Asked Sunday on “Meet the Press” whether President Donald Trump should have a voice in individual federal prosecutions, Attorney General Todd Blanche answered, “Yes, of course.”
The issue isn’t (merely) that Blanche, a former personal attorney to Trump, would publicly compromise the Justice Department’s traditional independence. We already know from the president’s statements and social media posts that Trump has demanded investigations and prosecutions of James Comey, Letitia James and other perceived enemies.
We should be focusing on what happens when the president wants someone prosecuted and the attorney general agrees but the prosecutors who review the evidence think charges should not be brought.
What we should be focusing on is what happens when the president wants someone prosecuted and the attorney general agrees but the prosecutors who review the evidence think charges should not be brought. This is not an abstract question. Several times in Trump’s second term, lawyers close to the evidence have said no. Often, the Justice Department’s response has been to ask somebody else.
Former FBI Director Comey is probably the best-known recent example. Trump publicly called many times for Comey’s prosecution. U.S. Attorney Erik Siebert of the Eastern District of Virginia concluded that there was insufficient evidence to file charges. Siebert resigned last September hours after Trump declared that he wanted Siebert out. Trump then replaced him with Lindsey Halligan, another attorney who had been Trump’s personal lawyer. Halligan obtained an indictment of Comey. A judge later dismissed the case because Halligan had been unlawfully appointed. So the Justice Department, not finding willing prosecutors in the Eastern District of Virginia, went to North Carolina and charged Comey again, this time over his “86 47” seashell photograph.
Efforts against James, the New York attorney general, followed an even more remarkable course. Prosecutors in Virginia resisted bringing the mortgage fraud case Trump had publicly pressed the Justice Department to pursue. Here, too, Halligan obtained an indictment after taking over the Eastern District, and a judge dismissed it because of Halligan’s unlawful appointment. The Justice Department tried again to indict James. A federal grand jury in Norfolk, where the property at issue was located, refused. Prosecutors then went to a grand jury in Alexandria, another division of the same federal district. It refused, too.
There’s a reason people joke about grand juries being willing to indict a ham sandwich. Grand juries hear only the government’s presentation, and prosecutors need to establish only probable cause. Yet two separate grand juries declined to give federal prosecutors the indictment the president had publicly demanded.
And they weren’t the only grand juries to reject indictment requests. Last November, six Democratic members of Congress who had previously served in the military released a video telling military personnel, “You can refuse illegal orders.” Trump accused the lawmakers of committing “seditious behavior” and said such conduct was “punishable by death.” Federal prosecutors sought an indictment. A federal grand jury in Washington, D.C., refused.
In another high-profile case, federal prosecutors got further. After the administration wrongly deported Kilmar Abrego Garcia and he fought successfully to return, Justice Department lawyers revived a human-smuggling investigation based on a 2022 traffic stop and filed charges to prosecute him. A federal judge dismissed the case on grounds of presumptive vindictiveness, using unusually stark language: “The evidence before this Court sadly reflects an abuse of prosecuting power.” The Justice Department has appealed.
And then there are the Reflecting Pool prosecutions. The most high-profile charges alleging damage to the renovations were against David Hearn, a former U.S. Olympic canoeist. Although U.S. Attorney Jeanine Pirro said at the time of charging that “the evidence shows, and we will prove beyond a reasonable doubt, that Hearn willfully destroyed property,” prosecutors later said they obtained records indicating that problems with the renovation itself, rather than vandalism, caused the widespread damage. Pirro’s office dropped the case. Trump objected, in comments on social media and to reporters, and the White House subsequently asked the Justice Department to bring another charge.
The common thread in these examples is the president supporting a prosecution and people closer to the evidence saying no. The weakness in a case does not disappear because someone higher up wants a different answer. It simply moves downstream if the government pursues another route to “yes”: from prosecutor to grand jury to judge. The system has ended up recreating the prosecutorial restraint that should have existed at the start.
The system has ended up recreating the prosecutorial restraint that should have existed at the start. But there is no guarantee that restraint will always be recreated downstream.
But there is no guarantee that restraint will always be recreated downstream. If political pressure becomes a routine part of the charging process, prosecutors, grand jurors and judges may gradually come to experience that pressure not as an aberration but as ordinary context in which charging decisions are made. Over time, that could present its own danger to the justice system.
Prosecutors work in a hierarchy. Assistant U.S. attorneys cannot disregard supervisors when they disagree about a case, and reasonable prosecutors can look at the same evidence and reach different conclusions. Disagreements happen. Deciding not to prosecute is not a failure of prosecution.
Ultimately, prosecutors do not merely ask whether they can construct a charge. They have ethical obligations when deciding whether the government should bring a case. Someone must review the evidence, assess the witnesses and be prepared to stand in federal court representing the U.S.
Blanche’s position puts new pressure on that judgment, which is one of the protections against misuse of the criminal law. If prosecutors lose the practical ability to say that a case should not be brought, the system has to find that restraint somewhere else.
That is a reason to worry even when the system has held so far. Each time restraint is forced downstream, the burden shifts to institutions that should have been backstops, not substitutes for prosecutorial judgment. Repeated pressure increases the risk that, eventually, one of those safeguards will fail.
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