How Should a DOJ Political Appointee Think About a Trump-Weaponized DOJ?
Reflections on the Ethics of Service
The Justice Department is filled with dozens of Trump political appointees—Senate-confirmed senior officials, non-confirmed deputies and special assistants, and others. I am trying to imagine how these officials are processing recent events at the Department—and how they justify to themselves continued service there.
The Siebert Matter at DOJ
“After a five-month investigation and interviews with more than a dozen witnesses,” prosecutors in the Eastern District of Virginia recently told senior Justice Department officials they lacked sufficient evidence to charge New York attorney general Letitia James with mortgage fraud. James had previously sued President Trump, his firm, and his family for civil fraud.
This decision about James reportedly represented a rebuff by U.S. Attorney Erik S. Siebert of pressure by the administration’s lawfare leaders—Ed Martin, the head of DOJ’s Weaponization Working Group, and Bill Pulte, the director of the Federal Housing Finance Agency. Attorney General Pam Bondi and Deputy Attorney General Todd Blanche, themselves staunch lawfarists, had reportedly defended Siebert’s decision. Siebert resigned on Friday after President Trump—apparently siding with Martin and Pulte—called for his firing.
Then over the weekend, President Trump posted thrice on the matter. In the first, he complained to “Pam” about inaction against James, Former FBI Director Jim Comey, and Senator Adam Schiff, claiming that “there is a GREAT CASE” and demanding that “JUSTICE MUST BE SERVED, NOW!!!” An hour later, apparently softening the earlier post that might have been intended as a private message, he praised Bondi as “doing a GREAT job as Attorney General” but said EDVA needs “a tough prosecutor,” Lindsey Halligan, “to get things moving” and deliver “JUSTICE FOR ALL!” Two hours later, Trump announced that he had appointed Halligan, a former insurance lawyer who defended Trump in the classified documents case and had been serving in the White House.
This was a remarkable rebuke of Bondi, a loyalist who pledged to “not let [Trump] down” and to “make [him] proud.” It implies that Martin—who was denied confirmation for U.S. Attorney in the District of Columbia—is driving decisions on which Trump enemies to prosecute. Martin is seemingly working in tandem with Pulte, who from his housing regulator post has rifled through the records of Trump’s adversaries and pushed claims against James, Schiff, and Fed Governor Lisa Cook. “In a sea of Trump loyalists,” Axios accurately reported, Pulte and Martin “stand out for how aggressively they've shattered norms in pursuit of the president’s enemies.”
If this politicization of the department was not bad enough, the president made clear that justice must prevail—and quickly. It is inconceivable that Halligan will not pursue charges against James.
Rationalizations
Looking at these events from a political perch in one of DOJ’s storied divisions, one might think: This has nothing to do with me. I am working hard, staying in my lane, and carrying out the department’s mission in ways I believe are just. My hands are not dirtied by the machinations of the president and his weaponizers.
Even without direct involvement, however, hands can become dirty. Political appointees are not career officials; they entered government to serve the president and the administration. They also took an oath to “support and defend the Constitution,” to “bear true faith and allegiance to the same,” and to “well and faithfully discharge the duties of” their offices. At some point, it defies this oath to serve a president who rejects the rule of law and bends the department to his abuses.
The political appointee might reply: I am doing good work, carrying out the president’s program where appropriate, and blocking mischief that will never be known. The alternative to a good person in government is a bad person there. To resign over bad things beyond my control would be more performative (and self-serving) than useful.
This is a potentially sound argument that I have defended in the past. The danger here, as elsewhere, is self-delusion. And at some point things can get so bad—some believe we are already there—that the “dirty hands” concern outweighs the benefits of staying. The choice here is highly personal and involves difficult professional tradeoffs.
Another argument for tolerating the president’s misuse of DOJ is that Article II vests “the executive Power” and the duty to “take Care that the Laws be faithfully executed” in Trump. These provisions give Trump ultimate authority to interpret the law for the executive branch and “‘exclusive authority and absolute discretion’ to decide which crimes to investigate and prosecute.” If he thinks his enemies have violated the law and deserve prosecution, DOJ must carry out his will.
