exhibit a

The Sequel Will Be Worse

Trump’s former Justice Department officials fear a second term.

Photo-Illustration: Intelligencer; Photos: Getty Images
Photo-Illustration: Intelligencer; Photos: Getty Images
Photo-Illustration: Intelligencer; Photos: Getty Images

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Donald Trump wasted no time after his federal indictment demanding both his reelection and an aggressive campaign of retaliatory prosecutions. “I will appoint a real special prosecutor to go after the most corrupt president in the history of the United States of America, Joe Biden, and the entire Biden crime family,” along with everyone else “involved with the destruction of our elections, our borders, and our country itself,” Trump told the crowd assembled at his Bedminster golf club just hours after his arraignment.

“On November 5th, 2024,” he warned, “justice will be done.”

These comments may not have been surprising to Trump’s critics, but even some members who served in his Justice Department are concerned about the prospect of a second term, as I learned in a series of recent conversations with several former senior officials from that period. “I would not want to be attorney general under Donald Trump,” said one person who, under normal circumstances, would plausibly be in contention to be the nation’s top law-enforcement official after serving in a high-ranking role as a political appointee the first time around. 

The group I spoke with included Senate-confirmed officials at the highest levels of the Trump Justice Department, including appointees who were involved in some of the most controversial matters, both criminal and civil in nature. These are not crypto-liberals. To varying degrees, they all broadly disagreed with the way they and their colleagues were portrayed in the media — including at times by me — but they agreed to talk on condition of anonymity in order to speak candidly about their views on the prospect of Trump’s return to power, including who might staff the department and what its priorities would likely be. Their most pressing concern was that Trump would follow through on his threats to target his political enemies — and that he could be much more effective next time.

“During the first administration, the president talked a lot about pursuing political enemies. He spoke about it during the campaign, he spoke about it while he was president, but the Justice Department did not act on it,” the former senior official told me. This may seem counterintuitive, but there is something to it. Under Trump, the Justice Department conducted criminal investigations of his 2016 rival Hillary Clinton; former secretary of State John Kerry, whom Trump publicly blamed for the 2015 Iran nuclear deal; his onetime national security adviser John Bolton, who had written a scathing tell-all book after leaving the White House in 2019; and former acting FBI director Andrew McCabe, who had apparently committed the cardinal sin of accurately recalling Trump’s efforts to close the Trump-Russia investigation. None of these investigations resulted in charges, though there were reports that the McCabe investigation reached a very advanced stage. “My concern is in a second term,” the person continued, “I think the president would be very focused on finding people who would act on his desire to retaliate against political opponents.” The concern echoed that of Geoffrey Berman, who served as Trump’s U.S. Attorney in Manhattan until 2020 and told me bluntly last year, “The prospect of a second Trump administration frightens me.”

Against this backdrop, Trump’s threat to prosecute President Biden deserves serious attention. Ever since Biden’s election, conservative politicians and media figures have portrayed him and his family as self-evidently corrupt, and a probe by House Republicans that began this year continues apace. Thus far, the baroque theory that they have spun up — some sort of criminal foreign corruption scheme involving Hunter Biden’s overseas work — has remained unsubstantiated, held together by aggressive rhetoric and various scraps of information that they have not managed to pull together into anything approximating a coherent theory, let alone an actual alleged criminal scheme.

All Trump would need to do is find someone in his Justice Department — his attorney general or perhaps the head of the criminal division — who would accede to his demand for a Biden investigation, which could be conducted either by a hand-picked prosecutor in the department or a special counsel recruited from outside and appointed by the attorney general. A prosecutor could easily spend years trawling through the Biden family’s business dealings. And even if Biden were never actually charged, a criminal investigation along these lines would be incredibly burdensome both psychologically and financially, at the same time potentially chilling other figures who dare to oppose Trump.

Needless to say, the question of who would lead the Justice Department in a second Trump term looms large. One name that has already reportedly emerged as a favorite is Jeffrey Clark, who, in the waning days of the last administration, tried and failed to become the acting attorney general so that he could get the department to back the false claims of voter fraud that Trump tried to use to remain in power. Before that, he led the department’s environmental division.  More recently, he has been talking about his own book by arguing that the president is legally free to direct the Justice Department to do whatever he wants, including, presumably, instructing officials to dismiss any prosecutions and close any investigations into potential co-conspirators that might include one Jeffrey Clark. (Clark did not respond to multiple interview requests, though in his defense, I once described him as a “malignant buffoon.”)

