Donald Trump is assembling his incoming administration’s Department of Justice while vowing to exact revenge on his political enemies. Two sources familiar with the president-elect’s thinking say that could mean an end to a Watergate-era department policy designed to keep career prosecutors from becoming the president’s henchmen.
These sources, who are familiar with the Trump legal team’s priorities, said they expect Trump to tear up guidelines stemming from the Nixon administration and reinforced by a July 2021 memo issued by Attorney General Merrick Garland that imposed strict limits on communication between the White House and DOJ.
“There’s no reason not to have them in place unless you have corrupt and evil intent,” said Jill Wine-Banks, one of the prosecutors during the Watergate trial.
“You don’t want a president directing who you’re supposed to look at. They can and should set policy, like spending additional resources on antitrust cases … but they don’t say, ‘Go look at AT&T,’” she said.
Any decision to revoke the current DOJ policy on limiting prosecutors’ direct interactions with the White House would be up to those nominated to lead the department, which at present include Pam Bondi for AG, Todd Blanche for deputy AG, Harmeet Dhillon for assistant AG for civil rights and Emil Bove for principal associate deputy AG. Bondi, who defended Trump at his first impeachment, has promised that “prosecutors will be prosecuted” and “investigators will be investigated.” Blanche and Bove defended Trump from DOJ special counsel Jack Smith and the Manhattan district attorney, both of whom they accused of inappropriate behavior.
Trump’s transition team did not respond to a request for comment.
Despite the Republicans’ accusations of a “weaponized” Justice Department, Joe Biden was prohibited from coordinating with prosecutors. From nearly the start of his tenure as AG, Garland issued a directive — with the approval of White House lawyers — that vastly narrowed the communication channels between the Oval Office and the Department of Justice.
“In order to promote and protect the norms of departmental independence and integrity … the Justice Department will not advise the White House concerning pending or contemplated criminal or civil law enforcement investigations or cases,” it read, leaving an exception for time-sensitive national security issues and the like.
A president can still speak to their AG, of course. But a commander in chief can’t abuse their power of influence by calling up a district’s U.S. attorney to demand they launch a particular investigation — or get slipped fresh details of ongoing cases that could protect his powerful friends.
However, that policy runs directly counter to Trump’s pick-up-the-phone style — one that was in public view when Trump attempted to flip the Georgia election results in 2020, personally calling a state elections investigator and the Georgia secretary of state, according to two people who have seen him in action.
The expectation is that Trump would flout the limitations early on.
“My guess is it’ll change,” said one source. “He’s a negotiator. He believes he can persuade people to do what he wants, what he thinks is the right thing to do.”
And there isn’t an expectation that Blanche, a former federal prosecutor, would push back on his boss’s style. After all, Blanche has developed a deeply personal relationship with Trump since becoming his lead defense lawyer in three criminal cases — switching his political affiliation and relocating his family from New York to Florida.
“I don’t think Todd Blanche is going to die on the cross of the Merrick Garland memo,” this source said.
Blanche did not respond to a request for comment.
Meanwhile, another source suggested the incoming Trump administration wouldn’t allow the DOJ to tell the White House what to do.
“I think it’s an irrelevant memo. Subordinates don’t bind superiors. I don’t think it’ll be reupped in its current form,” this second person said.
Sen. Sheldon Whitehouse told NOTUS that throwing out the guidelines would be “a violation of sort of basic proper justice hygiene,” noting that the memo would likely come up in confirmation hearings for Trump’s nominees should it become clearer that Trump would like to toss the norms.
“It’s got a long, long, long bipartisan history and it’s got obvious importance to the proper implementation of justice,” Whitehouse said. “We’re hearing some of the same things, and we’re going to continue to make those same points that have been good for many, many, many, many, many years.”
Another Senate Judiciary member, Sen. Richard Blumenthal, told NOTUS he’ll “definitely” ask Bondi about her independence from the White House during confirmation hearings, adding he’s asked the same thing of every attorney general nominee. “Watergate was a low point in degrading the Department of Justice and virtually destroying its credibility. Its reputation was rebuilt and then suffered another blow under the last Trump administration. And my hope is that the new attorney general will surprise us with her independence and integrity.”
