Project 2025’s Plan for DOJ
Previous posts describe the apocalyptic vision of America in the forward to the Heritage Foundation’s Project 2025 Mandate for Leadership, the report’s plan to establish strong presidential control over federal agencies and the National Security Council (NSC), and its plan to politicize the federal civil service. This post assesses the chapter on the Department of Justice (DOJ). Subsequent posts will cover the Department of Homeland Security (DHS), the Department of Defense (DOD), and the Intelligence Community (IC). Abuse of those agencies would pose the greatest danger to the rule of law and to vulnerable communities, including immigrants.
The forward stakes out the MAGA vision of America’s decline. America has been captured by left-wing woke elites in the government, in schools, and even in management at large corporations. For decades, they have conspired to undermine America. The solution is to enhance presidential authority over the bureaucracy by closely monitoring agency leaders, placing trusted political appointees deeper into the federal bureaucracy, and undermining civil service protections for federal workers in management positions. The report’s chapters on “reining in the federal bureaucracy” offer steps to politicize the NSC staff and assert enhanced White House control over DOJ and DOD.
That vision is carried forward in the chapters on the national security agencies. The DOJ chapter claims DOJ is politically compromised to justify politically compromising DOJ. Demonizing institutions to justify compromising them is a step in authoritarianism. Fortunately, the institutions in the United States that, if abused, pose the greatest danger to democracy are also the most highly regulated and norm-bound. Ironically, as much as these institutions are criticized on the left, they may provide some of the greatest protections against authoritarianism from the right.
The chapter on DOJ begins with misrepresentations about the Trump-Russia investigation, Hunter Biden’s laptop, alleged DOJ targeting of parents at school board meetings, the “weaponization” of DOJ, and other right-wing talking points. It is written by Gene Hamilton, an anti-immigration zealot who helped orchestrate the Trump administration’s harsh immigration policies. Hamilton served as the White House’s immigration minder at DHS and DOJ, working closely with Trump adviser Stephen Miller. Aside from that role, he has no DOJ background or legal experience outside immigration.
The Demonization of DOJ
The chapter is strikingly mendacious. It is important to understand the falsity of its allegations because, consistent with the report’s vision, they are used to justify undermining longstanding institutional norms.
The chapter asserts that “[l]arge swaths of the department have been captured by an unaccountable bureaucratic managerial class and radical left ideologues who have embedded themselves throughout its offices and components.” The vast majority of staff at DOJ are prosecutors and investigators in the field. The “bureaucratic managerial class” would mean supervisors who are experienced prosecutors and agents. The Washington, DC offices include DOJ and FBI headquarters and several DOJ litigating components. The headquarters offices also include the politically appointed officials and staffs who oversee DOJ’s components. FBI headquarters is staffed by the offices of the FBI director, deputy director, management of FBI’s various national security and criminal investigative units, and intelligence analysts, in addition to the FBI general counsel’s office. Every one of these offices reports to politically accountable leadership in a somewhat flat organizational structure. It is true that the FBI reports to a director subject to a ten-year term, but that is a choice Congress made to ensure the political independence of the FBI.
The demonization of DOJ staff is followed by a list of misrepresentations about DOJ actions.
The list starts with the allegation that the FBI collaborated with Democratic operatives to inject the Russia collusion story into the 2016 election, falsified a Foreign Intelligence Surveillance Act (FISA) warrant, and lied to Congress. The DOJ Office of Inspector General, an independent oversight body, determined that the FBI had grounds to open the investigation and did not act out of political bias. The problems with the FISA warrant on Carter Page led to a criminal case against an FBI agent and reforms imposed by Attorney General Barr to ensure the accuracy of FISA applications. The reforms also provide for enhanced review in politically sensitive matters. There is no suggestion that those reforms have proven insufficient.