Clark is right that the department is technically not an independent agency like, say, the Federal Reserve, and that the practice of insulating decision-making from White House input on discreet matters is one of many post-Watergate norms that have broadly held across different administrations. But as the senior former official put it to me, the president may have “a First Amendment right to say what he believes, but it is unlawful for the department to act on those political demands because it would be a violation of equal protection if we were to prosecute people because of their political affiliation, or initiate investigations because of their political affiliation.” Another former Trump DOJ official, contemplating the prospect of working under an even less restrained Trump in a second term, put it more starkly: “The first tweet about prosecuting someone — you have to quit, because then if we do prosecute the person, it’s going to look like you did it for Trump even if it was on the merits.”

I asked the same person — who left the administration without incurring the sort of public rebuke from Trump that others received on their way out — if they would return if Trump is reelected. The former official was exceedingly wary, citing in particular Trump’s increasing penchant for publicly demanding that his political adversaries be prosecuted. “You need to make clear that you’d resign immediately if that started happening again, because even doing that once — even if it doesn’t affect your decision — gives the appearance that it affected you, which harms faith in the Justice Department.”

“It’s going to be tough,” they continued, “because he’s probably not going to make those guarantees to people, so I don’t think people are going to want to join.”

Others I spoke with expressed similar concerns, though the view was not universal. Another former official who is now in private practice told me pointedly that they believed that the claims of improper interference in the department’s work by Trump had been blown out of proportion by the media, and that their portfolio — which included high-profile matters that drew significant public scrutiny for precisely this reason — had not been improperly influenced in any way by Trump or his White House officials. This former official told me that their interest in returning to the Justice Department if Trump is reelected would depend in part on who the attorney general is, but they also added that personal financial considerations would also play a role, such as a much lower government salary, along with concerns about post-government job prospects after a second stint working under Trump.

However you judge the quality of Trump’s first Justice Department, it is clear that some senior officials from this period are concerned about the prospect of a material degradation in the professionalism, experience, and ethical comportment of the people who would run the department in a second term.

“I know your political perspective so it’s a little risky for me to say this,” one former senior official told me, “but if you look at the folks we appointed, I think, objectively, they were rule-of-law conservatives — what Trump would refer to as ‘Establishment Republicans’ — and people who share the same philosophy as the folks who ran the department in the [George W.] Bush administration.” (Agree to disagree, etc.) This former official worried that Trump would make a concerted effort to try to appoint people that he believes would be more pliable than his earlier appointees.

The same person went on to identify a subtler but equally important concern — that Trump had learned during his presidency that he has a great deal of power to impose his will by firing his political appointees in the department. They contemplated a scenario in which he might be on the receiving end of a plainly improper request from Trump: “He can’t order me to do it, but he can fire me for failing to do it. And there’s no remedy for that,” they explained. “My fear is in a second Trump administration, he would keep firing people until he found people who were willing to act on his requests. And ultimately, eventually, he’ll be able to find people like that, and I think he did. He was surrounded by people like that at the end of the first administration” such as Clark.

More worrisome still, the former senior official observed that Trump had “figured out at the end of [his] term that he doesn’t need to get people confirmed.” “He can just draw people in, like he did with Matt Whitaker in between [Jeff] Sessions and [Bill] Barr,” this person explained, recalling Whitaker’s installation as acting attorney general for several months. “That gives him tremendous discretion in terms of who he puts in those positions, if he doesn’t even require Senate confirmation.”

Then there are the people who directly work for the Senate-confirmed appointees who do not need to be confirmed. During the Trump years, this group included some grossly inexperienced and dubiously qualified lawyers. There was, for instance, Brian Rabbitt, who worked with Barr to prepare the misleading public summary of the Mueller Report and helped insulate him from public questions about his controversial interventions in the prosecutions of Trump associates Roger Stone and Michael Flynn. He had not previously worked in the department, but by the end of the administration he was the acting head of the criminal division. There was Bill Hughes, who came over from the White House in 2019 and was somehow tasked with overseeing the department’s pandemic-related criminal investigations even though his only prior experience in the department was a summer internship more than a decade earlier. Still another guy named Patrick Hovakimian — they were pretty much all guys — at least had some experience as a prosecutor before becoming a senior official in the deputy attorney general’s office, whereupon he reportedly participated in a whistleblower-retaliation effort.

