The Coming Trump Revenge Tour

In the most volatile presidential campaign of the last 50 years, one thing has remained remarkably constant: Donald Trump’s stated intention to prosecute a wide swath of his opponents if he wins the White House.

The list of targets has been growing for years. It includes an array of Trump’s political and legal antagonists — real or perceived — ranging from President Joe Biden and Rep. Nancy Pelosi (D-Calif.) to Anthony Fauci, the members of the Jan. 6 committee and Manhattan District Attorney Alvin Bragg. Just a few weeks ago, Trump put hundreds — maybe thousands — more of his political opponents in his prosecutorial crosshairs by threatening unnamed Democratic lawyers, political operatives, donors, voters and election officials.

Trump has talked about his plan for a prosecutorial revenge tour in public speeches , press interviews and a litany of social media posts . It is subtly embedded in the official Republican Party platform , which proposes to “hold accountable those who have misused the power of Government to unjustly prosecute their Political Opponents.”

Of course, Trump promises many things that never come to fruition. Some prominent Trump allies and ardent supporters dismiss his comments — or perhaps just rationalize them — as political rhetoric. “He ran on, ‘I’m gonna lock her up’ with Hillary, and didn’t do shit,” says Mike Davis, a hard-line Republican lawyer who frequently appears in the media criticizing the prosecutors who have brought criminal cases against Trump.

“I would love to be a special counsel or a viceroy and exact painful retribution on all these motherfuckers, because I think retribution is a key part of justice,” he told me, “but it’s just not possible” given the bureaucratic and procedural obstacles that would arise. (As for his own public comments listing assorted targets of a second Trump Justice Department, Davis explained, “Obviously I’m trolling, but I’m doing it to make a point.”)

But Trump’s political opponents — and some of the country’s most experienced federal law enforcement officials — are taking the matter gravely seriously.

“All you have to do is listen to the former president himself,” a former top Justice Department official, who was granted anonymity to discuss Trump’s interest in prosecuting his legal and political adversaries, recently told me. “He has come right out and said that’s what he wants to do, and he was obviously very frustrated during the last administration, when he wasn’t able to have as much influence in that area as he wanted.”

Andrew McCabe, the former acting FBI director during the Trump administration, told me that he believes Trump “absolutely will” follow through on his threats. “It’s one of the things that actually matters to him.” McCabe knows from experience: His life was turned upside down after he became a target of Trump’s baseless attacks and was threatened with indictment by Trump’s Justice Department over statements that he made to internal investigators about his disclosures to the press.

A lot has also changed since Trump was last in power — both for Trump and the presidency itself — that make it more likely that he will pursue his enemies and easier for him to direct the Justice Department to do so.

Trump has been through the legal wringer in the last year-and-a-half and will want payback. He’s a convicted criminal and still faces trials that could send him to prison , and he’s not likely to forget all about that even if his legal troubles essentially disappear once he reaches the White House. He could easily wreak havoc with many of his political opponents’ lives simply by subjecting them to long, costly and highly disruptive criminal investigations and prosecutions.

Even if the effort failed to produce any real convictions, the process itself would be a form of punishment for the targets. It could also seriously erode public faith in the federal criminal justice system while chilling political opposition to Trump.

The Supreme Court has also fundamentally expanded the parameters of the presidency with its ruling establishing sweeping criminal immunity for the president. Notably, the court also ruled that the president’s control over the Justice Department is essentially unfettered.

If Trump wanted to privately direct his attorney general to pursue baseless prosecutions against his political enemies, he could.

It also wouldn’t have to be so flagrant.

Using the levers of both policy and personnel that either didn’t exist last time he was in office or that he didn’t think to use, Trump could weaponize the Justice Department in novel and extraordinary ways — deploying pliant officials in the FBI and Justice Department and new proposals to make it easier for Trump to control the department’s work and oust uncooperative career officials.

