The Trump Administration’s Weapons of Congressional Intimidation
The Threat from Politicized Law Enforcement in Trump 2.0
The intense focus on whether President Donald Trump will defy a court order has diverted attention from a different front in Trump’s crusade for an all-powerful presidency—against the Congress. Perhaps there is so little expectation that Congress will defend its prerogatives that the new threat in this direction is easily overlooked. As constitutional scholars Daryl Levinson and Rick Pildes famously argued, we have a separation of parties, not powers, as Congress routinely elevates partisan commitments over defense of its constitutional responsibilities. Commentators have also criticized members of Congress for being “more concerned with their own reelection or their constituency’s interests than they are with the long-term institutional power of Congress.”
Whatever the reasons for Congress’s troubles, it faces a new and potent threat to the exercise of institutional independence. Donald Trump’s rejection of norms against a politicized Department of Justice provides him with the means of applying extraordinary pressures to keep Congress in line. He has voiced the threat of investigation and prosecution of congressional opponents, as have his appointees to senior department positions. In Trump 1.0’s strategy of amassing extraordinary executive power, Congress as a separated power is at risk of becoming an investigated power.
The Threats
To date, the Trump administration has targeted Congress most directly in challenging its constitutional duty to enforce federal statutes. This is most evident in its refusal to enforce the TikTok ban and in its direction to private firms that they can ignore the ban. It is also apparent, more broadly, in its widespread refusal to spend appropriated funds and in its gutting of congressionally created agencies and programs.
Another, and serious, threat to Congress looms in the background. Trump 2.0 has removed all norm-based barriers between the president and the exercise of Justice Department investigative and prosecutorial powers. And the president has installed attorneys in the most senior roles in the Justice Department on the basis of their personal service to him and his confidence in their personal loyalty. The president now directly controls one of the most potent constitutional powers—the machinery of law enforcement—which he can turn in the direction of Congress and use to quell opposition and punish dissent. The mere fear among members that he may do so could go a long way to subduing opposition.
Early signs are that the fears would be justified. A call for prosecution of members of Congress is not something new for the president. Just over a month before the election, Trump asked on Truth Social, “Why doesn’t the FBI raid Senate Democrat’s homes like they illegally raided Mar-a-Lago, where nothing was done wrong based on the Presidential Records Act. Menendez is a ‘piker’ compared to some of those Election Stealing THUGS.” After his election, in December, Trump announced that the members of the January 6 Committee “should go to jail,” while disclaiming the intention to direct any such prosecution. We may never know what his Department of Justice may have done, because President Biden pardoned January 6 Committee members and staff. Trump’s December threat to members of the committee was particularly notable for occurring while he was the president-elect, on his way to the White House.
Trump has also appointed to senior law enforcement positions officials and lawyers who are on the program—who do not need to hear directly from Trump but will pay attention to his direction from a social media post or public comment. His new FBI Director Kash Patel said last year that “once President Trump hopefully gets back in power, there’ll be an investigation into members of Congress who destroyed and withheld evidence from law enforcement agencies.” He declared that a Trump victory could lead to investigations of legislators who have committed “federal felonies” and “covered up the truth from the American people.” And he made it all quite graphic with a social media post in which he appeared to be “taking a chainsaw” to, among others, congressional leaders.
Since Trump was elected to a second term, his choice for U.S. attorney for the District of Columbia, Ed Martin, has sent threatening letters to Senator Schumer with demands that the Democratic leader explain what Martin alleges could be actionable threats against Supreme Court justices. He has directed a similar threat at a Democratic House member. And Martin’s conception of his investigative mission is bizarrely broad. Apparently, he thinks he can investigate those who “acted simply unethically,” not only those who may have broken the law.
Congress might reasonably anticipate that this administration may wish to do to its enemies what Trump believes they have done to him. In the New York falsification of documents prosecution, and in the January 6 and classified documents cases, Trump and his allies believe themselves to have been victimized by far-fetched, politically motivated theories of liability. Some critics of both the Bragg and the Smith prosecutions agree. While in recent years, “honest services” and other public corruption prosecutions have run into heavy resistance from the Supreme Court, prosecutors have not abandoned what the Court has termed constitutionally defective, “good government” theories of criminal liability.
Past as Prologue
Beware, Congress: The Trump Administration has its own conception of “good government,” infused with the spirit of revenge. This has not yet happened, but if Trump’s past is prologue, it is a genuine danger.
Trump has a history of using and abusing the legal process to win his battles and settle scores. As a businessman, he filed literally thousands of lawsuits to advance his interests. As a politician, he has resorted to litigation against press organizations as a tool of harassment and intimidation. Now, in an administration staffed with formerly personal lawyers and in full control of the Department of Justice, Trump has another and extraordinarily powerful legal weapon at his disposal.
It will not take much to send shudders of apprehension through the ranks of Congress. The options are varied, from the more subtle to the more direct threats: a strategic leak of a potential criminal inquiry, or the calls for an investigation by news or social media outlets allied with the administration, or a menacing social media post from the executive branch, including by the president himself.
The intensified politicization of the pardon power is another related tool for reward or punishment. Trump has brazenly put this power to work for his political purposes. Now that President Biden issued a pardon to protect the members and staff of the January 6 Committee, presidential pardons of sitting members of Congress have sanction in recent historical practice. In the hands of an administration wielding presidential powers with abandon, unconstrained by norms, the weaponization of pardons—dangling them or withholding them—is another no-holds barred means by which the president could undermine congressional independence.
Conclusion
In the early history of the republic, the political pamphleteers in the colonies argued that “the prime requisite of constitutional liberty” was an “independent Parliament free from the influence of the crown’s prerogative” and free from “being undermined by the successful efforts of the administration to … impose its will” on its members. The scheme of separated powers, adopted by the Framers in large part to provide for an independent legislature protected from these pressures, has been tested over time by changes in the structure of politics: the separation of powers, not parties, and by the trend over many presidencies “toward ever-more-powerful executives.” With new strategies of intimidation at its disposal, the Trump 2.0 administration may present an altogether new challenge.
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