The Trump administration is coming under fire for politicising the Department of Justice (DoJ) and undermining the US government’s enshrined separation of powers, which relies on an independent system of justice. This is a central principle of the US constitution, without which a president could govern virtually unchecked.

Critics point to recent indictments of people perceived to be Donald Trump’s political enemies, alleging the DoJ has acted on instructions or percived pressure from the president.

Former FBI director James Comey was indicted at the end of September on one count of making a false statement to Congress and one count of obstructing a congressional proceeding.

Letitia James, the attorney general of New York, has been charged with bank fraud and making false statements to a financial institution, relating to a property she purchased in Virginia in 2023. James led a civil prosecution of Trump on fraud charges the same year.

And most recently, John Bolton, the national security adviser during Trump’s first term and now an outspoken critic of the president, has been indicted on federal charges pertaining to the alleged mishandling of classified information.

All these indictments followed messages posted by the president on his TruthSocial platform, urging for them to be charged. In an often angry four-hour session in the senate judiciary committee on October 7, Democrat lawmakers accused the US attorney general, Pam Bondi, of “brazenly political” decision-making.

Democrat senators raised multiple areas of concern. These included the firing of hundreds of senior DoJ officials and their replacement with Trump loyalists, the dropping of investigations into some Trump loyalists, and the initiation of investigations, apparently at the behest of the president, into his political enemies.

Senator Dick Durbin of Illinois said Bondi had “systematically weaponised our nation’s leading law enforcement agency to protect President Trump and his allies and attack his opponents and, sadly, the American people … What has taken place since January 20 2025 would make even Richard Nixon recoil.”

Trump’s critics say his recent actions, appearing to put pressure on the US attorney general and DoJ to pursue certain investigations, are an abuse of power.

As US legal scholars Bruce Green and Rebecca Roiphe wrote in the the New York Law School’s journal in 2018, the attorney general must refuse a “president’s direction to indict a political opponent or to dismiss charges against a political ally because the president’s motivations are partisan”. They must also refuse, according to Green and Roiphe, when professional conduct rules require no action to be taken, such as where there is insufficient evidence to proceed.

Pam Bondi at the judiciary committee hearing.

But there are competing perspectives on the scope of the president’s power. During Trump’s first term, he and his lawyers – along with supportive legal scholars – argued that the president has absolute control over all decisions to prosecute. In a 2017 interview with the New York Times, Trump claimed to have an “absolute right to do what I want to do with the justice department”.

An independent system of justice?

The DoJ was set up in 1870 by an Act of Congress – headed by the attorney general, who is appointed by the president. The DoJ’s functions included prosecuting violations of federal law and protecting the country from subversive activities.

But when the DoJ was established, there was little federal criminal law in place. Most criminal activity was dealt with by each state, independently of the president.

This changed in 1908 with the creation of the Federal Bureau of Investigation (FBI), which was aimed at professionalising law enforcement (largely undertaken by locally trained state police) and rooting out government corruption. FBI investigations, particularly in relation to organised crime, highlighted the need for the creation of laws recognising a range of federal offences, which Congress duly passed.

The Hatch Act of 1939 then sought to limit the political activities of federal employees, establishing precedents for regulating executive branch behaviour. This significantly expanded the scope for misuse of the attorney general’s powers.

A year later, then-attorney general Robert H. Jackson warned: “With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some sort on the part of almost anyone.” He added that: “It is here that law enforcement becomes personal, and the real crime becomes that of being unpopular with the predominant or governing group.”

The danger highlighted by Jackson became clear during the Nixon presidency. Most egregiously, at the height of the Watergate scandal in 1973, the president ordered the attorney general, Elliot Richardson, and his deputy, William Ruckelshaus, to fire Archibald Cox, the special prosecutor appointed by the Senate to investigate the growing scandal.

Both Richardson and Ruckelshaus refused and resigned. Nixon then ordered the solicitor general, Robert Bork, to carry out the firing. Bork complied.

Cut out of a New York Times story from the Nixon era.
How the New York Times reported the sacking of special counsel Archibald Cox in October 1973. New York Times

Ensuring independence

The administrations of Gerald Ford and Jimmy Carter that followed set out to reestablish public confidence in both presidential integrity and the independence of the DoJ. The Independent Counsel Act of 1978 (part of the Ethics in Government Act) attempted to remedy some of the conflict of interest concerns highlighted by Watergate, and ensure impartial investigations in situations where the attorney general could face a conflict of interest.

While there is no formal separation, there has been a clear policy since the 1980s to limit communications between the White House and the DoJ to situations necessary for the discharge of the president’s constitutional duties. This would not include instructing or bringing any form of pressure on the DoJ to investigate or prosecute a perceived opponent, to prosecute someone at the request of the president, nor to drop an investigation for partisan reasons.

Commenting on the Comey indictment, Democrat senator Mark Warner severely criticised the charges, stating: “Donald Trump has made clear that he intends to turn our justice system into a weapon for punishing and silencing his critics.”

Warner added that this was “a dangerous abuse of power. Our system depends on prosecutors making decisions based on evidence and the law, not on the personal grudges of a politician determined to settle scores.”

It remains to be seen whether the US justice system is robust enough to hold, in the face of intense political pressure from the Trump administration.

This article is republished from The Conversation, a nonprofit, independent news organization bringing you facts and trustworthy analysis to help you make sense of our complex world. It was written by: Vince Pescod, The University of Law

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Vince Pescod does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.