The radical strategy behind Trump’s promise to ‘go after’ Biden
By Jonathan Swan, Charlie Savage and Maggie Haberman
When Donald Trump responded to his latest indictment by promising to appoint a special prosecutor if he’s reelected to “go after” President Joe Biden and his family, he signaled that a second Trump term would fully jettison the post-Watergate norm of Justice Department independence.
“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,” Trump said at his golf club in Bedminster, New Jersey, on Tuesday night after his arraignment earlier that day in Miami. “I will totally obliterate the Deep State.”
Trump’s message was that the Justice Department charged him only because he is Biden’s political opponent, so he would invert that supposed politicization. In reality, under Attorney General Merrick Garland, two Trump-appointed prosecutors are already investigating Biden’s handling of classified documents and the financial dealings of his son, Hunter Biden.
But by suggesting the current prosecutors investigating the Bidens were not “real,” Trump appeared to be promising his supporters that he would appoint an ally who would bring charges against his political enemies regardless of the facts.
The naked politics infusing Trump’s headline-generating threat underscored something significant. In his first term, Trump gradually ramped up pressure on the Justice Department, eroding its traditional independence from White House political control. He is now unabashedly saying he will throw that effort into overdrive if he returns to power.
Trump’s promise fits into a larger movement on the right to gut the FBI, overhaul a Justice Department conservatives claim has been “weaponized” against them and abandon the norm — which many Republicans view as a facade — that the department should operate independently from the president.
Two of the most important figures in this effort work at the same Washington-based organization, the Center for Renewing America: Jeffrey B. Clark and Russell T. Vought. During the Trump presidency, Vought served as director of the Office of Management and Budget. Clark, who oversaw the Justice Department’s civil and environmental divisions, was the only senior official at the department who tried to help Trump overturn the 2020 election.
Trump wanted to make Clark attorney general during his final days in office but stopped after the senior leadership of the Justice Department threatened to resign en masse. Clark is now a figure in one of the Justice Department’s investigations into Trump’s attempts to stay in power.
Clark and Vought are promoting a legal rationale that would fundamentally change the way presidents interact with the Justice Department. They argue that U.S. presidents should not keep federal law enforcement at arm’s length but instead should treat the Justice Department no differently than any other Cabinet agency. They are condemning Biden and Democrats for what they claim is the politicization of the justice system, but at the same time pushing an intellectual framework that a future Republican president might use to justify directing individual law enforcement investigations.
Clark, who is a favorite of Trump’s and is likely to be in contention for a senior Justice Department position if Trump returns to the presidency, wrote a constitutional analysis, titled “The U.S. Justice Department is not independent,” that will most likely serve as a blueprint for a second Trump administration.
Like other conservatives, Clark adheres to the so-called unitary executive theory, which holds that the president of the United States has the power to directly control the entire federal bureaucracy and Congress cannot fracture that control by giving some officials independent decision-making authority.
There are debates among conservatives about how far to push that doctrine — and whether some agencies should be allowed to operate independently — but Clark takes a maximalist view. Trump does too, although he’s never been caught reading the Federalist Papers.
In statements to The New York Times, both Clark and Vought leaned into their battle against the Justice Department, with Clark framing it as a fight over the survival of America itself.
“Biden and DOJ are baying for Trump’s blood so they can put fear into America,” Clark wrote in his statement. “The Constitution and our Article IV ‘Republican Form of Government’ cannot survive like this.”
Vought wrote in his statement that the Justice Department was “ground zero for the weaponization of the government against the American people.” He added, “Conservatives are waking up to the fact that federal law enforcement is weaponized against them and as a result are embracing paradigm-shifting policies to reverse that trend.”
The most powerful conservative think tanks are working on plans that would go far beyond “reforming” the FBI, even though its Senate-confirmed directors in the modern era have all been Republicans. They want to rip it up and start again.
“The FBI has become a political weapon for the ruling elite rather than an impartial, law-enforcement agency,” said Kevin D. Roberts, president of the Heritage Foundation, a mainstay of the conservative movement since the Reagan years. He added, “Small-ball reforms that increase accountability within the FBI fail to meet the moment. The FBI must be rebuilt from the ground up — reforming it in its current state is impossible.”