The Just Security Podcast

Politicization and Weaponization of the Justice Department in the Second Trump Administration

• Just Security • Episode 104

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In just his first six weeks in office, President Donald Trump has issued more than 80 executive orders and other actions, many of them targeting the federal workforce and the structure of the federal government. 

Just Security’s Co-Editor-in-Chief, Ryan Goodman, recently published a timeline of actions that highlight the alarming level of politicization and weaponization of the Department of Justice under the second Trump administration. Politicization includes the misuse of the Department’s powers for political purposes rather than the independent and impartial enforcement of the laws. Weaponization includes a deliberate and systematic misuse of the Department’s powers for political or personal purposes and in defiance of the rule of law. 

Goodman discussed the timeline with Just Security Senior Fellow Tom Joscelyn and Mary McCord, Executive Director of the Institute for Constitutional Advocacy and Protection (ICAP), Visiting Professor of Law at Georgetown University Law Center, and former Acting Assistant Attorney General for National Security at the Justice Department. 

Show Notes: 

Tom Joscelyn: Welcome to the Just Security podcast. I'm Tom Joscelyn, a Senior Fellow at Just Security. It may be hard to believe, but the Trump administration is just several weeks old at this point. So much has happened in those weeks. In his first month or so in office, Trump issued nearly 80 executive orders. Members of his administration have supplemented his executive orders with memorandums aimed at personnel and policy. The Department of Justice is one of the government agencies that's in the Trump administration's cross hairs, and this week, Ryan Goodman, Just Security’s Co-Editor-in-Chief, published a timeline of actions taken by the administration to politicize and weaponize the DOJ. You can find his timeline, which he co-authored, at the Just Security website. 

In this episode of the podcast, we're going to discuss Ryan's timeline with the author himself. We are also very pleased to be joined by Mary McCord, who is the Executive Director of the Institute for Constitutional Advocacy and Protection, otherwise known as ICAP, and a Visiting Professor of Law at Georgetown University Law Center. As many of our listeners almost certainly already know, Mary has a wealth of experience. She was the Acting Assistant Attorney General for national security at the DOJ from 2016 to 2017 and Principal Deputy Assistant Attorney General for national security from 2014 to 2016. Previously, Mary was an Assistant U.S. Attorney for nearly 20 years at the U.S. Attorney's Office for the District of Columbia. Suffice it to say, folks, Mary knows how the DOJ is supposed to work.

So, let's jump right into it. Ryan, this week, you've got this piece, this timeline, on how the second Trump administration is politicizing and weaponizing the Department of Justice. Let's get right into it. How do you define politicization, right? This is a tricky topic. You know, every administration comes in with its own policy agenda, with its own ability to sort of, its own currency to change things up, but politicization is a word that carries with it a certain connotation or a certain meaning, and how did you define it as you were going through and compiling this timeline?

Ryan Goodman: Yeah, thanks. It's a great question. In fact, at the beginning of the project or in its earlier stages, Andrew Weissman actually gave me feedback, and part of his feedback was, you needed to find political politicization and weaponization rather than just banding them about as a term, and then to see what, you know, your data fits or doesn't fit the definition. So yeah, politicization, we ended up defining as the misuse of the department's powers for political purposes. You could end it there, but political purposes, instead of using the department for an independent and impartial enforcement of the law. So, by political purposes, it means basically serving the president, for example, in his or her political ambitions, personal political ambitions, going after their perceived political enemies, and the like. There are other ways to misuse the department, but that's basically the idea.

And just to get at a part of that, and we can dive into this a little bit deeper, if you'd like to, I do think of it as separate from serving the president’s agenda. So, the president’s agenda might be, we're going to have a massive, huge amount of our focus and resources on immigration crackdowns, and there's nothing inappropriate there. And that really is that people have to sign up for implementing whatever is the president’s agenda, even if they personally disagree with it. And so, that's not a — to me, is not the misuse and not a version of politicization. 

Tom: Yeah, I think you make that point in the piece in your timeline. For example, you quote from this memo that the new Attorney General, Pam Bondi, issued on her first day, in which she demanded that the DOJ attorneys under employment now zealously advance, protect and defend the interest policies the United States as determined by President Trump. But you also indicate that that doesn't necessarily mean that they're being ordered to politicize the Department of Justice, at least not when it comes to that memo. I think that's what you're getting at.

