At critical junctures in Donald Trump’s presidency, some individuals of unquestionable loyalty to the President stood up to Trump and refused to carry out his orders. Despite their prior service in advancing Trump’s policies, Trump viewed those acts of disobedience as betrayal. In the future, officials in the Trump administration will understand that loyalty means absolute fealty. Consider the examples of Attorneys General Jeff Sessions and William Barr, and Vice President Mike Pence.
1. Trump will not again make the mistake of appointing people to positions of authority whose allegiance is foremost to the Constitution and not to Trump.
A. Attorney General Jeff Sessions
Jeff Sessions embodied Trump’s ideal of a lock-em-up, anti-immigrant law enforcement officer. He vigorously carried forward Trump’s policies against undocumented immigrants, even separating children from their parents. However, there were some orders Sessions refused.
Over Trump’s repeated and strenuous objections Sessions recused himself from the FBI’s investigation into Russian interference with the 2016 election. Moreover, Sessions refused Trump’s request that he stop the investigation. Sessions also refused Trump’s requests to investigate Hillary Clinton, Barack Obama, and other FBI and DOJ officials. In November 2018, Trump requested and received Sessions’s resignation.
B. Attorney General William Barr
Sessions was replaced by William Barr, who had previously served as Attorney General in the George H.W. Bush Administration. As Trump’s Attorney General, Barr misstated the findings of the Mueller report and intervened in the conviction and sentences of Roger Stone and Lt. General Michael Flynn. But the one thing Barr refused to do is tell the American public that there were irregularities in the 2020 election.
The Final Report of the Select Committee to Investigate the January 6th Attack on the United States Capitol details Trump’s efforts to convince Barr to claim that DOJ had found voting fraud. Barr told the committee that Trump made an “avalanche” of fraud allegations that the Department investigated [Report p. 374]. Barr reported back that there was no substance to the allegations and that they were all “bullshit” [375, 378]. Nevertheless, Trump continued publicly to repeat these lies. Eventually this proved too much for Barr, and he resigned [379].
C. Acting Attorney General Jeffrey Rosen
After Barr resigned, the DOJ was left in the hands of Jeffrey A. Rosen, who became Acting Attorney General, and Richard Donoghue, Deputy Acting Attorney General. Again, in meetings and phone calls and documents, Trump and other Trump associates argued one conspiracy theory after another, and each time they were debunked by either or both Rosen and Donohue [384-86]. At one point in a conversation with Donoghue about the FBI’s failure to uncover evidence of voting by undocumented immigrants, Trump said that he had “made some bad decisions on leadership” at the FBI [386].
When Rosen told Trump that the DOJ couldn’t just snap its fingers and change the outcome of the election, Trump responded: “Just say the election was corrupt and leave the rest to me and the Republican Congressmen” [386].
Rosen refused. Rosen also refused to send a letter to Georgia officials stating that the Department was investigating allegations of various irregularities in the presidential election [389-93] or file a lawsuit against Pennsylvania [393-95], or seize voting machines [396]. When Trump threatened to replace Rosen with an obscure DOJ official who was willing to do anything Trump asked, Trump was warned that the entire leadership of the Department of Justice would resign en masse. Only then did Trump back down [399].
D. Vice President Mike Pence
Most people already know about Trump’s efforts to persuade Vice President Mike Pence to void the election by rejecting the votes of some of the electors. What is important to note is that not only had Pence’s lawyers advised him that this was illegal, but Trump knew it as well. Law Professor John Eastman, who made the proposal to Pence, admitted in front of Pence and Trump that this proposal violated the Electoral Count Act of 1887 [428].
During Trump’s presidency, no one had been more loyal than Pence. But even Pence could not go this far. On January 6, when some members of the mob that invaded the Capitol threatened to hang Pence, Trump remarked that it was “common sense” [430].
2. Trump Instead Will Install People Who Would Violate Their Oath to the Constitution If Necessary to Carry Out His Orders
It will not be difficult for Trump to find people to install in positions of power who would pretzel the law if needed to carry out Trump’s agenda.
