With high-profile political prosecutions and deepening polarization dividing the country, legal experts and former Justice Department officials told NBC News they fear the United States has entered a destructive cycle in which presidents prosecute their rivals as a form of revenge.
The experts point to a series of developments over the past several years as factors driving their warning. They include the multiple criminal cases brought against Donald Trump after the 2020 election, the federal indictment of former FBI Director James Comey after Trump publicly demanded it and increasing public distrust of the Justice Department.
“What we don’t want to become the norm is where people think, ‘OK, there’s a new administration, now everyone in the old administration gets prosecuted,’” said Berit Berger, a former federal prosecutor in New York. “That’s an incredibly dangerous cycle where nobody wins.”
A recent Pew public opinion poll suggests that Americans view the Justice Department in increasingly partisan terms. Since Trump returned to office, the percentage of Republicans who viewed the Justice Department favorably soared by 18 points, from 33% to 51%, the survey found. Favorable views of the Justice Department among Democrats, at the same time, plunged from 56% to 28%.
Carissa Byrne Hessick, a University of North Carolina Law School professor who studies the intersection of prosecutions and politics in the United States, said the investigations and prosecutions of multiple senior officials during the Biden and second Trump administrations has caused Americans to suspect the investigations are driven by politics.
“I think this has probably convinced the average American that these decisions are political,” Hessick said. “And that’s bad for the country, and that’s bad for the legitimacy of the criminal justice system.”
Hessick said reforms enacted after Watergate to bolster public confidence in the impartiality of prosecutions are proving dated and ineffective.
After Watergate, special counsels were appointed to investigate potential crimes by presidents and their aides to prevent the abuses of the Nixon-era Justice Department, which targeted the president’s enemies for criminal investigation. And FBI directors were appointed to 10-year terms to maintain independence from presidents and avoid the illegal surveillance of politicians and political groups like those during the term of the late Director J. Edgar Hoover.
But over time, as partisan divisions have intensified, trust in the impartiality of investigations by special counsels and other prosecutors has been undermined.
“Our old tools for trying to create the appearance of neutral and detached nonpartisan decision-making by prosecutors don’t seem to be working,” Hessick said. “The way people talk about prosecutions is so polarized that it’s probably not surprising that people think the whiff of politics is involved in every prosecution.”
Competing prosecutions
Trump and his fellow Republicans have argued for years that Democrats systematically used prosecutions to try to politically damage him. Federal prosecutors and state and local officials in New York, Washington, D.C., Florida and Georgia brought charges against Trump alleging such offenses as election subversion, failing to return classified documents and paying hush money during the 2016 campaign to cover up a previous extramarital affair.
Trump denied all of the charges. A New York jury convicted him of falsifying business records in the hush money case. A Trump-appointed judge threw out indictments by special counsel Jack Smith alleging mishandling of classified documents in Florida, and Trump’s election subversion case was withdrawn after he won re-election. A state election subversion case filed by the Fulton County, Georgia, district attorney is pending.
Last month, a federal grand jury in the Eastern District of Virginia indicted Comey on two charges: making a false statement and obstruction of a congressional proceeding. Comey is accused of lying at a 2020 Senate hearing when he testified that he had not authorized a third party to speak anonymously to the media about an FBI investigation. Comey pleaded not guilty at his arraignment Wednesday.
A senior Justice Department official has told NBC News that career prosecutors had concluded that probable cause did not exist to secure an indictment. Trump then pressured the acting head of the U.S. attorney’s office to resign and replaced him with Lindsey Halligan, one of his personal lawyers. Halligan, who has no prosecutorial experience, presented the case against Comey to a grand jury by herself, which is highly unusual.
Neil Siegel, a Texas A&M University law professor, said, “It seems obvious to me that the Comey case is politically motivated.”
He said the two federal prosecutions of Trump — for trying to reverse the outcome of the 2020 election and for retaining and hiding highly classified documents — were far more serious.
“Those two federal cases against Trump were serious and involved allegations of some of the most grave misconduct imaginable in a constitutional democracy,” he said. “A sitting president likely violated federal criminal laws in order to undo the results of a free and fair election to maintain himself in office.”
Siegel added, “It can’t be the case that a president tries to steal an election and there are no legal consequences.”
But Trump won re-election by a wider margin in 2024 than he won by in 2016, suggesting he effectively discredited the prosecutors who investigated him in the eyes of a majority of voters.
Supreme Court decision
The legal experts point to a Supreme Court decision last year as a key factor that they believe has emboldened Trump and could spur future presidents to target their political enemies.
It said the president has “exclusive authority over the investigative and prosecutorial functions of the Justice Department and its officials.” It also endorsed a far-reaching version of a conservative legal theory — known as the unitary executive theory — that classified Trump’s supervision of the Justice Department as one of the official duties for which presidents enjoy absolute immunity.
Peter Shane, a New York University law professor, argued that, as a result, current and future presidents’ handling of prosecutions, “no matter how corrupt,” is beyond the control of Congress and the judiciary, weakening the power of two branches of government long said to be coequal.
“Trump’s brazenness has effectively been licensed” by the court under Chief Justice John Roberts, Shane said, referring to the prosecution of Comey and investigations of multiple other rivals since Trump returned to office in January. “Having written for many years about the potential for unitary executive theory to turn to corrupt authoritarianism, I no longer need hypotheticals to prove the point.”
Barry McDonald, a Pepperdine University Law School professor, said the Supreme Court could revisit its immunity ruling and revise it if a president engages in clearly criminal conduct.
“If we came to the point where the court’s ruling seemed to be facilitating certain criminal behaviors by presidents, if the court had the will to ‘fix’ the problem, I don’t think anything would prevent them from walking back problematic aspects of the decision,” McDonald said. “We’ve seen the court walking back problematic rulings before.”
Berger, the former federal prosecutor in New York, argued that prosecutors can increase public trust in their work by being transparent about what guardrails they have to protect prosecutorial decisions from political influence. She also said Justice Department officials need to make it clear that prosecutors will not be targeted if political leaders disagree with their decisions.
“The way you rebuild trust in the Justice Department is neutrality and transparency,” she said. “There were a lot of guardrails put in post-Watergate, and I worry that we will need to do a lot of work to rebuild them.”