Ryan: Exactly. So, if you look at the memo in its own terms, I'm not sure that it would qualify for politicization, because it could be implemented in a good faith way that would just simply be in accordance with what I described. On the other hand, if it is not implemented in that way, it could be very abusive. So, what does it mean, according to this Justice Department, that people would act on their political views when this is a Justice Department that seems to think that, and a White House, that seems to think that merely working on January 6 prosecutions is a sign that a person is politically opposed to Donald Trump, or if the person, let's say, volunteered to work on a January 6 prosecution or investigation rather than was assigned to them, then that would be an indication of their political beliefs. So, that is a misuse of what we generally think of as where you draw the line between somebody's politics and service to the country to work on pure criminal matters. So, that, to me, was a difficult case and we put it in there. It's the only instance in which we actually say, we're putting this in here for completion of the record, because it really does depend upon how it's used in context.  

Tom: So, before we turn to Mary, you got one other term I think you can offer a quick definition for. Just like politicization, you've got weaponization, which is a bit different, and it's not exactly the same thing, as I read your timeline. Maybe you can just delve into that for a second and give people a crisp definition of that. 

Ryan: So, weaponization, in my mind, could include politicization. So, it could even be a subset, but it's definitely more of a deliberate and systematic policy. It really is trying to use it as a weapon of sorts, in an agenda. And the idea here is that it doesn't just have to serve political purposes. That's the other piece of it. So, it could be that it's about retribution, or other ways of which the Justice Department's powers could be used to intimidate others that are violations of the rule of law. So, that's partly why it's more expansive — in one regard, not just serving political purposes — but more narrow in another regard, that it really is using it in a systematic manner. 

Mary McCord: Can I just chime in on that, to give an example? I think of weaponization also as using the tools unique to the Department of Justice, right? The ability to open a grand jury investigation, to issue subpoenas, to do search warrants, to threaten prosecutions, those kind of things, in a way, as Ryan, you just said, that might be for pure political purposes, but also might be for retribution, or might be for sort of leverage. So, think about various examples we've seen, and that latter point would be what we've seen with respect to moving to dismiss without prejudice the case against Eric Adams, right? That is weaponizing your authorities to get what you want, which is cooperation with federal immigration enforcement, by hanging this sword of Damocles over the mayor's head, if you don't give us what we want that is unrelated to criminal investigations or criminal prosecutions. So, it's not like a cooperation agreement with someone who admits guilt and agrees to cooperate in the hopes for a reduced sentence. This is just abusing, I think, weaponizing your authorities to get some other thing you want in a way that is improper violation of ethics and bar responsibilities, and possibly even unlawful and, in the context of federal immigration law, possibly even commandeering in violation of the 10th Amendment.  

So, I think you can, you know, when you start to put the examples on it, Ryan, to your point, you start to see the different ways that these unique tools that other private sector people, litigants, don't have access to, how they can be used in multiple purposes, for multiple purposes.  

Tom: So, let's get into that a little bit. Mary, what do you think, so far, what's the most troubling to you about all this? What do you find the most concerning about these moves to politicize or weaponize the Department of Justice?  

Mary: So, I can never rank things when there's a bunch of things that are bad or a bunch of things that are good. I mean, when my kids were young, they'd say, what’s your favorite this I'm like, I don't have favorites. I just don't. Okay, so I don't have a favorite worst thing. But I do want to give an example. I mean, I think what we've seen is politicization and weaponization both within the department and directed to those outside of the department. And I think they're both very, very problematic. But when you were talking with Ryan a moment ago about sort of, what do we mean by that? And especially, you were referring to one of the February 5, Pam Bondi, that's the Attorney General Pam Bondi, memos that is talking about zealous advocacy, that, you know, a facial challenge to that might fail, right? Because it could be looked at as just simply a directive that, frankly, in my nearly 25 years at DOJ, I felt like it was my obligation to zealously advocate, and if I had a moral problem with a case, I might ask, like, for example, I happen to be personally opposed to the death penalty. I'd rather not work on any advocacy about the death penalty. I had no problem working on criminal prosecution, on all the other parts of that, but didn't want to, really, be advocating for the death penalty. And the department is big enough to accommodate those kind of things, but I understood if I were forced to do it, it would be, you know, I'd have to make a choice, do I do it, or do I leave? 

 So, I think here, what will determine whether this memo itself is more politicized than it would appear on its face comes with how it's implemented and what we're hearing. And let me just tell you what I heard on cable news on Monday night when I was sort of flicking through, channel surfing, right, to get some diversity of viewpoints. Our Attorney General, Pam Bondi, was on Sean Hannity's show on Fox News, and this is what she said. This is a rough transcription, so if there are one or two words off, my apologies. This is one of those, you know, rough transcriptions that comes out after something's been recorded. But I was actually taking notes in real time as well, and this is entirely consistent with my memory and my notes: “There are a lot of people in the FBI and also in the Department of Justice who despise Donald Trump, despise us, don't want to be there. We will find them, because you have to believe in transparency, you have to believe in honesty. You have to do the right thing and right now, we are going to root them out. We will find them, and they will no longer be employed.” 