Next, the list focuses on the Hunter Biden laptop story, a right-wing hobbyhorse. It claims that the FBI engaged in a “campaign to convince social media companies and the media generally that the story” about emails on the laptop was a “Russian misinformation campaign.” The background is that a copy of the laptop’s hard drive was given to Trump associates, without Hunter Biden’s permission, by the owner of a computer repair shop where Biden had apparently forgotten it. In October 2020, during the presidential campaign, the Trump associates including Rudy Giuliani reached out to The New York Post, owned by Rupert Murdoch, to publish articles stating that the laptop showed corruption by Joe Biden relating to Hunter Biden’s dealings in Ukraine. The Post is a right-wing tabloid (cited throughout the report’s DOJ chapter). The Post obliged, over the objections of some of its staff. Trump used the story on the campaign trail. The FBI had recently obtained the laptop in connection with an ongoing investigation into Hunter Biden for possible tax fraud.
The big social media companies blocked or demoted the New York Post story pursuant to policies that prohibit posts using hacked material, since the material from Biden’s laptop was copied and distributed without his consent, or pursuant to policies that prohibit inauthentic content, given uncertainty about the provenance of the information. Numerous former IC officials, including ones who had worked for Trump, issued a letter warning that the story could be Russian disinformation.
Any interactions between the FBI and social media companies about the authenticity of the information in the story would have been carefully reviewed by DOJ political leadership, which in October 2020 was under the Trump administration. The statement in the chapter that the FBI “could have clarified the authenticity of the source” and purposefully did not illustrates the chapter’s pernicious misunderstanding of DOJ norms. DOJ does not share information about ongoing investigations and does not conduct investigative activity to rebut news stories planted by political operatives. In any event, the suggestion that the FBI, based on possession of the laptop itself, could verify the authenticity of each of the emails in a copy of the laptop’s hard drive possessed by Trump associates is obviously false.
The next supposed abuse by DOJ involves DOJ allegedly targeting parents protesting at school board meetings. DOJ formed a group to investigate such conduct because it involved serious threats of violence against school board officials in multiple jurisdictions. The report offers no evidence that DOJ targeted mere protests or disruptive behavior.
The next item on the list is based on allegations in a Twitter post. The claim is that the FBI engaged in a “domestic influence operation to pressure social media companies to report more ‘foreign influence’ than the FBI was actually seeing and stop the dissemination of and censor true information directly related to the 2020 presidential election.” But this allegedly happened during the Trump administration. DOJ leadership would have had full visibility into sensitive work relating to elections, including by Russia and China. Indeed, ferreting out influence campaigns by China was a Trump administration priority. During the Trump administration, DOJ emphasized the importance of identifying undisclosed influence efforts by foreign adversaries. It released a policy on disclosing such information to protect election integrity. Accordingly, the report’s allegations are hard to understand. Moreover, no evidence suggests the FBI pressured social media companies. The Supreme Court argument in Missouri v. Biden, a lawsuit challenging the government’s interactions with social media companies on issues ranging from COVID to election interference, strongly suggests the Court will reject such claims overwhelmingly.
Relatedly, the list goes on to allege falsely that the FBI tasked agents with monitoring social media and “flagging content they deemed to be ‘misinformation’ or ‘disinformation’ . . . for platforms to remove.” The source is one email exchange between an FBI agent and a Twitter employee. The context is unclear, but the FBI agent was apparently asking Twitter about foreign state propaganda. FBI’s concern would have been about undisclosed adversary influence campaigns run by countries like Russia and China, using fake accounts. Those activities violate the providers’ terms of service. Only U.S. intelligence agencies may be able to uncover large-scale coordinated foreign influence campaigns over social media. It is important for that information to be shared with social media providers, for the providers to assess on their own. Indeed, the report would make it a priority in countering China.
The list proceeds to state that DOJ has “devoted unprecedented resources to prosecuting American citizens for misdemeanor trespassing offenses” while dismissing prosecutions of “radical agents of the Left like Antifa.” This is an example of the chapter’s bad faith. These “misdemeanor trespassing offenses” are from the mass assault on the U.S. Capitol on January 6. The “unprecedented resources” devoted to the January 6 cases reflect the unprecedented attack on democracy. And those investigations began immediately after the attack, by the Trump Justice Department. As for the Antifa bogeyman, in the aftermath of the Portland riots, Attorney General Barr pointed to Antifa as an instigator, but no criminal cases brought by DOJ under his leadership involved Antifa connections.
