The Justice Department is set to significantly shift its priorities under Donald Trump, reflecting the themes of a presidential candidate who consistently described the country as riven by chaos and in need of more powerful law enforcement.
The department, which under President Obama built an aggressive civil rights division, is likely to take a more hands-off approach toward police departments alleged to have overused force and to loosen restrictions on surveillance in Muslim communities, according to legal analysts and Trump’s public statements.
Trump sought to position himself as the candidate of law and order, delivering apocalyptic speeches describing a nation torn apart by crime and terror.
He said police in Chicago could stop a spate of deadly violence by being “very much tougher than they are right now,” and wrote to the International Association of Chiefs of Police that he would generally keep the federal government out of local law enforcement’s business. He has been critical of Obama’s effort to give clemency to inmates serving long prison terms for nonviolent drug offenses. In response to the terrorist attack in Orlando in June, Trump said he would renew surveillance on mosques.
Those positions put him at odds with the current Justice Department. Under Obama, officials have tried to position Muslims as a partner in the fight against terrorism, and they have been supportive of broad changes to the criminal-justice system, including more lenient sentences for nonviolent drug crimes. The department has also taken a tough stance toward policing issues — scrutinizing entire departments with comprehensive “pattern or practice” inquiries and investigating high-profile incidents of officers killing people.
With the impending change, civil rights advocates said they are bracing for the worst.
“This is a guy who will have no problem targeting civil rights leaders, targeting reporters. We’re back to a Nixon enemies-list world,” said the Rev. Al Sharpton, president of the National Action Network. “We’ve got to get ready to fight. This is serious.”
The Justice Department’s policy positions and priorities often change when a Republican takes over from a Democrat, and vice versa, and in many ways, Trump’s administration will be no different. Under President George W. Bush, for example, the civil rights division took significantly fewer enforcement actions on anti-discrimination and voting rights laws than it did under President Bill Clinton. After Obama took office, then-Attorney General Eric H. Holder Jr. moved to give it back its teeth, taking aim at policies that officials thought resulted in racially disparate outcomes, even if the intent of those policies was not explicitly or intentionally racist.
“The civil rights division gets whipsawed more than any other part of the Department of Justice when the White House changes parties,” said Bill Yeomans, who spent 26 years at the department, primarily in the civil rights division. “This promises to bring a dramatic shift in priorities and ideology.”
Legal analysts said the core mission of the Justice Department — enforcing the nation’s federal laws — should remain the same. And they stressed that, because Trump has not yet indicated whom he will select as his attorney general, nor is he likely to follow traditional norms, it is hard to assess what his Justice Department might look like.
“We’ve never had a transition like this,” said Jamie Gorelick, who served as deputy attorney general under Clinton.
Two of Trump’s closest advisers — former New York mayor Rudolph W. Giuliani and New Jersey Gov. Chris Christie — have federal legal experience. Both were U.S. attorneys, and Giuliani served as the Justice Department’s third-highest-ranking official under President Ronald Reagan.
Giuliani has staked his reputation on the drop in crime during his time as mayor. Officers under him employed controversial stop-and-frisk tactics that a federal court in 2013 ruled were unconstitutional. Both Giuliani and Trump have made the dubious claim that the tactics drove down crime.
Christie, likewise, built his political career on his image as a tough-on-crime former prosecutor, talking extensively during his presidential primary campaign about his national security prosecutions. The governor, though, has been tainted by the “Bridgegate” scandal, in which two of his former aides were convicted last week of conspiring to shut down the nation’s busiest bridge to punish a local mayor who refused to support Christie’s reelection bid.
After his inauguration, Trump will face an early test in what, if anything, he decides to do with the investigation of Democratic presidential rival Hillary Clinton’s use of a private email server while secretary of state. Although FBI Director James B. Comey recommended no charges in that case, Trump has said that he would appoint a special prosecutor to look into the matter and that, if he were president, Clinton would “be in jail.”
Trump could, in theory, order his attorney general to appoint a special prosecutor to reinvestigate the former secretary of state, although many conservatives argue that it would be ill-advised to do so. Analysts say Trump already will have to contend with the perception that the Justice Department is partisan.
“If anything has become clear as a result of the Justice Department’s recent involvement in political affairs, it’s that the public needs to be reassured that it’s substance, not politics, that drives Justice Department decision-making,” said George Terwilliger, who served as deputy attorney general under President George H.W. Bush.
Whomever Trump appoints will take over a department that has regularly waded into eruptions of anger that followed the deaths of black men and boys at the hands of police officers. In recent months, the Justice Department has opened investigations of fatal police shootings in Baton Rouge and Tulsa. The department also is investigating the Chicago police force, the country’s second-biggest local department, after video footage emerged of an officer fatally shooting a teenager there.
A U.S. official familiar with the investigation said that it is “unlikely” that the inquiry will wrap up before Trump is sworn in, and that once the new Justice Department leaders are in place, they could react to the investigation by deciding to take out some required reforms.
The official said, though, that it was unlikely that new leadership would opt to override the results of the Chicago investigation or others that resulted in reform agreements already in place. Such inquiries are carried out by career officials rather than political appointees.
“I can’t imagine that they would come in and undo those” existing agreements, the official said. “But would they initiate a new one in the future? They might be a little less likely to do those.”
Giuliani, speaking to the Cleveland Police Patrolmen’s Association in October, said that court-mandated police reform agreements show how the Justice Department has become “politicized” during the Obama administration. It is possible, were he to be appointed attorney general, that the department would simply stop suing police departments to bring about new agreements, or even enforce old ones, analysts said.
“The consent decree agreements already in place — they could just choose not to enforce. They can let it all die by doing nothing,” said Jonathan Smith, who for five years was the Justice Department’s chief of special litigation, overseeing investigations of police departments.
Attorney General Loretta E. Lynch, who has been outspoken on the issue of race and policing, announced recently that the FBI will begin a project next year to start collecting nationwide use-of-force statistics in hopes of building a national database. Trump, in response to questions from the International Association of Chiefs of Police, seemed skeptical to the idea, writing that “the federal government should not be in the habit of demanding data from local or state law enforcement organizations.”
“Crime reporting should take place, but the management of local and state law enforcement should be left to those jurisdictions,” he wrote.
Sharpton and others said they are strategizing how they will apply pressure to Trump and his advisers, with the hopes of influencing his selection of attorney general, the Cabinet post most vital to issues of civil rights.
“We’ve fought for years, for decades on these issues. It is all at risk,” Sharpton said.
The American Civil Liberties Union, after Trump’s election, vowed to challenge in court any of his policies that might run afoul of U.S. law.
Many of Trump’s changes, though, probably would draw support. The Fraternal Order of Police, which has more than 335,000 members and describes itself as the country’s biggest police union, endorsed Trump in September. “Our membership . . . is pretty energized by the results of the election,” Jim Pasco, the union’s executive director, said Wednesday.
Chuck Wexler, executive director of the Police Executive Research Forum, said that after Trump’s comments about violent crime, immigration, drugs and terrorism, it remains to be seen whether his administration will provide more resources or try to expand its assistance to state and local jurisdictions in how they confront those issues.
“It’s a different administration, and they will have different priorities, and they will put their resources where they think is important,” he said. “He definitely has expressed support for officers on the street. That did not go unnoticed. The question is: When you get into policy, how does that translate?”