That’s not to say that Trump would always succeed in his drive for revenge. As the first Trump administration showed, there are plenty of parts of the criminal process that cannot entirely be controlled within this country, even by the president. Prosecutors can refuse to file charges. Federal criminal statutes are broad, but they have limits. At least some facts are also needed to support a criminal case at the end of the day; if the facts aren’t there, grand juries and trial juries can thwart prosecutors, as they did in several notable investigations and prosecutions that Trump helped instigate.

Still, even a scattershot effort at the sort of politically motivated prosecutions that Trump has contemplated would exact a serious toll on the targets — and on the country. Here’s how it could happen.

‘They’re not going to be people who stand in his way’

Trump has often complained that his own top administration officials would not do his bidding, particularly when he tried to enlist them in his effort to remain in power after he lost the 2020 election.

So if he gets another term in the White House, Trump and his advisers are sure to work hard to ensure that a second administration is staffed with die-hard loyalists who will not push back on even his most extreme demands.

“It’ll be an entirely different cast of people. The Don McGahns of the world,” McCabe said, referring to Trump’s onetime White House counsel, “who threatened to quit when he said he’d fire [special counsel] Robert Mueller — those people will not be involved.”

“They’re not going to be people who stand in his way,” added the former Justice Department official. “What if all the people were Jeff Clark?”

Clark, of course, is the former senior DOJ official facing potential disbarment after trying to abuse the department’s powers to help Trump overturn the election. He was an unindicted co-conspirator in the federal election subversion case against Trump until the Supreme Court issued its immunity ruling and effectively shielded him from prosecution. Now he’s f loated as a possible attorney general in a second Trump administration.

It’s unclear whether someone as controversial as Clark would ultimately be confirmable even in a Republican-controlled Senate, but it’s also conceivable he could serve in an acting post and do real damage in the short term. For obvious reasons, Trump’s selection of attorney general would be crucial. That person could allocate resources for retaliatory investigations and prosecutions and even direct prosecutorial decision-making in particular cases against Trump’s supposed foes.

There are a raft of other appointments that Trump could use to advance a retaliatory prosecutorial effort beyond the attorney general — perhaps chief among them, the White House counsel. Notably, that role does not require Senate confirmation and is hand-picked by the president.

“If a president were to decide that he wanted to direct the Department of Justice to go after a particular political adversary, he would largely do that through the White House Counsel’s Office,” said Neil Eggleston, who served in the position during the Obama administration. “The president’s a busy person, so lots of follow-up — how it’s going to happen, that sort of stuff — the president isn’t going to handle those details himself.”

The involvement of the White House counsel would make matters worse. Since the resignation of President Richard Nixon, there has been a broad expectation that the White House will not coordinate with the Justice Department on specific criminal cases to avoid even the appearance of improper presidential interference with law enforcement. Trump publicly and privately flouted the policy while in office, but in a second term, he could keep his interventions out of public view with the right combination of policy changes and cooperative appointees.

“I assume if Trump is elected that the no-contacts policy will be eliminated,” Eggleston told me. “Each president reinstitutes it — it’s implemented by memorandum — so I suspect that it just wouldn’t be re-upped in a Trump administration.”

Trump’s appointment for the deputy attorney general position would also be crucial to pursuing a revenge agenda. The deputy attorney general does a lot of the day-to-day, operational work at the department, including working closely with U.S. attorneys, who enforce federal laws across the country.

Indeed, filling out the U.S. attorney positions — appointed by the president and confirmed by the Senate — would also be a key opportunity for Trump. This is particularly true in areas like Washington, D.C., Manhattan, northern Virginia and Maryland — where many of the people he wants to go after live or work — as well as Delaware, where prosecutors could further pursue the Biden family . While Trump was in office, the administration tried to get the U.S. attorneys in Manhattan and Maryland to prosecute former Secretary of State John Kerry , but both offices refused to seriously pursue it .

Even U.S. attorneys in less prominent jurisdictions can exercise considerable and unpredictable power — something that Trump and his allies are likely to understand better this time. When he was in office, the U.S. attorney in Utah, John Huber, conducted an investigation into an array of activities involving Hillary Clinton. Huber eventually closed the investigation without charges, and Trump blasted him as a “garbage disposal unit for important documents.”