She then went on to repeat that with different types of phrasing two or three more times during her interview, and also said that she and Kash, meaning Kash Patel, the FBI director, that she and Kash talk about this all the time. “We knew it was bad, but we didn't know how bad.” And then she said, “We are now hiring good lawyers.” So, if we are wondering what it means to zealously advocate on behalf of the United States government, and then you hear that she thinks there are people that have to be rooted out and fired from the Department of Justice and the FBI because they, in her words, “despise” Donald Trump, I think, you know, we get a sense of what this type of memo might be actually about, right? If you have different political views, not whether you're willing or not willing to advocate the position of the government in defense of its policies in litigation, but whether your political views might be different than the political views of the leadership of the Department of Justice and the White House, that that is going to be something that's disqualifying. 

And I also would say, we're also seeing it in the other directions that are coming out of the Department of Justice. I already mentioned the Mayor Adams case, right? This is a situation where the very experienced prosecutor, the interim U.S. Attorney in the Southern District of New York, felt that ethically, she could not dismiss a case without prejudice under the criteria that she was being directed to do by the Acting Deputy Attorney General Emil Bove. She explained herself why the case was, you know, based on substantial evidence, in her view, of the crimes charged, and it would not be proper to do a dismissal without prejudice, essentially, as part of a quid pro quo. And then she was told, do it or resign. I mean, this is basically the same thing as being fired, and she resigned. We saw that same ultimatum put to attorneys in the public integrity section when they were told, one of you needs to go dismiss this case without prejudice. And they apparently all got together and thought about resigning, and ultimately one person agreed to do it. But again, the direction was do it or be prepared to resign.

And we saw the same thing when Emil Bove again, the Acting Deputy Attorney General, directed the criminal chief of the U.S. Attorney's Office in the District of Columbia to issue an order to a financial institution to freeze assets. That's a seizure. That's a Fourth Amendment event based on, you know, some investigation that he wanted to take place into whether environmental grant funds had been dispersed unlawfully before the end of the previous administration. She said there was no probable cause to do that. She would ask the bank about potentially pausing these funds while they consider an investigation, but she had no probable cause to make any sort of order of it, and as she was given the same ultimatum — do it or be fired. And when you put these things in context, knowing the facts behind these instances, it doesn't look like this memo is just about good faith representation of the Department of Justice. It seems like it's, you know, do our bidding, that sometimes is going to be politically motivated, or you're out. 

Tom: Ryan, I was thinking that maybe we want to transcribe Mary's remarks there and update your table with an addendum from Mary saying, this is why the charitable reading of the memo may not work as it is in the table. I mean, I think she just some summarized all that contextual evidence, which I know you're well aware of. I just was, I think she just did a great job of saying why somebody would take that memo, or could take that memo, and read it in different light. 

Ryan: Yeah, in fact, you know, there's one other entry that we did not include. So, we have 26 entries, and I think we should actually include it. We can easily update the memo. There's been an update in one of the cases, and it adds exactly to what Mary said. There was a December New York Times report that for senior positions in the Pentagon, the Trump transition team was asking individuals things like, who won the 2020 election, and what is your view on January 6, and they felt like the only answer was the MAGA answer. And if they didn't, and those who didn't give the answer, the MAGA type answer, did not get the job. And then in February of last month, in the Washington Post, Ellen Nakashima, Warren Strobel, have a piece — and it's very similar, and it's about law enforcement and intelligence community candidates for office. And according to them, the questions asked were things like, who were the “real patriots on January 6,” and “who won the 2020 election,” and “who is your real boss?” And I think just exactly with what Mary said, that goes into their equation, and if the answers aren't the right one, then somebody's got the wrong politics, the wrong political beliefs. Look at them. They think that Donald Trump didn't actually win the 2020 election. They think — they have negative views about him. And that's how that those words that look fine on paper in context are quite the opposite. So, I take that on board for sure. 

Tom: Yeah. I mean, just along those lines, you know, one of the first executive orders that Trump issued directed the new Attorney General to remedy the “unprecedented third world weaponization, a prosecutorial power of the Biden administration.” Now I read that, and I've read other comments that have come out, and really the only examples I can think of to justify that executive order are rooted in sort of Trump's own grievances with the justice system because of his own actions, for example, hoarding documents in Mar-a-Lago in efforts to overturn the 2020 presidential election and then to sic a mob on his own vice president on January 6. I can't really come up with any legitimate justifications for that executive order. I just wanted your thoughts, Mary, as someone who was in Department of Justice, who knows this world very well. Am I missing something? Is there something I'm missing here that can justify all this? And what's your reaction to that, as a former official here from this world, that basically Trump and his cronies are sort of, you know, constantly attacking? 

