The Trump administration has declared war on a number of enemies. The tools vary, but so far the administration seems to be using the power of investigations more than criminal charges.
It might seem as if an investigation is a less punishing experience. But for the targets of those inquiries, the costs — in money, reputation, and emotional suffering — may be nearly as great as if the president and his team brought actual prosecutions.
Trump administration officials have brought criminal charges against Hannah Dugan, a judge in Wisconsin, in the obstruction of an immigration arrest, and against U.S. Representative LaMonica McIver of New Jersey, in an assault on federal immigration agents.
But the number of investigations is far greater, perhaps around 100 cases across all federal agencies. (The actual number is unknown, because some investigations take place in secret.) Federal authorities — from the Justice Department to the Federal Trade Commission to the Equal Employment Opportunity Commission — can open investigations for any reason, or no reason, and compel interviews with witnesses and the production of records, including confidential financial documents and emails. Failure to comply with those demands can, in turn, generate further investigations and possible prosecutions.
The bases for these investigations often seem dubious. Earlier this month, President Trump ordered the Justice Department to investigate the propriety of former President Joe Biden’s use of an autopen to issue directives. For decades, presidents, including Mr. Trump himself, have used autopens, and in 2005 the Justice Department issued a formal opinion sanctioning the practice.
The investigations include several other high-profile targets. In April, President Trump demanded that the Justice Department investigate ActBlue, the online clearinghouse that has raised many billions of dollars for Democratic candidates and progressive groups. Mr. Trump’s rationale was weak: He asserted that ActBlue had processed illegal contributions from foreigners and others. The numbers were small, and the Republican counterpart to ActBlue, known as WinRed, also appears to have received a number of questionable contributions. But it will be ActBlue that has to hire lawyers and incur other costs that will detract from its mission of winning elections against Mr. Trump’s party.
Likewise, the Federal Trade Commission is investigating Media Matters, a liberal advocacy and media organization that has been critical of President Trump and other Republicans. As with the ActBlue inquiry, the basis is dubious. The F.T.C. is apparently investigating whether Media Matters and other organizations colluded with advertisers to damage Republicans, though it’s far from clear that any such collusion took place or, if it did, that the communications cited were unlawful. Again, even if the investigation produces no official action against it, Media Matters will have to endure the cost, distraction and reputational damage of being a target of the government.
The key figure behind the investigative targeting of political adversaries is Ed Martin, who has emerged as the id of the Trump prosecutorial universe. Mr. Martin’s extreme political views resulted in his inability to win Senate confirmation as U.S. attorney for the District of Columbia, so instead he was then transferred to two senior posts at Justice Department headquarters. In one role, as the pardon attorney, he recently, and aptly, summed up President Trump’s approach to presidential pardons as “no MAGA left behind.”
Mr. Martin also heads the department’s “Weaponization Working Group,” and while the group’s precise mission is unclear, it appears, under his leadership, and Attorney General Pam Bondi’s oversight, to be focused on investigating prosecutors who had investigated Mr. Trump, including former Special Counsel Jack Smith, Manhattan District Attorney Alvin Bragg and New York State Attorney General Letitia James.
On the day that Mr. Martin took charge of the working group, he offered a characteristically blunt description of his agenda. “There are some really bad actors, some people that did some really bad things to the American people,” he said, “And if they can be charged, we’ll charge them. But if they can’t be charged, we will name them. And we will name them, and in a culture that respects shame, they should be people that are ashamed. And that’s a fact. That’s the way things work. And so that’s how I believe the job operates.”
That is not, however, how the Department of Justice is supposed to operate. According to the department’s Justice Manual, prosecutions are supposed to begin only if the prosecutor “believes that the person will more likely than not be found guilty beyond a reasonable doubt by an unbiased trier of fact and that the conviction will be upheld on appeal.” In other words, prosecutors are supposed to prosecute — or shut up. But Mr. Martin appears to see himself as a quasi journalist, although one with subpoena power.
When the Trump administration has taken formal action against its adversaries this year — including ordering deportations, imposing penalties against law firms or cutting off funding to government agencies — the courts have frequently stepped in and overturned the sanctions. But there has been no judicial relief for the targets — individuals or institutions — of investigations. That’s because, in some ways, the subjects of investigations have fewer legal protections than they do in actual prosecutions. Criminal cases are supervised by neutral judges, who determine the relevancy of evidence and the overall fairness of the process. In trials, defendants are guaranteed the right to counsel (without charge if they are unable to pay), and the process is open to public scrutiny.
In contrast, government investigators have nearly carte blanche to demand testimony and evidence, and they generally operate without judicial oversight except in the most extreme cases. Therefore, the targets of President Trump’s investigations have had no real chance to challenge the ordeals they are facing. If the subjects of investigations want to be represented by counsel (which is always the prudent course), they themselves must pay for the lawyers.
The ability of prosecutors and other government officials to demand documents presents especially grave risks for those targeted. It’s often difficult and time-consuming to assemble a large volume of documents, and the job can be ruinously expensive when supervised, as it should be, by private lawyers. Worse, government officials can use demands for documents to bootstrap an otherwise flailing investigation into a criminal case or at least one that leads to sanctions.
That’s what happened to Harvard. On April 16, as part of its investigation of antisemitism at the university, the Department of Homeland Security demanded eight categories of information on thousands of foreign students. In a court filing, Harvard asserted that it attempted to comply with the demand, but D.H.S. deemed its reply “insufficient” and, as punishment, directed that Harvard lose its ability to host foreign students. (In May, a federal judge in Boston issued a temporary restraining order allowing the students to remain at Harvard and in the United States for the time being; earlier this month, the administration, through a different legal route, sought again to forbid foreign students from attending Harvard.)
So the investigations continue, often at Mr. Trump’s direct order. The president demanded criminal investigations of Chris Krebs, a former top cybersecurity official whom the president himself had appointed, because Mr. Krebs defended the validity of the 2020 election, and of Miles Taylor, a former Department of Homeland Security official who wrote an article and a book critical of Mr. Trump.
The president also insisted on a criminal probe of the governor and attorney general of New Jersey, both Democrats, over their conduct of immigration policy. The Department of Justice is also apparently investigating whether Andrew Cuomo, the former governor of New York and a candidate for mayor of New York City, made false statements to Congress about his record on Covid. The Justice Department’s Civil Rights Division is looking at whether some hiring practices of Mayor Brandon Johnson Chicago violated an affirmative action law. The Justice Department, E.E.O.C. and Department of Education have opened investigations of dozens of universities, accusing them of condoning antisemitism and discriminating against white and Asian students.
In his first term, President Trump’s administration also investigated a number of his political adversaries, including James Comey, Andrew McCabe and Peter Strzok, all F.B.I. officials who drew Mr. Trump’s ire. Those cases did not lead to criminal charges, but the targets, like those who now face the scrutiny of federal officials, paid a price anyway. That’s the point. The process is the penalty, and the penalty is the process.
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Jeffrey Toobin is a former assistant U.S. attorney who writes about the intersection of law and politics. He is the author of “The Nine: Inside the Secret World of the Supreme Court,” “The Pardon: The Politics of Presidential Mercy” and other books.
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