Next on the list is the claim that DOJ “consistently threaten[s] that any conduct not aligning with the liberal agenda ‘could’ violate federal law,” to “chill disfavored behavior such as with state efforts to restrict abortion or prevent genital mutilation of children.” It cites a letter to state attorneys general from the head of the Civil Rights Division. The letter warns that state laws interfering in parental and doctor-patient relationships with transgender minors who seek gender-affirming medical care could violate the Constitution and federal law. No doubt, a future Trump DOJ would also issue its enforcement views, consistent with its policy priorities. The Trump DOJ under Attorney General Barr did just that in harshly criticizing sanctuary cities. The criticism is particularly ironic given the recommendation in the chapter to criminally prosecute state officials if a Trump DOJ disagrees with how they apply state election laws.
DOJ’s supposedly lawless actions also include suing states for their supposed “efforts to protect election integrity.” Two of the citations, however, concern DOJ challenges to gerrymandered districts that would undermine electoral fairness. One involved a voter identification law that was a thinly veiled effort to suppress minority voting. These are civil suits like ones DOJ has brought many times in the past. By contrast, the recommendation to bring criminal charges against state officials for how they apply state election laws is remarkable.
The final criticisms blame DOJ for doing too little to combat fentanyl trafficking and illegal immigration, including abandoning adjudicating cases in the immigration system. Fentanyl trafficking increased dramatically during the Trump administration. The Biden Justice Department has announced that fentanyl is a top priority. DOJ announced internal and multi-agency task forces devoted to combatting fentanyl. And the chapter offers no support for the claim that DOJ significantly altered resources devoted to illegal immigration, other than ending the family separation prosecution and detention policies that proved so disastrous.
These false claims, supported largely by tabloid citations and Twitter posts, set the stage for the chapter’s recommendations attacking DOJ and FBI independence. The chapter proclaims that “[a]nything other than a top-to-bottom overhaul will only further erode the trust of significant portions of the American people and harm the very fabric that holds together our constitutional republic. At a practical level, not reforming the Department of Justice will also guarantee the failure of that conservative Administration’s agenda in countless other ways. Successful reform will require more than minor peripheral adjustments. It will require a holistic, energetic, leadership-driven effort to remedy the damage that has been done and advance the national interest.”
2. Reining in the FBI
The chapter’s main enemy is the FBI. Based on the “Russia hoax of 2016, Big Tech collusion, and the suppression of Hunter Biden’s laptop,” the chapter calls for DOJ to appoint attorneys (who would be vetted by Trump political leadership at DOJ) to review all major active FBI investigations. To counter FBI’s institutional independence, the FBI would answer to political appointees who lead DOJ’s Criminal Division and National Security Division, rather than reporting directly to the Attorney General and Deputy Attorney General. And it recommends that Congress eliminate the FBI director’s special ten-year term.
Every administration confronts tensions with the FBI’s unique role in the government and its quasi-independent relationship to main DOJ leadership. The FBI must answer to the Attorney General. Director Comey made a grave error going around the Attorney General in his pronouncements about the Clinton email investigation. At the same time, as the director’s ten-year term reflects, the FBI — even more than main DOJ — is supposed to be insulated from politics, in light of its extensive domestic powers. The recommendations would instead place it under day-to-day oversight of lower political appointees subject to direct control by an Administration. The leaders of these divisions historically have been very capable, but by design they are less politically insulated and have less political clout vis-a-vis DOJ and White House leadership. They are involved in reviewing major FBI activities that fall within their areas, but for good reason they cannot require the FBI to redirect investigative activity.
The recommendation to vet all major investigations is an invitation to interfere in investigations that a Trump administration would want to end, regardless of the merits or the national security concerns. If appointees share the distorted vision in the report, the harm could be substantial. Strikingly, although terrorism has long been FBI’s top priority, and domestic terrorism is the greatest terrorism threat, the chapter does not mention it. The chapter also claims falsely that FBI polices and suppresses speech online. Viewed through such a distorted lense, political appointees could curtail FBI domestic terrorism investigations, along with the January 6 cases, and could curtail FBI efforts to identify efforts by adversaries like Russia covertly to spread misinformation. The review surely would limit investigations affecting Trump associates and supporters, whether foreign or domestic.
