Since taking office last week, the Trump administration has fired, demoted, and reassigned career investigators and prosecutors across the Department of Justice, moving rapidly to politicize an institution over which the president has reportedly said he has an “absolute right” to total control. Much has been said in recent days about the impact of these unprecedented personnel moves on the Department’s independence and continued ability to address urgent national security and public safety threats, not to mention the morale of its workforce. But the ouster of career Department officials creates another, more insidious potential threat: that Trump and his allies will use the Department to hold onto power in future election cycles, as they tried and failed to do in 2020.
As a former Senate investigator, I led the Senate Judiciary Committee’s investigation into efforts by Trump and his allies, including then-Acting Civil Division Assistant Attorney General Jeffrey Clark, to conscript the Department into helping overturn the 2020 presidential election results. Our investigation laid the groundwork for the House Select Committee on the January 6 Attack’s (“January 6 Select Committee”) examination of the same misconduct, and was the first congressional inquiry to expose Trump’s repeated calls to Department leaders about the investigations he wanted them to conduct.
We also exposed Clark’s scheme to supplant then-Acting Attorney General Jeffrey Rosen and insert the Department in the appointment of swing state electors, along with other efforts by Trump and his allies to use the Department to overturn the election. By now, the ending of this chapter in the January 6 story is familiar: after Department leaders threatened mass resignations in a dramatic Oval Office meeting, Trump backed down from installing Clark as Acting Attorney General. As then-committee chair Dick Durbin said when we released our investigative findings, it was only because of “a number of upstanding Americans in the Department of Justice [that] Donald Trump was unable to bend the Department to his will.”
The Importance of Norms in Protecting the Department’s Work from Politics
The Senate Judiciary Committee’s investigation underscored a basic feature of the nation’s chief law enforcement agency: much of its work is guided by internal norms, not laws passed by Congress. These norms were put in place after Watergate to protect the Department’s independence from politics and ensure its decisions to investigate and prosecute are based only on the facts and the law. Oversight by Congress and independent Inspectors General can expose when the Department strays from its norms, but their implementation ultimately comes down to the principles of 115,000 individual Department employees.
One norm that is central to the Department’s independence is its longstanding policy restricting communications between Department officials and the White House about individual investigations, criminal prosecutions, and civil enforcement actions. This policy and a companion typically issued by the White House has been reaffirmed by Attorneys General and White House Counsels of both parties, and it’s designed to ensure that federal investigations and prosecutions are driven by facts, not politics. In 2020, these restrictions were flouted by high-ranking officials including White House Chief of Staff Mark Meadows, who repeatedly asked Department leaders to open criminal investigations of false election fraud claims.
The Department’s norms don’t just insulate law enforcement decisions from politics—they also insulate politics from inappropriate law enforcement. Federal prosecutors have a well-established, legitimate role in enforcing criminal laws passed by Congress, including laws that punish the corruption of government processes (think bribery and fraud) and electoral processes (think campaign finance violations and ballot fraud). Because of the sensitivity of these types of enforcement actions, Department policy typically requires agents and prosecutors to consult with the Criminal Division’s Public Integrity Section before initiating them. These consultation requirements help ensure the Department applies the same standards to similar cases, so a Republican politician is treated no differently than a Democratic politician who engaged in the same misconduct. More broadly, they help ensure the Department makes decisions to investigate and prosecute based on the facts and the law, not politics or other improper considerations.
Norms also play a critical role in ensuring the Department stays in its lane during elections. The Public Integrity Section’s Election Crimes Branch has explained in longstanding internal guidance that the Department’s role in election crime cases is limited, and that “the Department does not have a role in determining which candidate won a particular election, or whether another election should be held because of the impact of the alleged fraud on the election.” This guidance also recognizes that “the fact of a federal criminal investigation may itself become an issue in [an] election”—a reality that undoubtedly motivated Trump’s demand that Department leaders “just say the election was corrupt and leave the rest to me.” For these reasons, internal policy makes clear that “the Department should not engage in overt criminal investigative measures in matters involving alleged ballot fraud until the election in question has been concluded, its results certified, and all recounts and election contests concluded.”