Mary: It's so interesting because the executive order and then Pam Bondi’s directive on February 5 about implementing the executive order on weaponization, I mean, they both are basically characterized as ending the weaponization of the Department of Justice and the federal government, and their implementing way of doing that is by weaponizing the Department of Justice and the federal government. And so, it's just kind of mind boggling when you try to wrap your head around it.

But I think we're seeing — so, first of all, to your point of, is there, you know, are you missing something? I think no. And notably, when Trump talks about weaponization, he even added this in his address to Congress, right? I've been the one who's been the victim of weaponization. Recall that the Special Counsel Jack Smith, who was appointed to investigate both January 6 and unlawful handling of national defense information, classified information at Mar-a-Lago, recall he was not the only special counsel appointed during the last administration by Attorney General Merrick Garland. We also had special counsel Robert Hur appointed to investigate whether President Biden, while a sitting president, had unlawfully handled any classified information, stored it in places where it shouldn't have been. He also appointed a special counsel to investigate President Biden's own son. That investigation resulted in criminal charges, right? So, it's hard to think of weaponization when you've seen — clearly, all of those cases that I just mentioned, super high profile — but it's hard to imagine that that means that the department had been weaponized when it was pretty even handedly, you know, making these appointments in politically sensitive investigations where a special counsel was warranted under the regulations that govern special counsels. 

So, there's no recognition of that, right? It's all one sided, right? It was weaponized because it was used against me, Donald Trump, and against the people who were engaging, and listeners can't see my fingers, doing you know, air quotes who were engaging in “peaceful protests.”

Tom: That’s usually Ryan's move, by the way. Ryan's usually the one who uses air quotes.

Mary: Yeah, air quotes, “the people who were engaging in peaceful protest on January 6,” which, of course, we're not idiots. We've all seen the footage. We've all heard what was being said that day. We've all seen the social media bragging about it, and you can't fool us just by saying it was a peaceful protest, so I think you're right that that’s what it's focused on. 

And I think this is, really, we're already starting to see how this is manifesting itself. And there's a lot more to come, and the more to come really gets to both of the things we started out this podcast on politicization and weaponization. So, already, all of the Jack Smith prosecutors were fired, right? They were fired without any legitimate cause. You know, there's going to be the potential for litigation over those firings. Already, 25 or 30 prosecutors of the January 6 attackers were fired. Now, these were probationary attorneys, which means they're in their first one or two years. But again, no cause provided, no reason otherwise, other than, you were on the Jack Smith team. We've seen FBI fired for various reasons, as being seen as disloyal to this president. We've seen people reassigned, high level people, including a former colleague of mine who I was very close to and depended on when I was both the Principal Deputy and later the Acting Assistant Attorney General in the national security division, and that was the Deputy Assistant Attorney General who had been in that division doing counter-terrorism and counter-intelligence work since the division was created in 2006 and had even been doing that work before the division was created, when national security was handled by the criminal division. He knows every single counter-terrorism case post-9/11. He knows every significant counter-intelligence case. He is the institutional memory. He is the one that makes sure that the national security laws are evenly and fairly implemented across the country, across different fact patterns, right? He's just a wealth of knowledge. I've seen him talk back to anybody, regardless of their party. I mean, he is not afraid to say, that's a bad idea. Here's why, or here's how we did this back, you know, in such and such year, in such and such case. 

And he was moved into this newly created working group on sanctuary cities, right? Fine if they want to create it, to Ryan's point of sanctuary cities and immigration is going to be a priority area, and you want to create a working group to study it, knock yourself out. But to take people like him and like others, heads of civil rights divisions, more than probably 40-year Deputy Assistant Attorney General in the criminal division who handled all of our mutual legal assistance, treaty requests with other countries, right, when we need evidence from them, they need evidence from us. He handled all of our relationships when we wanted to extradite somebody here to prosecute or we wanted to do a lure operation, to lure somebody here. I mean, he had the relationships, right, with our foreign counterparts and the State Department counterparts and all of these things. And just like my colleague in NSD had the relationships with our entire intelligence community and all of the interagency and also his counterparts overseas, like, you can't replace that.  

And so, what is that, if that's not politicization or weaponization when you move those people, because guess what my colleague did? He was involved in the Mar-a-Lago case. He was involved in signing off on that search warrant, at least as alleged, right? So, what is that, if that's not retribution. And then, of course, I haven't even mentioned the FBI, where, in addition to firings, we had the survey that had to go out to all employees ­— not just agents, but all employees. And if people don't realize that there are many, many people who work at the FBI who are not agents. They're analysts, they're, you know, administrative staff to answer, you know, did you have any involvement in investigating any of the January 6 cases? Again, the attackers’ cases, not even the case against Donald Trump. And what was the extent of that? How long did you do it? When was the last time you did it? 

