Early in his second term, US President Donald Trump appointed an ally to lead a ‘Weaponization Working Group’ at the Department of Justice (DoJ), tasked with scrutinising law enforcement officials who had previously investigated him. His pick was Ed Martin, a former Missouri party chair who had promoted Trump’s false claims that the 2020 election was stolen and defended rioters who stormed the US Capitol.

Since being back in office, President Trump has demanded that the DoJ prosecute those who have opposed him. Martin promised to charge Trump’s political enemies with crimes wherever possible and said he would ‘name’ and ‘shame’ those who couldn’t be charged.

By September, no prosecutions had materialised. An irate Trump posted a message to Attorney General Pam Bondi, the nation’s top law enforcement official. ‘They’re all guilty as hell, but nothing is being done,’ he said in a social media post. Aides insisted President Trump intended the message to be private. Instead, the public post has become ‘exhibit A’ in accusations that Trump is undermining the DoJ’s independence.

‘Political leaders of all stripes should refrain from interference with prosecutorial decisions, since such can be seen to question the integrity of the institutions charged with enforcing the rule of law,’ says Steven Richman, Chair of the IBA Bar Issues Commission, who speaks in a personal capacity. ‘Appearance matters. When a prosecution is independently evaluated and warranted, it should proceed without political commentary that can taint it.’

More politically-charged inquiries are under way. Critics see a widening pattern of President Trump using the DoJ to punish perceived adversaries. Since the post-Watergate reforms of the 1970s, US norms and policies have generally insulated prosecutors from political pressures.

‘When Trump is tweeting, or posting on X, directions and demands to the attorney general that certain people be indicted because they’re guilty as hell, that is a blatant, in-your-face violation of the limit on communications between the White House and the Justice Department,’ says Barbara McQuade, a former US Attorney who’s now a professor at the University of Michigan Law School. ‘The list of people that Trump includes are clearly political enemies. He said so himself, that these are people who weaponised the Justice Department. He got indicted, and now it’s payback time. That’s not how it’s supposed to work,’ McQuade says.

During his 2024 re-election campaign, Trump vowed to use federal law enforcement for retaliation, declaring that officials in the administration of President Joe Biden involved in the Mar-a-Lago and 6 January investigations against him should be ‘investigated and put in prison’. He has since expanded political investigations, appointing Alina Habba – a lawyer from his hush-money case defence team – as US attorney in New Jersey. She announced inquiries into New Jersey’s governor and other officials for allegedly obstructing Trump’s mass arrests and deportations of migrants. State officials have publicly defended New Jersey’s policy, put in place during President Trump’s first term, under which police will only get involved in an immigration matter when there’s a criminal warrant issued.

Meanwhile, many Americans, especially those identifying as Republicans, viewed the prosecutions of Trump under the Biden administration as politically motivated. In 2023, a plurality of 47 per cent of respondents in an ABC News/Ipsos survey viewed the Mar-a-Lago secret documents case against Trump as politically motivated even as most assessed the charges as serious. ‘At some point, political leaders will have to break the cycle of weaponising the justice system and view it more systemically, and not along party lines. Those who need to be held accountable are entitled to due process, but extraneous commentary affects belief in the integrity of the system,’ Richman says.

One important difference between the charges brought by the DoJ under Bondi is that Biden’s Attorney General Merrick Garland appointed a special counsel, Jack Smith, whose office and authority were designed to be insulated from politics. President Trump’s team has not used those regulations, which place the primary decision on whether or not to bring charges in the hands of the prosecutor.

The DoJ has threatened investigations of leaders at top US universities over diversity, equity and inclusion initiatives, which President Trump claims violated civil rights laws. In April, the DoJ dropped corruption charges against New York City Mayor Eric Adams in what the judge dismissing the case said ‘smacks of a bargain’ on immigration enforcement. The DoJ argued the case was a distraction for the Mayor Adams denied wrongdoing in the matter.

In November, President Trump publicly directed the DoJ and FBI to investigate possible ties between sex trafficker Jeffrey Epstein and several prominent Democrats. None of those named were accused of wrongdoing as part of the case against Epstein.

More than 100 prosecutors and career lawyers have resigned from the DoJ since President Trump returned to office – an exodus far exceeding normal turnover between administrations. Many cited political interference, pressure to drop cases involving Trump’s allies and threats of retaliation for refusing unethical orders, according to a New York Times investigation.

President Trump’s use of federal law enforcement powers against political opponents represents a direct assault on the non-political administration of justice, says Richard Painter, a former White House ethics counsel and a professor of law at the University of Minnesota. Without prosecutorial independence, Painter warns, ‘a representative democracy risks descending into a system where political enemies are punished and allies protected. This is the type of thing that happens in Putin’s Russia.’

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