A. First order of business, appoint Judge Cannon to be acting Attorney General and fire Special Counsel Jack Smith
Federal District Judge Aileen Cannon may be at the top of Trump’s list for Attorney General. It is generally expected that the U.S. Court of Appeals for the Eleventh Circuit will soon reverse Judge Cannon’s decision dismissing the Ft. Pierce classified documents case over her conclusion that Special Counsel Jack Smith was appointed in violation of the Appointments Clause of the U.S. Constitution. The Eleventh Circuit may well order that the case be reassigned to a different district judge. Although reassignment following a reversal is rare, the appellate court’s authority to do so is well settled. What is critical is that Judge Cannon crossed way over the line when she refused to follow the decision of the United States Supreme Court in United States v. Nixon, which recognized the constitutional authority of the Special Counsel, by mischaracterizing that reasoning as mere dicta, that is, not important to the issues ruled upon and thus able to be disregarded. That finding by Judge Cannon was shredded to pieces in an essay by U.C. Davis Law Professor Vikram Amar, published here on Verdict on July 24, 2024.
If Trump is elected, he will need an Attorney General who will fire Jack Smith and dismiss both the federal prosecutions in Washington D.C. and in the Southern District of Florida. Judge Aileen Cannon has already demonstrated a willingness to do whatever is necessary to protect Trump.
B. Second order of business, institute Trump’s most extreme policies regarding illegal immigrants and the border.
The Republican Platform states what Trump will do to protect the border:
CHAPTER TWO: SEAL THE BORDER, AND STOP THE MIGRANT INVASION
1. Secure the Border
Republicans will restore every Border Policy of the Trump administration and halt all releases of Illegal Aliens into the interior. We will complete the Border Wall, shift massive portions of Federal Law Enforcement to Immigration Enforcement, and use advanced technology to monitor and secure the Border. We will use all resources needed to stop the Invasion—including moving thousands of Troops currently stationed overseas to our own Southern Border. We will deploy the U.S. Navy to impose a full Fentanyl Blockade on the waters of our Region—boarding and inspecting ships to look for fentanyl and fentanyl precursors. Before we defend the Borders of Foreign Countries, we must first secure the Border of our Country.
CHAPTER TEN: RETURN TO PEACE THROUGH STRENGTH
5. Defend America’s Borders
Against all odds, President Trump has completed Hundreds of Miles of Wall, and he will quickly finish the job. Republicans will mobilize Military personnel and assets as necessary to crack down hard on the cartels that traffic drugs and people into our Country.
These are not new proposals. It was what Trump wanted to do when he was President. But the DOJ has already weighed in on this question and determined that it would be illegal. DOJ, Memorandum Opinion for the General Counsel Department Of Defense, p. 19 (2021).
The next Attorney General will just replace this memo with one that says the influx of illegal aliens, dangerous drugs, and terrorists poses a grave threat to the nation that justifies the deployment of the military to the border.
C. Third order of business: Work with the new Acting Secretary of Defense, (possibly Lt. General Michael Flynn) to Implement this policy.
In the oral argument in the presidential immunity case, Trump v. United States, Justice Alito stated his belief that the military would not carry out any unlawful orders. Why not?
A likely candidate for the next Secretary of Defense is Lt. General Michael Flynn. Flynn was, for a short time, Trump’s national security advisor and was pardoned after he pled guilty to knowingly making false statements to the FBI regarding conversations he had had with Russian Ambassador Sergey Kislyak.
During Trump’s efforts to overturn the election, Flynn publicly called upon Trump to suspend the Constitution, silence the press, and hold a new election under military authority. He may be a nut, but he is Trump’s nut, and there is no doubt he will do whatever Trump asks him to do.
3. Trump will take steps to ensure that the “Deep State” does not thwart Trump’s agenda.
The next Attorney General will not be able to turn the DOJ into the instrument of Trump’s will without taking complete control of the department. Project 2025 explained how to create mechanisms within the government to ensure that career bureaucrats did not prevent the execution of Trump’s plans to remake the government. The first step is to make every important government official subject to summary dismissal. This is nothing new since Trump attempted to do that when he was President and has said that he would expand upon that effort if re-elected.
The Trump campaign has announced intent to change the civil service rules once Trump is reelected. At the end of Trump’s presidency, he altered the civil service rules to make thousands of civil service employees, Schedule F employees, a new civil service designation. That designation makes it possible for the President to fire any employee summarily. It also makes it possible for these employees to be replaced by persons loyal to the President.
But it is not sufficient to have the power to fire an employee if you do not know who is gumming up the works. Project 2025 has a plan for that too. In the case of the Department of Justice, the Project seeks to: “Ensure the assignment of sufficient political appointees throughout the department.”