The Republicans who’ll be questioning Trump’s DOJ picks, however, called Garland’s 2021 memo a hypocritical sham.
“The Biden administration loudly proclaimed their lack of politicization while simultaneously indicting President Trump twice in a flagrant abuse of power,” Sen. Ted Cruz alleged. “Hypocrisy is the tribute vice pays to virtue.”“The DOJ has been a plaything of the White House for the last four years, so I want that reversed completely,” Sen. Josh Hawley echoed to NOTUS.
A change in this policy would mark a profound shift in 46 years of standard practice at the DOJ, stemming from the Watergate scandal, when a back channel between the DOJ criminal division Chief Henry Petersen and the White House kept Nixon informed as prosecutors intensified their criminal investigation.
“He wasn’t just pumping Petersen for information. He was making suggestions on what to do. A presidential suggestion and a presidential order is a very fine line for most people,” said John Dean, who went from being Nixon’s young White House counsel to a whistleblower.
Dean said he’s worried about how Trump could destroy the guardrails and do exactly what they prohibit now.
“It’s a very problematic situation. If a president calls a prosecutor and says, ‘Go get this reporter or this witness,’ I don’t know what’s going to happen … a grand jury is not a bulwark against abuse of the system,” Dean told NOTUS. “When the White House calls, they have the caller’s attention.”
Jimmy Carter’s attorney general, Benjamin Civiletti, first formally issued guidance limiting communications between the White House and DOJ in a 1979 memo titled “Communication From the White House and Congress.” Civiletti was pulling from his predecessor, AG Griffin Bell, who called for bringing the DOJ back into the “neutral zone” after Nixon.
“The policy is simply based on the fact that persons in certain positions of power unintentionally can exert pressure by the very nature of their positions,” Civiletti wrote.
On Sunday’s episode of NBC’s “Meet the Press,” Trump repeatedly told host Kristen Welker that he wouldn’t direct Bondi or his pick for FBI director, Kash Patel, to launch investigations against his political enemies. However, he made clear that he thinks several of them will still face repercussions — naming Liz Cheney, who helped lead the House Jan. 6 Committee that uncovered much of what’s known about Trump’s complex scheme to remain in power after losing the 2020 election.
“Everybody on that committee … for what they did, honestly, they should go to jail,” Trump said. “Biden could give them a pardon if he wants to, and maybe he should.”
Trump said he wouldn’t personally direct Patel, but he made clear he wouldn’t have to.
“If they think that somebody was dishonest or crooked or a corrupt politician, I think he probably has an obligation to do it,” Trump said.
When Welker noted Bondi’s vow to “investigate the investigators,” Trump again said he wouldn’t tell her to do that.
“I want her to do what she wants to do. I’m not going to instruct her to do it, no,” he said.
Trump has previously promised to one day appoint “a real special ‘prosecutor’ to go after … the entire Biden crime family” and “others.”
If the current DOJ communications policy is eliminated, Trump would be able to call up a special counsel directly without violating any department policies — and the special counsel could not divert the call while citing the rules.
Philip Lacovara, a former prosecutor at the Watergate special prosecutor’s office, warned about the consequences.
“At the policy level it would be the most reckless thing to do for the justice system,” he said. “The withdrawal of that memorandum would be signaling that, in fact, the administration is formally approving the weaponization of the justice system so that it can be used at the direction of the White House against perceived political enemies.”
“And on the personnel level, it’s going to put a lot of very honest prosecutors in an awkward position. And they’re going to have to make the choice the German generals had to make — whether to follow their consciences or follow orders. Some will make the decision they’d rather keep their job than do the conscientious thing. Others will be forced out rather than cooperate with the evil being demanded,” he added.
“On both levels, it’s going to be destructive of the integrity of the justice system,” Lacovara said.
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Jose Pagliery is a reporter at NOTUS. Claire Heddles is a NOTUS reporter and an Allbritton Journalism Institute fellow.
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