The FBI director position is another plum target for Trump. Christopher Wray, who was appointed as FBI chief by Trump and confirmed almost unanimously by the Senate, has several more years left in his 10-year term, but Trump has turned on him . If elected, Trump could fire Wray and try to replace him with a more obedient figure — someone who would not hesitate to dedicate FBI agents and resources toward retaliatory prosecutions.

Other important positions for a Trump-led revenge tour include the FBI general counsel, who is chosen by the FBI director and advises FBI officials on investigative operations, and the head of the Office of Legal Counsel, a presidential appointee subject to Senate confirmation who provides legal advice to the White House and other executive branch agencies. The OLC can effectively insulate government officials from potential legal liability for engaging in unlawful conduct by issuing opinions that sanction their misconduct that can later be used in legal proceedings. The Trump appointee who led the OLC during his administration issued an array of highly consequential and questionable opinions .

The head of the Justice Department’s Criminal Division — another Trump appointee subject to Senate confirmation who prosecutes a wide array of criminal cases with national and international implications, could likewise prove pivotal. Among other things, that person oversees the department’s Fraud Section, which prosecutes financial fraud throughout the country, and the Public Integrity Section, which prosecutes public corruption cases. Those offices are supposed to be run by career officials, but in practice, Trump’s appointees and staff could exert significant influence over whoever holds those positions.

Trump could also direct his attorney general to appoint one or more special counsels to pursue some of his targets, and here too, there is precedent. While in office, Attorney General Bill Barr appointed John Durham (then the U.S. attorney in Connecticut) to serve as special counsel to continue an investigation into the origins of the Trump-Russia probe after Trump’s term ended. The yearslong Durham investigation ended up being a historic prosecutorial bust , but many Republicans and conservative media figures have nevertheless argued — despite the considerable weight of public evidence to the contrary — that the Trump-Russia probe was corrupt from the start and that Trump was persecuted.

After Trump was indicted by special counsel Jack Smith in the classified documents case in Florida, he promised to appoint “a real special prosecutor to go after” Biden, but that may no longer be necessary — or even advisable as a strictly strategic matter.

That is because in July, the judge in the case, Aileen Cannon, held that Smith’s appointment was unconstitutional. The decision represents a major outlier among the courts on the subject, but as Mike Davis correctly observed when we spoke, the Supreme Court could very well “affirm that opinion if it gets to them.”

Regardless of the ultimate outcome, Cannon’s decision offers Trump a superficially plausible public rationale for keeping any investigations of his political opponents entirely in-house at the Justice Department — and entirely under the supervision of his own political appointees.

‘They better find new jobs if Trump is elected’

Trump and his appointees could also implement policy changes that would make it even easier for him, his appointees and his staff to exercise direct control over Justice Department cases.

Former Trump administration officials and allies have already called on Trump to use his controversial “Schedule F” proposal to convert a large number of career Justice Department positions into political appointments. They have also proposed eliminating the FBI general counsel position altogether — on the supposed theory that the counsel’s office is partly to blame for the Trump-Russia probe because they approved some of the bureau’s investigative steps — and outlined a new proposed chain of command by which the FBI director, who currently reports to the attorney general and deputy attorney general, would instead report to more junior political appointees in the Justice Department. (The attorney general and deputy attorney general have very large portfolios and many demands on their time, so a change like this would in theory make it harder for the FBI director to quietly oppose or slow-walk any efforts directed by the White House or the Justice Department’s leaders.)

Davis, for his part, told me that he would also like to see changes directly in response to the Jan. 6 prosecutions, which he believes have been too expansive and too aggressive.

“That whole U.S. attorney’s office in D.C. — there needs to be a house cleaning there,” he said, “and I actually mean that one. They could be reassigned to the southern border or they could actually [pursue] real crimes.”