3. Politicizing DOJ
The chapter also recommends a purge of DOJ. It would end DOJ investigations of “perceived political enemies.” That can only mean the January 6 rioters and Trump and his associates. It calls for ending all policies, investigations, or cases that “run contrary to Administration policies,” regardless of merit. The chapter recommends issuing guidance to DOJ attorneys handling civil cases that they have a duty faithfully to represent administration positions. And it suggest imposing disciplinary measures if they do not. To ensure political control over DOJ, the chapter recommends installing “sufficient political appointees throughout the department.”
And what are the chapter’s enforcement priorities?
It proposes to ignore state and local criminal enforcement policies when they fail to meet DOJ’s expectations. It recommends ramping up federal criminal enforcement over crimes that otherwise would be prosecuted locally—generally, drug crimes—whenever a local jurisdiction’s enforcement approach falls short. The chapter even recommends bringing some kind of civil rights suits against local prosecutors who do not enforce state criminal law. Since the report also recommends federally prosecuting ordinary drug possession, which few states prosecute and many have legalized, these recommendations could result in a federal crackdown on marijuana sales and use.
Remarkably, the chapter recommends criminally prosecuting state officials for a conspiracy to deprive voters of their rights if DOJ concludes they misapplied state election laws. This is aimed at the Trump campaign complaint that Pennsylvania officials and courts altered state election law by facilitating mail-in voting.
Though the chapter says DOJ must focus on violent criminal organizations, like MS-13, it says nothing about how that should be done, other than prosecuting ordinary drug possession. The chapter says virtually nothing about national security, historically one of DOJ’s top priorities. It suggests bringing back the so-called China Initiative, a label used by the Trump Justice Department to refer to investigations and prosecutions directed at China and Chinese nationals in the United States engaged in commercial espionage or other illegal activity. But a label is not an enforcement strategy. DOJ made clear when it stopped using the label—which had become associated with targeting Chinese academics and others based on nationality—that it would continue aggressively investigating the same types of activity addressed in the China Initiative. Remarkably, counterterrorism is not mentioned, probably because the right refuses to recognize white nationalist domestic terrorism as a problem.
Instead, the chapter focuses on right-wing causes.
It recommends using DOJ to oppose diversity initiatives that discriminate against white people. It opposes legal prohibitions on discriminating against gay people, where those could interfere with someone’s speech or religious beliefs.
It recommends criminally prosecuting providers and distributors of abortion pills through the mail.
And it recommends lending the full weight of DOJ in an immigration crackdown. DOJ would work with DHS to “obtain[] information about criminal aliens,” meaning undocumented immigrants, “in jurisdictions across the United States, particularly those inside ‘sanctuary’ jurisdictions.” It recommends that DOJ should overturn every favorable immigration decision issued by Attorney General Garland.
Finally, DOJ should assist in militarizing the border with DOD and a federalized national guard. The military would be given law enforcement authority. That has never been done. Under the Posse Comitatus Act, it is unlawful for the military to engage in domestic law enforcement. Such authority requires the President to invoke the Insurrection Act, based on a recommendation of the Attorney General. DOD would be loathe to cross that bridge. It could seriously undermine the morale of the military. Our troops are trained to fight, not to arrest men, women and children seeking to enter the United States.
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The DOJ chapter relies on tabloids and misinformation to justify undermining DOJ norms. It rests on the conspiratorial views of the right. As with the rest of the report, the plan to politicize DOJ is based on distortions claiming that DOJ is politicized. The report follows a well-worn authoritarian path, seeking radical change by demonizing institutions to subvert long-standing principles while couching such radicalism as conservative. That approach is less pronounced in the chapters on the other national security agencies, but as will be discussed later it is present and raises serious concerns.