And that was originally requested as part of a memo called “Terminations,” and it was clear from the Acting Deputy Attorney General again, Emil Bove, that this would be used to make decisions about personnel actions. So, we are seeing this already, and we're not even yet to the things that Pam Bondi has in her memo about how she's going to implement this, right, which is, you know, looking into potential other types of investigations, even criminal investigations, against some of those who — at least the leadership of the Department of Justice, consistent with the current president — believes have wronged him in the past. 

Tom: So, you know, along those lines, there's another troubling statement that came out from the interim U.S. attorney Ed Martin, which I know you both are well aware of this statement. Remember, the Associated Press refused to go along with President Trump in calling the Gulf of Mexico the Gulf of America and the administration, which you know, MAGA and the administration are supposedly the defenders of free speech, but of course, they very quickly turned against the Associated Press for not going along with this Orwellian turn of phrase from the president. 

And Ed Martin, the interim U.S. Attorney, was very quick to jump to President Trump's defense in this in a sort of an odd way, because it didn't really involve, far as I could tell, the Department of Justice, or anything they should be doing. But he issued a statement, and I want to emphasize, I brought it up here so I could read it very carefully, “As President Trump’s lawyers” — and by the way, they corrected the apostrophe on the “s” in the second version of statement — “As President Trump's lawyers, we are proud to fight to protect his leadership as our president, and we are vigilant in standing against entities like the AP that refused to put America first.”

Now, I want to turn to both of you for reaction that first, Mary, but I find multiple parts of that statement to be… troubling is not the right word. It is egregious in so many ways. But let's start with the first part of it, Mary, because I thought, I thought of you when I was preparing for today, because you've got to have a reaction to this. Before the comma, “As President Trump's lawyers,” what's wrong with that? 

Mary: So, the U.S. Attorney, he's nominated, but he still had to take an oath even to serve as the Acting U.S. Attorney, just like every prosecutor at the Department of Justice, just like anyone in the federal government who, as part of their job, has to take an oath, that oath is not to the president. That oath is to the Constitution, and the Department of Justice is not the president's lawyers. He has White House counsel to be his lawyers with respect to his official acts, and he can have personal counsel to be his lawyer with respect to personal things. 

 The Justice Department lawyers, they work on behalf of the United States of America. Every time I went into court, I would say my name. I was there on behalf of the United States. Never I was here on behalf of the president. And you know, to your point about why was DOJ involved? Why is he even saying this? I think we tend to think of U.S. attorneys and Acting U.S. Attorneys primarily because of their criminal work, but there is always a civil division side in every U.S. attorney and, of course, the main justice civil division, as well as the civil division sides of the U.S. Attorney's offices, do defend the the federal government when it is sued. So, it's DOJ lawyers, right, who will be defending against this Associated Press lawsuit. And, you know, I guess this is why he felt that he wanted to comment about it. 

So, first, not the president's lawyer, but second, this is just exactly what you don't do as a Department of Justice attorney, right? You don't comment about cases. You don't disparage the other party, whether it is a defendant in a criminal case, or whether it is a civil complainant who is suing the government, or whether it's a civil defendant. You don't disparage them in the press. You speak through your pleadings, and in rare occasions, you will hold a press conference to help educate and inform the public about what is happening on your case, what a judge just ruled, that kind of thing, who's just been indicted. But you don't get out front like this, and for so many reasons, it's unethical. It's in violation of most professional responsibility rules. It's certainly in violation of Department of Justice guidance, and it sends an absolutely horrible, horrible message to the American public about who the Department of Justice is and what its role is. And it's a horrible message. It's also a confusing message. 

Tom: You know, just to throw a quick add-on to that, what was striking to me, you know, somebody who wrote up and worked on the January 6 committee's report, is how the attitude of the Department of Justice officials under Donald Trump in late 2020 and early 2021 was exactly the opposite of Ed Martin's attitude. If you think back to Acting Attorney General Jeff Rosen, Deputy Acting Attorney General Richard Donahue, several other officials within the Department of Justice, when Donald Trump came to them and asked them essentially to be his personal lawyers, they said, no, the Department of Justice doesn't represent you. We’re not your personal lawyers.  