He clarified that he was not referring to the line prosecutors handling the cases but to the supervisors and political appointees who devised the legal theories and strategies. “Those prosecutors participating in the January 6 unit — they better find new jobs if Trump is elected,” Davis said. “Fuck those people.”

Other Trump allies would like to see harsher consequences for those at the Justice Department. Steve Bannon, who served as an adviser to Trump early in his administration (and who is currently in prison himself ) has said that a second Trump administration will also be “coming after” Attorney General Merrick Garland, Deputy Attorney General Lisa Monaco and “the senior members of DOJ that have prosecuted President Trump,” including special counsel Jack Smith.

A highly significant change to the government’s criminal enforcement apparatus, however, has already occurred.

That change came in the form of the decision from the Supreme Court over the summer granting Trump partial immunity from criminal prosecution for his alleged effort to steal the 2020 election. Among other things, the six Republican appointees on the court held that Trump was immune for any allegedly corrupt dealings with the Justice Department, which the justices described as involving his “conclusive and preclusive” authority to enforce the laws.

Trump could easily treat the Supreme Court’s decision as giving him free rein to direct his political appointees and staff in the department to go after his preferred targets without having to seriously worry about those instructions being exposed to outside scrutiny. And if they were made public, the law couldn’t touch him.

The Supreme Court’s decision has significantly expanded the president’s options and — at least in theory — pushed a variety of extreme and once-unthinkable scenarios into the realm of legal possibility.

‘The Supreme Court did not immunize the president’s staff’

Yet Trump would still face a variety of headwinds in this area — some of which presented themselves during his first term.

For one thing, the list of Trump’s targets far exceeds the list of readily apparent legal charges — a major problem for any prosecutorial effort, whether it’s undertaken as part of a widespread political revenge campaign or not. Any case against Biden based on his own possession of classified documents, for instance, would be hard to resuscitate in light of special counsel Robert Hur’s report , which argued that a jury would probably not convict him.

Then there is the challenge of getting line prosecutors — the people who would actually litigate and try these cases in court, with their long-term professional reputations at stake — to go along with legally thin or baseless cases. It is doable , to be sure, but not necessarily a simple matter.

“Laws, rules and policies create a powerful incentive for Justice Department officials to respect the tradition of making independent decisions,” said Rod Rosenstein, who served as deputy attorney general during the Trump administration.

Rosenstein has a unique perspective given his experience on the receiving end of Trump’s entreaties while in office, including facing pressure to go after former FBI Director James Comey and Mueller.

Still, Rosenstein told me, “Whenever the president commented about pursuing political opponents and going easy on political allies, I took it as an opinion and not an order because the Justice Department’s decisions about which cases to investigate and prosecute need to be based on evidence.”

In addition to prosecutors refusing to participate in unjustified investigations, there are also, in theory, internal watchdogs and state bar officials .

“Federal judges can dismiss cases,” Rosenstein went on to say. “Jurors can decline to convict.”

“Most conservative lawyers care deeply about the rule of law,” he said. “Even if they think Republicans are unfairly targeted by the prosecutors — and many do believe that — people who respect the rule of law don’t want to see prosecutors target Democrats either.”

In addition, Eggleston noted, the Supreme Court’s ruling this summer immunized the president, “but the Supreme Court did not immunize the president’s staff.” That would at least create the specter of legal exposure for Justice Department officials who accede to clearly unlawful instructions from Trump. (Of course, Trump could potentially eliminate that exposure at some point with a presidential pardon.)

Even if Trump successfully instigated criminal cases against some of his political opponents, prosecutors would also still have to contend with both grand juries and trial juries in the relevant jurisdictions. Given the potential targets, those juries could end up being in major metropolitan areas — think Washington, northern Virginia or Manhattan — that have large if not overwhelming numbers of Democratic voters who could throw a wrench in the most brazen efforts.

Indeed, after the effort to prosecute McCabe ultimately collapsed , some veteran Washington lawyers privately speculated that the Justice Department may have been forced to back off after grand jurors told prosecutors that the case was so weak that they would not indict him if asked. And in the case of the Durham investigation, juries acquitted the defendants in the only two cases that went to trial .

