Experts fear impact of deepening polarization and perceived political prosecutions

With high-profile political prosecutions and growing polarization dividing the country, legal experts and former Justice Department officials told NBC News they fear the United States has entered a destructive cycle in which presidents sue rivals in revenge.

Experts point to a series of developments in recent years as factors behind their warning. These include the multiple criminal prosecutions filed against Donald Trump after the 2020 election, the federal indictment of former FBI Director James Comey after Trump publicly requested it, and the public’s growing distrust of the Justice Department.

“What we don’t want to become the norm is for people to think, ‘OK, there’s a new administration, now everyone in the old administration is being prosecuted,'” said Berit Berger, a former federal prosecutor in New York. “It’s an incredibly dangerous cycle in which no one wins.”

A recent Pew public opinion poll suggests that Americans view the Justice Department in increasingly partisan ways. Since Trump returned to office, the percentage of Republicans with a favorable view of the Justice Department has climbed 18 points, from 33% to 51%, according to the survey. At the same time, favorable views of the Justice Department among Democrats fell from 56% to 28%.

Carissa Byrne Hessick, a professor at the University of North Carolina School of Law who studies the intersection of prosecutions and politics in the United States, said the investigations and prosecutions of several high-ranking officials during the Biden and Trump administrations have led Americans to suspect that the investigations are motivated by politics.

“I think it’s probably convinced the average American that these decisions are political,” Hessick said. “And it’s bad for the country, and it’s bad for the legitimacy of the criminal justice system.”

Hessick said reforms enacted after Watergate to build public confidence in impartial prosecutions are proving outdated and ineffective.

After Watergate, special advisors were appointed to investigate potential crimes committed by presidents and their aides to prevent abuses by the Nixon-era Justice Department, which targeted the president’s enemies in criminal investigations. And FBI directors were appointed to 10-year terms to maintain their independence from presidents and avoid illegal surveillance of politicians and political groups like those during the tenure of the late Director J. Edgar Hoover.

But over time, as partisan divisions have deepened, confidence in the impartiality of investigations by special advocates and other prosecutors has been shaken.

“Our old tools of trying to create an appearance of neutral, detached, nonpartisan decision-making by prosecutors don’t seem to be working,” Hessick said. “The way people talk about lawsuits is so polarized that it’s probably no surprise that they think there’s a whiff of politics involved in every lawsuit.”

Competing lawsuits

Trump and his fellow Republicans have argued for years that Democrats routinely use lawsuits to try to damage him politically. Federal prosecutors and state and local officials in New York, Washington, D.C., Florida and Georgia have filed charges against Trump, alleging crimes including election subversion, failure to turn over classified documents and paying hush money during the 2016 campaign to cover up a previous extramarital affair.

Trump has denied all accusations. A New York jury found him guilty of falsifying business records in the financial secrecy case. A Trump-appointed judge dismissed special counsel Jack Smith’s indictments alleging mishandling of classified materials in Florida, and Trump’s election subversion case was withdrawn after his re-election. A state election subversion case filed by the Fulton County, Georgia, district attorney is ongoing.

Last month, a federal grand jury in the Eastern District of Virginia indicted Comey on two counts: making a false statement and obstructing a congressional proceeding. Comey is accused of lying during a 2020 Senate hearing when he testified that he did not authorize a third party to speak anonymously to the media about an FBI investigation. Comey pleaded not guilty at his arraignment Wednesday.

A senior Justice Department official told NBC News that career prosecutors concluded there was no probable cause to obtain an indictment. Trump then pressured the acting head of the U.S. attorney’s office to resign and replaced him with Lindsey Halligan, one of his personal lawyers. Halligan, who has no prosecutorial experience, presented the case against Comey to a grand jury herself, which is highly unusual.

Neil Siegel, a law professor at Texas A&M University, said: “It seems obvious to me that the Comey case is politically motivated. »

He said the two federal prosecutions against Trump — for trying to overturn the 2020 election result and for retaining and hiding highly classified documents — were far more serious.

“Both of these federal cases against Trump were serious and involved allegations of some of the most serious misconduct imaginable in a constitutional democracy,” he said. “A sitting president likely violated federal criminal laws in order to overturn the results of a free and fair election and remain in office. »

Siegel added: “It is impossible for a president to attempt to steal an election and there are no legal consequences. »

But Trump won re-election by a larger margin in 2024 than in 2016, suggesting that he effectively discredited the prosecutors who investigated him in the eyes of a majority of voters.

Supreme Court decision

Legal experts point to a Supreme Court ruling last year as a key factor that they say emboldened Trump and could prompt future presidents to target their political enemies.

It states that the president has “exclusive authority over the investigative and prosecutorial functions of the Department of Justice and its officials.” He also endorsed an ambitious version of a conservative legal theory — known as the unitary executive theory — that classifies Trump’s oversight of the Justice Department among the official functions for which presidents enjoy absolute immunity.

Peter Shane, a law professor at New York University, argued that, as a result, the handling of prosecutions by current and future presidents, “no matter how corrupt,” is beyond the control of Congress and the judiciary, weakening the power of two branches of government long considered equal.

“Trump’s audacity was effectively authorized” by the court led by Chief Justice John Roberts, Shane said, referring to the prosecution of Comey and investigations into several other rivals since Trump returned to power in January. “Having written for many years about the possibility of unitary executive theory devolving into corrupt authoritarianism, I no longer need hypotheses to prove this point. »

Barry McDonald, a professor at Pepperdine University Law School, said the Supreme Court could revisit its immunity ruling and revise it if a president engages in clearly criminal conduct.

“If we got to the point where the court’s ruling appears to be facilitating some criminal behavior on the part of presidents, if the court had the will to ‘fix’ the problem, I don’t think anything would stop them from revisiting the problematic aspects of the ruling,” McDonald said. “We have already seen the court reverse problematic decisions. »

Berger, the former New York federal prosecutor, argued that prosecutors can increase public confidence in their work by being transparent about the safeguards they have to protect prosecutorial decisions from political influence. She also said Justice Department officials must make it clear that prosecutors will not be targeted if political leaders disagree with their decisions.

“The way to restore trust in the Department of Justice is through neutrality and transparency,” she said. “A lot of the guardrails were put up after Watergate, and I’m afraid we’re going to have to do a lot of work to rebuild them.”