Several current and former senior Justice Department and FBI officials have begun reaching out to lawyers in anticipation of being criminally investigated by the Trump administrationaccording to three people with knowledge of their deliberations.
Following Trump’s decisive election victory, many DOJ officials and career staffers were already nervous about the possibility that they would be targeted by Trump loyalists, particularly members of Congress. But the selection of former Rep. Matt Gaetzfar-right Trump ally who was the subject of a recent FBI investigation, to lead the department has sharply increased the sense of alarm, the sources said.
“Everything we did was above board,” said a former senior FBI official, who has started contacting lawyers because he expects to be prosecuted himself. “But this is a different world.”
The official, who spoke on the condition of anonymity out of fear of becoming even more of a target, doesn’t believe any attempt to prosecute him will be successful. Judges and juries have the power to throw out cases or find defendants innocent if they deem prosecutions to be baseless.
But like many other current and former Justice Department officials, he is bracing for a potentially long and costly legal battle, as well as the possibility of protracted congressional investigations, after Trump takes off in January.
Career FBI employees are particularly vulnerable, the official added. Since they make less money than they would in the private sector, they rely on the pensions they receive after 20 years.
“Agents have to do 20 years,” the former senior FBI official said. “These people don’t have options.”
A former senior DOJ official who served during Trump’s first term said he, too, saw Gaetz’s nomination as a sign of the seriousness of the president-elect’s vow to exact revenge on those who investigated him.
“He needs to be able to control the department, which he can do through a loyal AG beholden to him,” the former DOJ official said.
Gaetz, who was the subject of a federal sex trafficking investigation that ended without charges“understands that he owes everything to Trump, who can protect Gaetz as well through his pardon power,” the former official added. “Trump is confident that Gaetz will do whatever Trump tells him to do.”
Trump and his supporters have consistently argued that all of the criminal investigations against him have been politically motivated, and that DOJ and FBI officials deserve to be prosecuted.
Weeks before Election Day, Stephen Cheung, a spokesman for Trump, called for the Jan. 6 charges and all federal and state criminal charges to be dropped against Trump.
“This entire case is a sham and a partisan, Unconstitutional Witch Hunt that should be dismissed entirely — as should ALL of the remaining Democrat hoaxes,” Cheung said.
Legal experts say Trump’s goal in investigating his investigations is simple: intimidate anyone who dares to probe Trump’s conduct.
“Trump aims to neutralize sources of power that may impede him,” said Stephen Gillers, an ethics professor at New York University Law School. “That includes the law and legal institutions. He will tolerate no interference when the Department’s decisions will benefit Trump and his buddies or when his power can be deployed to retaliate against his enemies.”
Shock inside the DOJ
DOJ officials, including Attorney General Merrick Garland, were shocked by Trump’s decisive election win. For the last four years, Garland has argued that strictly following post-Watergate norms that require the DOJ to work in a non-partisan manner in criminal investigations would restore public trust in the DOJ.
Instead, some career DOJ officials wept after the election, dismayed by the fact that large numbers of Americans apparently continue to believe Trump’s claims that the department is a cesspool of corruption.
DOJ and FBI officials say that the Trump investigations were carried out properly. DOJ prosecutors secured indictments from federal grand juries against Trump for his mishandling of classified documents and his efforts to reverse the 2020 election results.
They expressed bafflement at what criminal charge could be brought against them as a result. “There’s no crime,” said a current law enforcement official. “What’s the crime?”
Mike Davis, a conservative lawyer and Trump ally, has argued that special counsel Jack Smith could be prosecuted for breaking one of the laws that Smith accused Trump of breaking regarding the 2020 election: conspiracy against rights.
The statute says it is illegal for anyone to deny a person a federal right, such as voting. Smith argued that Trump’s attempt to reverse the 2020 election results denied voters in multiple states the right to have their votes accurately counted.
Ilya Somin, a law professor at George Mason University, said that he did not see how Smith could be charged with denying Trump a federal right.
“I think that’s absurd,” he said. “I don’t see any legitimate charge that can be brought against Smith.”
Somin warned that a prosecutor can investigate an individual over a long period and find that they had broken unrelated federal laws that cover minor offenses.
If Trump’s attorney general, for example, appoints a special prosecutor to examine the federal criminal investigations of Trump, they could find that a DOJ or FBI official broke a federal law that does not relate to the Trump probes, such as a tax or drug infraction .
“If you think about it, a majority of adult Americans have probably violated federal laws, such as smoking marijuana, at some point in their lives,” Somin said.
Special Counsel Robert Mueller, during his investigation of whether Trump campaign officials coordinated with Russia during the 2016 campaign, charged multiple Trump associates with unrelated crimes. Paul Manafort, Trump’s campaign chairman, was sentenced to just under four years in prison after being convicted of tax and bank fraud.
A special appointed by Attorney General Bill Barr, John Durham, then spent years scrutinizing the actions of the CIA and FBI in connection with Russia’s 2016 election interference efforts, only to net a single guilty plea from an FBI lawyer who lied on a document.
But many of those investigated by Durham had to spend thousands of dollars on legal fees. Now, a new group of DOJ and FBI officials are facing the prospect of hefty legal fees as well.
Gillers, the NYU professor, said that he believes Trump’s nomination of Gaetz was the beginning, not the end, of his efforts to exact revenge on the department.
“Elevating Gaetz is in part payback for Jack Smith’s two indictments,” Gillers said. “The Justice Department is Trump’s white whale and like Captain Ahab, Trump is determined to get even.”