In the final weeks of the Trump administration, I derisively referred to the remnants of this group as “the Barr Bros,” but I was not the only person who recognized the phenomenon. I later learned that the piece had circulated among some senior Trump appointees at the time who shared the view that Barr, in particular, had seemed to deliberately surround himself with pliant and underqualified lackeys who would be practically incapable of second-guessing any of his decisions — whether as a function of their own ignorance of the relevant law, their career ambitions in the conservative legal firmament, or both.

If a second Trump term comes to pass, we are likely to have another public debate about whether conscientious lawyers should serve in the administration, but everyone I spoke with argued that it would be much worse for good lawyers to voluntarily abstain. I asked one relatively young political appointee how he would advise a colleague or mentee to respond to an overture to serve in a second Trump term. He offered a tentative response: “If it was a relatively low-ranking thing, like deputy [attorney general] for consumer protection, I’d say go for it, because it’s very unlikely you’re going to have political interference in that role. It’s better for good people to serve in any administration, because someone’s going to do those jobs, and it’s better for people with integrity and competence to do them.”

Other former Trump DOJ officials offered slight variations. One highly experienced political appointee told me that it was the best job that they had ever had as a lawyer and suggested that they would gladly encourage other lawyers to serve in a second Trump term. Another former official explicitly recognized that this could be a challenging decision because although “working in prominent positions in DOJ” is usually “career-enhancing” in the legal profession, “that won’t necessarily be the case in the Trump administration.” The “odds are that you’re going to wind up making a lot of enemies, but I’m still going to encourage people to do it,” this person added. “If responsible people aren’t willing to take the jobs, other people will.”

There is, however, an inherent and undeniable tension between the notion that it would be defensible to serve in a high-ranking position and the notion that another term would present an even more dangerous version of Trump, exerting even even more pressure on appointees to railroad his political enemies. Is it truly defensible to serve such a man? To some skeptics, the construct offered by some of the former senior officials I spoke with might seem to present an unintended air of self-rationalization: After all, some very awful things happened during the first Trump administration — along with all of the criminal investigations into Trump’s political adversaries — but there were no public resignations in protest. More likely, I suspect that you could end up doing your best to minimize the damage and perhaps steer things the right way, while ending up, on some level, being personally tarnished if your efforts fail.

As for the substantive agenda in a second Trump Justice Department, the former officials I spoke with predicted that it would likely be more of the same from the first time around, for better or worse. That would mean relatively more emphasis on violent crime and drugs than the Biden administration, even less emphasis on white-collar crime, a shift away from civil-rights enforcement, and a renewed emphasis on prosecuting illegal immigration. On that front in particular, Trump has already indicated that he would reinstate the morally and ethically grotesque family-separation policy that he and his first attorney general, the notorious anti-immigration creep Jeff Sessions, implemented before widespread public outrage prompted a reversal.

It is tempting to think that career Justice Department lawyers tasked with implementing the policy along the southern border would put up a fight, but that did not happen the first time around, and thanks to Garland’s unfortunate decision to forgo even low-level retrospective accountability measures after he took office, the lesson could not be clearer for the department’s rank and file: If you do what you are told — no matter how repugnant the orders may be on their face, no matter how outraged the American public is in response, no matter what kind of concrete and irreversible human suffering you might inflict in the process — you will not incur any career repercussions. It is a recipe for disaster of the highest order if Trump is reelected, but next time around, if it comes to pass, Biden, Garland, and Democratic leaders in Congress — who once promised a congressional investigation that never materialized — will share partial responsibility.

In the immediate aftermath of the Trump administration, there was a brief window for an ambitious and potentially durable reform effort, but members of the Democratic legal Establishment — including some of the same people who came to prominence criticizing the Trump Justice Department and some of the same people who went on to serve in the Garland Justice Department — instead advocated for middling, short-term, and largely meaningless changes to how the department operates as a structural matter. The bill for this complacency will likely come due at some point in the future, whether it is during a second Trump term or some future administration whose cruelties we can only begin to contemplate.

Needless to say, there are limits to this line of thinking: The responsibility for any such future improprieties would rest first and foremost with the people who actually carry them out. Trump, however, is telling us — loudly — that he intends to turn the Justice Department against the broad assortment of people that he chooses to identify as his enemies and as inchoate threats to his dark vision for the future of our country. Take him seriously and literally.

Trump’s Ex-Justice Department Officials Fear a Second Term