In 1973, the Nation’s capital was embroiled with scandal regarding President Richard Nixon’s corruption schemes.[1] Nixon famously kept an enemies list, directed wiretapping of political enemies, and orchestrated break-ins to multiple enemies’ offices looking for incriminating evidence.[2] Nixon resigned in shame before Congress could officially impeach him; he was caught trying to, in the words of Nixon’s White House counsel, “‘use the available federal machinery to screw our political enemies.’”[3] On March 14, 2025, President Trump declared himself the “‘chief law enforcement officer in our country’—a title traditionally used to refer to the attorney general.”[4] Most alarmingly, Trump called for retribution against his perceived political enemies, particularly those in President Biden’s Department of Justice who okayed the FBI search at Trump’s Florida Mar-a-Lago estate.[5]

Now, Trump’s DOJ is hard at work subjecting Trump’s past foes and critics, including James Comey, Letitia James, and John Bolton, to criminal indictments.[6] Trump publicly directed his Attorney General, Pam Bondi, to investigate his enemies and bring charges against them as retribution for past investigations into him.[7] However, the structure of DOJ, with career U.S. Attorneys staffing district offices around the country, have made Trump’s demands more difficult. When federal prosecutors resisted, Trump replaced him with his personal lawyer, Lindsey Halligan, who has never tried a criminal case.[8] Setting aside political and ethical consternations, the question arises: is this action legal? The answer is no, not only because it violates established norms between the President and Main Justice post-Watergate, but also because it contravenes constitutional violations of executive power.

The idea that the White House should not interfere with the DOJ is a widely accepted constitutional norm. Since Nixon, major reforms, such as “contacts policies” or “contact memos”, which require all communications between the White House and DOJ about specific cases to be well-documented—have become deeply rooted in the public’s understanding of just and transparent federal government.[9] Representative Thomas Jenckes, who introduced the bill creating DOJ in 1870, stated “‘The humblest servant of the Government should not be at the mercy or the caprice of the most distinguished politician. Let every man who may receive a commission from the United States know that he holds it from the people, in service of the people.’”[10] This concept of separation between the President and Attorney General has remained central to the nation’s understanding of prosecutorial independence.

Trump may declare himself the nation’s “chief law enforcement officer,” but Congress and the Courts have both recognized that the President’s executive power does not empower him to interfere with DOJ investigations or prosecutorial decision-making. In the Communications Decency Act, Congress granted civil immunity to internet providers for third-party content but not criminal immunity, thereby presuming that criminal laws would be enforced without political interference.[11] Also, the Federal Rules of Criminal Procedure prohibit anyone from disclosing grand jury matters with government officials except for those who would assist the attorney in exceptional circumstances.[12] Likewise, the Supreme Court has crafted the judicial doctrine of “presumption of regularity” to review prosecutors’ charging decisions based in part on “‘. . . an assessment of the relative competence of prosecutors and courts.’”[13] Although Presidents do have the constitutional executive power to set directives for Main Justice, directing federal prosecutors to target individual people is different: this allows personal animus to form bases for politically motivated weaponization of the criminal law. Despite popular notions, the Presidency continues to have constitutional and legal constraints.

Numerous constitutional and legal constraints prohibit arbitrary and retaliatory prosecutions, such as the Due Process Clause’s guarantee of fundamental fairness, the Equal Protection Clause’s prohibition against differential treatment under the law because of protected characteristics, and the First Amendment’s protections for expressive and associational freedoms.[14] The Due Process Clause requires a prosecutor remain disinterested and free from personal or financial interests that could raise serious constitutional questions or compromise the fairness of proceedings.[15] The clause also protects against unjustified prosecutions, which includes the illegal exercise of government power and political retaliation as prosecutorial motive.[16] Congress has taken these prosecutorial responsibilities seriously, as it has previously disqualified prosecutors and DOJ employees from participating in investigations and prosecutions.[17]

Along with the Due Process Clause, the Equal Protection Clause prohibits prosecutions against individuals singled out for their protected right of political association and speech. [18] Equal protection requires that the laws of the United States be enforced neutrally and objectively without prejudice.[19] Equal protection doctrine has become normalized by the American people for many reasons, not the least of which is that we cherish our freedom and independence from government interference. Just as Americans enjoy freedom, we also enjoy speech and associational protections. The Supreme Court has “. . . made clear, ‘the law is settled that as a general matter the First Amendment prohibits government officials from subjecting an individual to retaliatory actions, including criminal prosecutions, for speaking out.’”[20] Criminal charges for protected speech can cause rippling effects across the nation, chill dissenting speech, and instill fear of expressing disapproval toward the government. First Amendment rights are some of the most foundational principles our nation was built upon. The Bill of Rights protects private citizens from a tyrannical government, and we as Americans have always held it sacred.

“We the People” have a major stake in what our federal government does. In the social contract forged between citizen and government, we have sacrificed some freedoms in exchange for liberties and protections promised by federal government. A majority of Americans, including three in ten Republicans, believe that Trump is abusing his executive power to prosecute his enemies.[21] Trump weaponizing the DOJ against his political enemies is a bipartisan issue that threatens the rule of law for all Americans, especially those Americans who bravely and legally speak truth to power. Currently, Comey and James have plead not guilty to their respective charges and are both challenging the appointment of Lindsey Halligan.[22] All three Trump critics-turned criminal defendants have resources to fight in both a court of law and the court of public opinion; however, lower officials and private citizens may not be so fortunate to contend potential criminal indictments. Such realization reveals the troubling reality that Trump has imposed on our country since assuming office and weaponizing the rule of law.

Nixon’s corruption was exposed over years of investigation and testimony. Trump’s actions are in clear view in the media. Nixon was run out of Washington, D.C., by both Republicans and Democrats. Is it time for our elected officials to do the same?