But while those avenues for electoral mischief may be blocked or severely constrained in 2024, the prosecution — along with another federal indictment accusing Trump of mishandling classified information after leaving office — is providing additional urgency among conservatives for a plan to make over the U.S. Department of Justice.
That’s a step democracy advocates warn could mark a new assault on the U.S. system should Trump win the presidency a second time.
“The incentives for him to move in that direction will be even stronger, and we should worry even more about the degree of control he’ll attempt to wield over federal law enforcement,” said Brendan Nyhan, a political scientist at Dartmouth College and co-director of Bright Line Watch, an academic group that monitors democracy in the U.S. “We have many examples from other countries demonstrating the dangers of a political takeover of law enforcement.”
To be sure, other risks for American democracy beyond a takeover of federal law enforcement remain. The myth that Trump won the 2020 election has taken firm hold in the Republican electorate, with nearly 60% of GOP voters saying in an Associated Press poll last fall that Biden was not legitimately elected. The belief has led millions to distrust voting machines, mail balloting and vote counting while leading to death threats against election officials.
Numerous rural counties have seen election conspiracy theorists take control of elections and vote-counting, raising worries of more election chaos next year. Certification of election results remains a potential pressure point for delaying or undermining a final outcome in the next election — whether by local commissions, state certification boards, legislatures or even Congress.
Despite those potential risks, the accelerating GOP primary has highlighted a new worry for some — calls by Trump and his allies for more control of federal prosecutions. Several legal experts highlighted this as perhaps the most troubling threat to the country’s democratic institutions should Trump — or another Republican — win the White House next year.
Currently, the president can appoint the attorney general and other top Department of Justice officials, subject to Senate confirmation, but has more limited tools to change the behavior of career prosecutors.
“Doing away with or diminishing the independence of the Justice Department would be a huge mistake,” said Paul Coggins, past president of the National Association of Former U.S. Attorneys. “We can’t afford for people to lose more faith in the system than they have now.”
He said federal prosecutors have been paying attention to Trump’s recent vows to seize greater control of the system.
“I think the fact that Trump has raised this idea sent shock waves through prosecutors everywhere,” Coggins said.
Trump and other conservatives have argued that such a takeover is overdue, especially because they see the prosecutions against him as the 2024 campaign is heating up as nakedly political. Indeed, after his previous indictment, Trump vowed to pursue Biden and his family should he return to the White House.
“This is the persecution of the person that’s leading by very, very substantial numbers in the Republican primary and leading Biden by a lot,” Trump told reporters after his most recent arraignment. “So if you can’t beat ’em, you persecute ’em or you prosecute ’em.”
At a Republican Party dinner Friday night in Alabama, Trump repeated his claims that the latest criminal case he faces is an “outrageous criminalization of political speech,” and said his “enemies” were trying to stop him and his political movement with “an army of rabid, left-wing lawyers, corrupt and really corrupt Marxist prosecutors,” “deranged government agents and rogue intelligence officers.”
He called the indictment “an act of desperation by a failed and disgraced, crooked Joe Biden and his radical left thugs to preserve their grip on power.”
Allies of Trump’s, including his former budget office head Russell Vought and Jeffrey Clark, a former Justice Department official who was involved enough in the push to overturn the election that he is referred to in the indictment as “Co-Conspirator 4,” are working on a plan to increase control of the federal bureaucracy the next time a Republican is in the White House. That would include at the Department of Justice, where internal regulations limit the influence of the president and other political actors.
Vought and the organization he helps run to map out future control of the bureaucracy, the Center for Renewing America, did not respond to requests for comment.
The push does not only come from Trump, suggesting how his contentious views toward federal law enforcement have shaped a party that has long promoted itself as the protector of law-and-order. On the day the most recent indictment was released this week, Florida Gov. Ron DeSantis called for a new FBI director and the right for defendants to choose not to be prosecuted in Washington, D.C., a primarily Democratic city. House Republicans have empaneled a committee to investigate what they call the “weaponization” of federal law enforcement. FBI director Christopher Wray, a Republican nominated to the position by Trump, has become a frequent target of Republican attacks.
Some longtime conservatives say they’ve become disillusioned with the agency’s conduct, especially in recent years as they see it pursuing Trump with more vigor than Democrats such as Biden’s son Hunter.
“The Justice Department has become more politicized and leaned more and more to the left as the years have gone on,” said Mark Corallo, who was communications director for the department under President George W. Bush.
Corallo, who described his politics as “Never-Again Trump,” said career lawyers in the agency are reliably Democratic. But he also scoffed at the notion of being able to more tightly control them, absent reform of the civil service system that protects their jobs.
“I think there is a zero chance that the career people at the Justice Department will ever bend to his will,” Corallo said.
Trump tried to enlist the agency in his fight to stay in office. Election conspiracy theorists urged him to use the Department of Justice to seize voting machines to highlight the search for fraud. Trump tried to get the agency to announce probes of some of his supporters’ more paranoid theories of how the election was stolen, even after his own attorney general, William Barr, told him there was no indication of widespread fraud.
Wendy Weiser of the Brennan Center for Justice, said Justice Department attorneys helped stop Trump’s attempt to stay in office, and worried that, if he becomes president again, there may not be similar safeguards the next time.
“Had the department not resisted the attempts to enlist it in this conspiracy, it could have actually led to a sabotaged election,” she said.
What happens in future elections, voting officials said, is up to the voters themselves.
“Every American needs to consider what role are they going to play in this moment,” Michigan Secretary of State Jocelyn Benson, a Democrat, said in an interview. “Are they going to potentially support candidates who would enable — not just an obstruction — but an elimination of justice? Or are they going to consider that when weighing their decisions at the ballot box next year?”
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