The number of appointees serving throughout the department in prior Administrations—particularly during the Trump Administration—has not been sufficient either to stop bad things from happening through proper management or to promote the President’s agenda. It is not enough for political appointees to serve in obvious offices like the Office of the Attorney General or the Office of the Deputy Attorney General. The next conservative Administration must make every effort to obtain the resources to support a vast expansion of the number of appointees in every office and component across the department—especially in the Civil Rights Division, the FBI, and the EOIR.
[569] (emphasis added).
Of course, this may not be completely necessary since Trump’s election will result in an exodus of senior DOJ officials, so the likelihood of pushback on unlawful or unconstitutional policies is slim to begin with.
4. The next AG Will Have Little Fear of Carrying Out Trump’s Orders Because the Supreme Court’s New Doctrine of Presidential Criminal Immunity Guarantees That No Prosecutor Would Charge Her With a Crime Obeying the President.
In the presidential immunity decision, the Supreme Court held that the President of the United States is above the law when it comes to orders made in his official capacity. Consequently, a President can issue any order to an official of the Department of Justice without fear of prosecution, no matter how unlawful the order (with the possible exception of ordering the FBI to assassinate someone). Trump v. United States, 144 S. Ct. 2312, 2335 (2024). Of course, this does not mean that an official ordered to commit a crime could not be prosecuted. But who would prosecute them? Moreover, it is unlikely that a jury would convict anyone for carrying out a direct order from the President. It is tantamount to creating for the first time, a defense of obedience to superior orders.
5. If Kash Patel is appointed acting Director of the FBI, the next AG will have a loyalist willing to carry out the investigation of Trump’s enemies.
Kash Patel is one of Trump’s closest advisors. In 2020 Trump made him the chief of staff to the acting Secretary of Defense Christopher Miller. In the October 2024 Issue of the Atlantic, Elaina Calabro reported how various government officials refused to work with Patel for fear of what he might do if requested by Trump.
When Trump entertained naming Patel deputy director of the FBI, Attorney General Bill Barr confronted the White House chief of staff and said, “Over my dead body.” When, in the final weeks of the administration, Trump planned to name Patel deputy director of the CIA, Gina Haspel, the agency’s head, threatened to resign.
The Man Who Will Do Anything for Trump.
Trump has bemoaned the fact that he had “made some bad decisions on leadership” at the FBI. [Select Committee Report p.386]. Patel has already stated what will happen if Trump is elected. On Steve Bannon’s podcast, Patel said:
We will go out and find the conspirators not just in government, but in the media,
We’re going to come after you whether it’s criminally or civilly,
We’ll figure that out.
Although Patel later tried to put a benign spin on his remarks, and the Trump campaign denied his remarks represented the President’s intentions, during Trump’s administration, Trump tried to put Patel in positions of authority in three of the most important investigative arms of the Executive. Indeed, when the Director of the CIA threatened to resign, “Trump relented only after an intervention by Vice President Mike Pence and others.”
Trump may not intend to use his new powers to create a police state. He does not have the vision of a Hitler, or a Stalin, or a Mao. Nor is there any reason to believe that he has the blood lust to engage in mass murder. Some have suggested that he would now be immune from prosecution if he ordered Seal Team 6 to assassinate a political opponent under the guise of preventing a coup. I agree, though I don’t see him issuing such an order. But he did incite violence to take over the government, and he did engage in a conspiracy to overturn the election with frivolous legal challenges, phony electors, and threats to public officials. And he did ask Attorney General Jeff Sessions to investigate those he perceived as enemies, including Hillary Clinton, Barack Obama, and FBI and DOJ employees.
For all their faults, and unjust initiatives and policies, Sessions and Barr defended the independence of the Department of Justice. Whatever one believes of their moral compass, each showed at one point that they had one. Like Pence, they stood their ground when asked to do something they believed was legally or ethically wrong. They did not try to find ways around the law to do Trump’s bidding when they knew what Trump wanted was wrong.
After the signing of the Constitution in September 1787, after Elizabeth Willing Powel asked Benjamin Franklin, “Well, Doctor, what have we got? A republic or a monarchy?” Franklin replied, “A republic, if you can keep it.”
If Trump is elected, we may not get a dictatorship, but we may well get a monarchy.