Department officials deviated from this longstanding norm in 2020 at the encouragement of then-Attorney General William Barr. Days after the 2020 election, when claims of a stolen election were in full swing, Barr issued a memo that loosened the Department’s longstanding restrictions on taking overt investigative steps in election fraud matters until the election is certified. The memo reportedly prompted objections by current and former Department prosecutors and led the longtime career head of the Public Integrity Section’s Election Crimes Branch to resign his position. Over the objection of career officials in the Public Integrity Section, Barr simultaneously directed federal prosecutors to investigate certain election fraud claims, including debunked allegations that Georgia election workers had secretly tabulated suitcases full of fake ballots. At the time Georgia’s elections had not yet concluded, with runoff elections scheduled a month later on January 5, 2021.
The extent of the Department’s deviation from longstanding norms during this period has never been fully examined, in part because the Department refused to divulge details of its work in response to bipartisan questioning by Senate staff, and in part because of the January 6 Select Committee’s understandable focus on Barr’s ultimate conclusion that there was no election fraud sufficient to alter the outcome of the election. Barr’s memo was withdrawn in early 2021, but the fact he issued it in the first place, and the way it enabled investigations beyond what the Department historically permitted, underscores how precarious even longstanding norms can be depending on who leads the Department.
The Purge of Career Officials
The ongoing purge of career officials should worry anyone who cares about keeping politics out of the Department and the Department out of the business of deciding elections. Since last Monday, the administration has fired, demoted, and reassigned career investigators and prosecutors across numerous Department offices and law enforcement components. Those impacted include senior leaders in the Department’s Criminal and National Security Divisions, at least a dozen career prosecutors previously assigned to Special Counsel Jack Smith’s investigations, and senior career leaders of the Department’s Executive Office for Immigration Review, among others.
The mass firing of Special Counsel Smith’s team has gotten significant attention, and deservedly so, for the message it sends to any Department employee thinking of investigating or prosecuting misconduct involving the president. But Americans should be just as alarmed by the reassignment and demotion of Associate Deputy Attorney General Bradley Weinsheimer, whose obscure-outside-the-Beltway title and low profile belie his critical role in upholding the Department’s norms. Until this week, he served as the Department’s senior-most career official. For decades and across administrations of both parties, Mr. Weinsheimer and his predecessors in that role advised Department leaders on ethics and recusal requirements and the longstanding requirements that keep politics and other improper considerations out of the Department’s work.
Equally concerning is the reassignment and subsequent resignation of Corey Amundson, the longtime career head of the Department’s Public Integrity Section. That office’s apolitical career prosecutors play an indispensable role in ensuring politically sensitive cases are handled appropriately, and that the Department doesn’t overstep its role in election-related matters. The Senate Judiciary Committee’s investigation revealed that in at least one instance, Mr. Amundson pushed to restrain the Department from inserting itself in a 2020 election-related investigation, warning that doing so “risks great damage to the Department’s reputation, including the possible appearance of being motivated by partisan concerns.”
The ousters of Mr. Weinsheimer and Mr. Amundson aren’t surprising, but they should alarm anyone who cares about the Department’s adherence to norms that uphold the rule of law. Of course, the Department’s norms aren’t just the province of high-ranking career officials—every investigator and lawyer must follow them, and the Department is filled with principled career and non-career employees at all levels who do. But the ongoing purge of the very officials responsible for policing those norms signals to the Department’s entire workforce that their jobs are at risk if they, too, prioritize rules that keep politics out of law enforcement.
In 2020, Trump tried and failed to use the Department to hold onto power. Although some Department officials strayed from certain norms, enough principled individuals took a stand when it mattered. He is now ousting the apolitical career officials responsible for ensuring the Department upholds its norms and traditions of independence. In doing so, he is laying the groundwork not only to use the Department for his own personal, political goals throughout his administration, but also to succeed in doing in the next election what he failed to do in 2020.
Editor’s note: This piece is part of the Collection: Just Security’s Coverage of the Trump Administration’s Executive Actions