And that's kind of what I was thinking about here when I said, why is Ed Martin commenting on this, because he was so quick to jump into the fray and to comment on this as if he was acting as President Trump's own personal lawyer. And I think that that's a sign of how things have shifted here, right? He, you know, Trump has gone from having people who are loyal to him, people who are his own picks lead the Department of Justice, but drew the line at using the Department of Justice for his interests, his own political interests, and his own interests, right, to a place now where we are making sure that the people in charge — Trump is making sure the people in charge — won't draw that line, and in fact, are blurring the two. Ryan, did you have anything to add on that? 

Ryan: Just that in the nomination hearings for Pam Bondi, she was specifically asked this question, I think it's by Senator Coons, which is, who do you serve? And she answered it correctly. There's only one appropriate answer, and the answer was, I do not serve the president United States. I serve the Constitution. And time and again, she also reiterated this idea that the Department of Justice is independent. It will make its own determinations on application of the law, and that's apparently Mr. Martin's boss. Now, whether or not she just said that in the proceedings to get through the nomination process is a different matter. And it also goes back to something you had said earlier, Tom, when you referenced, for example, the EO on weaponization. And you emphasized it, and I think you probably did for this point, the EO directs the Attorney General to implement the weaponization program, and there are other EOs that do the same thing. It is the opposite of what Pam Bondi said in a hearing. What she said is the right thing, but the action doesn't seem to be following through with that. 

Mary: And the executive order on the pardons, of course, the president is the one who has the authority by the Constitution to issue pardons and commutations, but then it directed the Department of Justice to dismiss all pending cases against January 6 attackers, right? So, again, total lack of independence — I'm telling you exactly what to do in an ongoing criminal matter. And you're right, Ryan, like, she has so far — certainly, what she testified at her confirmation hearing was, you know, consistent with independence, although she was not able to answer some of the questions put to her along the lines of, when the day comes and that day will come when your loyalty is tested by the president, what will you do? And of course, she demurred. And this is actually, you know, a hearing where on day two, I testified about the very things you were raising — the need for independence of the Department of Justice, the need for her to maintain the no contacts policy between the White House and the Department of Justice, which basically is a policy that has existed ever since Watergate under administrations of Republicans and Democrats to make sure that the president does not direct anything that has to do with investigations or prosecutions by the Department of Justice, and then also that she would potentially need to recuse from matters where her, because of her previous representation of the president in defending against the first impeachment proceedings where it could be perceived that she has a conflict, she should recuse. And then we saw, you know, it's pretty obvious that contacts policy is no longer in play, because there's been so many of these directions, as you indicated, Ryan.

She has, though, typically been much more careful, I would say, than Ed Martin, notwithstanding what I read to you that she said the other night about rooting out those who just apparently despised Donald Trump. But she has usually said things like, our job is to defend the president’s policies and things like that. She's usually had that piece in there, unlike Ed Martin, who I think is just not very savvy and is, you know, far more political than she is. If you just look at his history and background, he's also never been a prosecutor. He has no, by everything I've seen so far, he doesn't really understand what that job is, much less, like, the constitutional restrictions on his power or who he took his oath to, but he's just seems to have flouted things that, at least, I think she's trying to sort of color between the lines, and he just hasn't. 

We've seen that in other instances as well, when he's sending, you know, putting out so many things over social media and making public his own letters, for example, to Elon Musk about, oh, we’ve seen that, you know, some of your DOGE employees are being harassed and we won't tolerate any threats. And I think he said something — and I'm very cautious about being clear when I'm not directly quoting because I don't want to be accused of ever trying to embellish what something somebody said — but he said something along the lines of, we will chase them to the ends of the earth to find those who would threaten public employees. 

Now, I am as big of an advocate for prosecuting threats, true threats, against public employees as anybody. I think the instances of threats and intimidation has just skyrocketed over the last several years to the real, real harm of people you know who, their families get threatened. They have to, you know, buy security for their homes, or sometimes move. They suffer emotional distress, on and on and on. But, you know, the right thing is not to come out with those types of public statements, just in a way that suggests just simply pandering to Elon Musk because he is so close to the president. 

Ryan: Yeah, and just to jump in, the exact quote is even worse.

Mary: Okay, well, I think I'm so glad you're there, like, probably googling things as I’m speaking.

Ryan: It's in my timeline. 

Mary: That's right, it is in the timeline, which I have on this other screen. 

Ryan: Yeah, so, it’s “if people are discovered to have broken the law, or even acted simply unethically, we will investigate them, and we'll chase them to the end of the earth.”

Mary: Yeah, and this is where we get to his, like, lack of experience. Guess what? You can't just investigate people because you think they weren't ethical. If it's a DOJ lawyer, you can refer them to the Office of Professional Responsibility for an investigation, but it's not a prosecutable offense. 

Ryan: Yeah. 