Trial judges also have some authority to dismiss transparently bogus charges or to overturn convictions that are unsupported by sufficient evidence. There are, of course, appeals courts too, and in the key jurisdictions , there are relatively few Trump appointees on the appellate benches .

Given these sorts of constraints, people like Davis are deeply skeptical of the prospect of a serious prosecutorial revenge tour — even if they would be more than happy to see it come about.

‘It’s frightening and disturbing’

It is not accurate to say, as people sometimes do, that Trump’s efforts to weaponize the law against his opponents have been unsuccessful to date.

No, Hillary Clinton was not locked up, but it is hard to believe that prosecutors would have pursued Hunter Biden as aggressively as they have if Trump had not engaged in years of vocal and repeated attacks on the president’s son. Earlier this month, Hunter Biden was convicted in the second of the two criminal cases against him.

Moreover, even an unsuccessful prosecutorial initiative like the one Trump has contemplated would exact a serious toll on the targets — who are, lest we forget, actual human beings.

“Regardless of whether someone ends up getting indicted or not,” the former top DOJ official observed during our discussion, “the mere fact that they’re under criminal investigation has a tremendous impact on their lives and reputations.” Indeed, even if you don’t get convicted, being investigated and prosecuted in a complex case can be extremely stressful, not to mention expensive.

“I think that people are being too charitable in their recollections of what happened,” McCabe told me.

The legal cases involving McCabe that were set in motion by Trump have since been decisively resolved in McCabe’s favor , but when I asked him to reflect on the experience at the time, he was frank.

“I can’t even describe to you how head-spinning this is to go through this 21-year career — running the FBI at the end of it — and all of a sudden you’re worried about everything,” he said. “Going to jail, working again, getting bankrupted by attorneys’ fees.”

He is grateful to have avoided these sorts of problems. But given his own extensive experience in federal law enforcement, he understood the risks if things did not work out: “It’s frightening and disturbing on a very rational level.”

Even the smallest of figures caught up in Trump’s legal crosshairs can suffer life-altering consequences.

In the end, Durham managed to obtain a single conviction in his investigation into the Trump-Russia probe, but it involved a low-level FBI attorney who pleaded guilty to altering an internal email in connection with the FISA application for Trump’s 2016 campaign adviser Carter Page. The facts of the case have been misrepresented by many Trump supporters and the conservative media, but the conduct — while clearly unjustified — was likely inconsequential and, as the sentencing judge concluded, probably had nothing to do with anti-Trump bias.

The lawyer in question ultimately received probation , but the plea deal effectively ended his government career. He eventually agreed to suspensions of his law license in multiple jurisdictions , but someone who did what he did would ordinarily just be subjected to internal (and non-public) disciplinary measures within the government.

People who oppose Trump in the 2024 election sometimes worry about the end of “the rule of law” in this country if he is elected, particularly given Trump’s still-growing record of statements about how he wants to prosecute his political enemies.

The rhetoric is evocative, and the concerns are justified, but if Trump’s first term is any guide, we might instead see something more akin to what legal and political philosophers sometimes describe as “rule by law” — when the government selectively deploys the law in order to punish some of its enemies and help its allies.

This is not necessarily the widespread breakdown in the rule of law that some people fear in the worst-case authoritarian scenario, but it is pernicious nonetheless — a form of slow-burn democratic erosion that can wreck people’s lives and chill legitimate government opposition in ways that resemble the democratic backsliding in recent years in countries like Hungary.

However you ultimately choose to frame it, the stakes are undeniably serious for those involved — and for the culture of free expression and political dissent in this country. It’s striking how many former Trump officials and other prominent Republican lawyers have continued to turn against Trump over concerns that he will reprise his malign efforts from the first term on a grander scale, attempting to prosecute a wider array of perceived enemies and also proving to be much more adept at it.

“People aren’t thinking creatively enough,” McCabe said, “about this whole idea of the revenge tour.”