This premise is right but the inference is wrong. Yes, the president controls law interpretation and DOJ’s prosecutorial discretion. But no one can pretend he is interpreting or vindicating the law. His own words show that he is driven by power and vengeance, not law. When a prosecutor “acts from malice or other base motives, he is one of the worst” forces in our society, Robert Jackson famously warned. It is much worse when the malice comes openly from the president.
And this is not an isolated episode. Trump 2.0 has been remarkably lawless, and the DOJ complicit—in non-enforcement of the law, in enforcing illegal orders, in acquiescing in presidential and presidential-ally aggrandizement, and in facilitating other abuses. The Article II truism about presidential power cannot justify continued service to a president and administration openly indifferent to law. That is an issue of personal and professional ethics and integrity.
But the political appointee might object: Trump didn’t start the weaponization. The Biden administration and the Democrats did. They crossed a fateful line in using lawfare in an effort to prevent President Biden’s political opponent, Trump, from pursuing or winning the presidency. And they engaged in other unjustified legal actions against Trump 1.0 officials. Trump is simply ordering tit for tat, and any escalation is justified to deter future bad acts by Democrats.
The premise again contains truth. One can debate the justice and prudence of the many actions against Trump and his associates by the Democratic legal complex. To me, some of it (e.g. the New York cases, including James’s, and the Georgia case) was unjustified lawfare and other bits (e.g. the January 6 prosecution, as I have previously argued) were imprudent and in some elements norm-breaking and politicized. I have not studied carefully the actions against the lower-level officials but, at a minimum, many now seem unwise.
Yet again, I do not think this justifies going along with Trump 2.0 lawfare. First, while Trump has not yet pursued former presidents criminally—he cannot easily do so because of Trump v. U.S.—his weaponization efforts, which are just getting started, are more open (and in that respect more corrosive). They also appear less grounded in law, and more based on politics and vengeance, than the Biden-era efforts. (Recall that Bondi and Blanche reportedly sided with EDVA in the most recent episode.)
More importantly: Rationalizing current lawlessness based on prior lawlessness is a poor reason for service in the Justice Department. I imagine that every political appointee in the Trump DOJ thought the Biden-era lawfare was legally and morally wrong, and bad for the country. On principle they must think that Trump 2.0 DOJ weaponization is also wrong.
Unless, that is, they have a broader instrumental justification. I have heard a few possibilities floated. First, the Democrats would (and will) do worse to the right if they had (or have) a chance. Second, as suggested above, Trump 2.0 weaponization will deter future abusive actions by Democrats. Third, Trumpian legal abuses are a one-time-only chance to destroy illegitimately secured progressive power centers—not just the deep state, but the universities and progressive law firms, the establishment media, and dominant civil society.
I get why many conservatives think in these ends-justify-means terms, even as I think some of the points are exaggerated, self-serving, and poisonous for the country. Yet as a justification for service in the Justice Department, these rationales seem weak. They are, in effect, an admission that law is a joke, that the distribution of power is all that matters, and that the DOJ and every other Trump-controlled institution should be used to elevate the power of one slice of the country and to “own the libs” as much as possible.
I doubt that many DOJ political appointees who think this way now thought this way five years ago. If they do now, they have radically reconceptualized how they view law, their careers, and the future of the nation. They have done so, I speculate, in reaction to Biden administration actions, Trump’s model, and the competitive loyalty dynamic that Trump has so effectively fostered. (This dynamic, the ambition for higher office, and the ostracization that would come from resignation in protest, make it especially hard to defy the loyalty norm.)
This reconceptualization of the aims of law will, I believe, prove self-defeating, since it increasingly vindicates Trumpian whims that do not correspond with public good. It will produce enormous collateral damage during the second Trump term. And it will likely spur not a happy equilibrium of restrained government, but a spiral of weaponization by different administrations against different enemies that the country cannot withstand.
I fear that many political appointees in DOJ embrace versions of the ends-justify-the-means rationales. If one thinks in these terms, then one is on board with what Trump is doing, and there is every reason to carry on.