Tom: And just to pile on Ed Martin with one other little thing, let me correct what I said. He actually did not — the DOJ did not correct the abuse of apostrophe in that statement direct to you. 

Mary: Oh, is that right? 

Tom: So, it's actually still so people don't know what I'm talking about. It says, “As President Trumps” lawyers,” “Trumps” is used plural with the apostrophe on the end. So just to your point about Martin not being very careful, I think he's not very careful in his basic use of language, either. 

But, you know, this sort of brings me to the last topic I want to discuss really quick before wrapping it up, which is, it's been peppered throughout this conversation. It's an issue that all three of us have worked on, which is how the Trump administration, President Trump, really politicized the January 6 prosecution, you know, not on his own regard, but of the individual defendants, writers and extremists who attacked the Capitol and attacked police. And you know, one of his first executive orders was pardoning almost all the January 6 convicts and defendants, providing commutations to a small subset of them. And you mentioned it, Mary, earlier, and I think it's obviously on Ryan's timeline, that the Acting Deputy Attorney General, Emil Bove, has moved to fire prosecutors and FBI agents who investigated and prosecuted these cases. 

And I think, to me, the part of this that's probably the most Orwellian, if I could rank order things myself, Mary, about the number one thing that bothers me is how this president and this administration have now turned the January 6 story inside-out — they have turned the villains of the story, or the people who attack cops who tried to and did successfully interrupt the peaceful transfer of power for the first time our nation's history, into the heroes or the martyrs of that day, the people who are to be lionized, the victims of the supposed prosecutorial overreach, and the DOJ prosecutors and FBI agents who just did their job and enforced the law are now the villains. This strikes me as incredibly dangerous in terms of going forward for how the Department of Justice and the FBI are going to supposedly enforce the law. If you're starting from this perspective, if you're starting from a world in which the guy who cases an officer in the neck and gives him a heart attack is a victim of the criminal justice system, and not the villain, that the people who planned to attack the Capitol beforehand, made plans, like the Proud Boys, are now the victims of the government and not the actual perpetrators of the attack and the crimes — it strikes me that we're in very dangerous waters here, very dangerous territory. I just want to know if you had any comments on that before we head out. 

Mary: Sure. I mean, obviously it's just an absolute disgrace to have created this false narrative and issued these blanket pardons and commutations and dismissals. It's just, you know, for the law enforcement, the 140 officers who were actually assaulted and five, who you, know lost their lives, either directly or as a result of suicide after that, I mean, this is just such a disgraceful thing to do that, and is so disrespectful to them. It undermines the work of the judges, you know. Every judge in the District of Columbia District Court handled these cases, almost 1,600 judges appointed by Republicans, Democrats and Donald Trump himself. Not one judge ever questioned, like, the merit of the prosecutions in terms of whether they were politicized or not. Almost every single one of them resulted in guilty verdicts after trial, and many resulted in guilty pleas.  

And there were, you know, there was never any question about this being politicized at all by all of these judges. So, it completely devalues and undermines their work and the legitimacy of how they saw to it that they needed to ensure that every defendant had their constitutional rights upheld. So, they, you know, had attorneys if they couldn't afford them. They had attorneys appointed for them. They had the right to file all of the pretrial motions and have due process of law, all of these things, right? They were afforded all of these benefits. So, there's all of that damage it does to the system. And also, you know, particularly in the wake of those pardons, what we're seeing the Department of Justice, you know that damage to the institution of DOJ and that politicization that we've been talking about for this whole podcast?

But then there's the threat outside in the world, and I'm very worried about that. I mean, already, this was so emboldening, particularly to people, like, really everybody who got pardoned. Although some, to their credit, are remorseful for what they did, and I don't worry that they're going to go out and sort of abuse this. But what we saw immediately is, you know, the leader of the Proud Boys, Enrique Tarrio, the leader of the Oath Keepers, Stewart Rhodes, you know, immediately turning to try to weaponize this. We saw them, you know, going to Capitol Hill. We saw them talking about, just recently, they had a little press event outside of the Capitol to talk about how they're going to be suing the Department of Justice for hundreds of millions of dollars for these wrongful prosecutions. We've seen an uptick in recruiting by the Proud Boys and other extremist groups. We've seen more demonstrations, marches, showing up in various towns and cities. I've been on the phone with different city leaders where they've had branches of the KKK who are out leafletting in their communities, and yes, they have a constitutional right to leaflet. But what I'm just saying the uptick is there. We've heard of militia groups offering to assist the Department of Homeland Security and ICE and Customs and Border Patrol with mass deportation plans. So, there's all of this emboldening. And so, I'm worried, you know, and feeling like if we do something that violates the law, so long as we're doing it in furtherance of Donald Trump's goals, we're probably going to get a pardon, because we just got one. Now, never mind that Donald Trump can only pardon for violations of federal crimes, and some of the things they may end up engaging in would violate state law, but I mean, that's just a really dangerous place to be when that's the way they're thinking about things. And again, not necessarily everyone, but some certainly are. 

 And then I'm also worried on these civil suits. Of course, there's no merit to any of these civil suits. They haven't been filed yet, except one that I'm aware of in the Northern District of Texas. Normally, when someone sues the Department of Justice and a particular prosecutor or lawyer, the Department of Justice will defend that prosecutor and lawyer, and they are really obligated to do that. If the prosecutor or lawyer was doing their — what they're being sued for, was doing their job, right, within their official acts. I don't know what this Department of Justice will do if and when the Proud Boys sue the prosecutors who prosecuted them, and that is something I'm also worried about. 

Tom: Ryan, do you have anything to add?  

Ryan: Just a few add-ons, and then maybe something more optimistic.

Mary: Hopeful? 

Ryan: Yeah, not that much.

Tom: Well, I do have a reputation as a Debbie Downer everywhere I go these days, so that's about right.

Ryan: So, just in terms of how crooked the weaponization is, when Attorney General Bondi steps in on their very first day in office and passes the memorandum, which is the memorandum on weaponization, and sets up the weaponization working group, who does she put on the working group? Ed Martin.

Mary: Right. 

Ryan: Who we've been talking about, and who is Ed Martin? He's also somebody who is defending January 6 defendants, which, it's fine to be a lawyer defending them, but then that individual should not be on the weaponization committee, a working group to be going after FBI agents and the like and Jack Smith. And who else does she put on there? Emile Bove, and he's the Acting Deputy Attorney General who was formerly President Donald Trump's defense counsel. And when he will be replaced, in all likelihood, by Todd Blanche, after he's confirmed, Todd Blanche will be the Deputy Attorney General who was President Trump's criminal defense attorney. 

 Yet those are the people sitting on the weaponization group, and you would think that they would, at minimum, have to be recused. But who's the person who's in charge of recusal? No longer the person who's been there for decades, as my understanding as a career person, but instead, Emil Bove has replaced that career person with two political appointees of people with very little experience as well. So, that's how crooked the system is right now. 

And then, in terms of the green light that's being given to these militia groups and the like, is another part that's on the timeline, which is in four different cases now, the Department of Justice has expanded their interpretation of the pardon to also apply to crimes that have nothing to do with January 6. And in all four cases, it was issues involving things like possession of firearms.

Mary: Including, like, assault-style rifles and a grenade. Like, serious arsenals of weapons, yes. 

Ryan: And the individual with the grenades is also an Oath Keeper, and he didn't even just have grenades, he also had classified military documents. So, like, that has no connection whatsoever to January 6, yet they say, oh no, the pardon covers him too. What is that but a green light to brown shirt-type militia groups to think we are the, you know, the keeper of the faith for President Trump in order to carry out violent acts is, I think, the very strong message that that seems to be sending. 

Tom: That's not the hopeful part, right?

Ryan: To some extent, I think that President Trump has completely overplayed his hand, and so the January 6 pardons for everybody, including Oath Keepers, Proud Boys and those committing violence against law enforcement officers, do not sit well with the country, and there is strong bipartisan opposition to that in the public opinion polls. You know, the week before JD Vance on Meet the Press said, oh, but of course not, the pardons would not extend to those individuals committing to violence against law enforcement, the day before, it was Speaker Johnson saying the same thing, and it doesn't sit well with parts of the Republican caucus. 

So, I do think that, to me, that's part of what's, in a certain sense, hopeful, in the sense that this is so grotesque.

Mary: That's an interesting, backhanded way to get to hopefulness. But, yeah, it works.

Ryan: Yeah. But there really is a, hopefully, a kind of an awakening that's bipartisan, nonpartisan, within the American public that thinks that this has really gone too far, and the whole weaponization as well, that people are very concerned about weaponization, but this is true weaponization in terms of what's happening.

Tom: Well, on that qualified hopeful note, we shall end this episode of the podcast. Ryan, thank you for putting together the timeline and keeping track of these events. It's a very important piece of work. I mean, there's just been a blizzard of actions in the first weeks of this administration. It's very difficult to keep over the target in terms of understanding what's going on and understanding, you know, how this administration is moving to really undo our institutions and remake the government in Trump's image. And of course, Mary, thank you for sharing your expertise. As always, I'm a Mary McCord fanboy, as I'm proud to say, having covered her work for many years, so I've always loved listening to her speak and certainly learn things today. And that's it for this episode of the Just Security podcast. Thanks for listening.

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Paras Shah

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