A Deep Dive Into Project 2025’s Plan to Subvert the Rule of Law and Use the Department of Justice as an Instrument for Political Oppression

Published today in the Verdict, July 12, 2024

For those who have not heard of Project 2025, it is a detailed plan to overhaul the Executive Branch to vastly limit the role of government and place all federal agencies under a “unitary presidency,” ensuring that the execution of statutes and regulations adhere to a right-wing ideology. The Project is the product of 54 ultra-conservative organizations working under the auspices of the Heritage Foundation. (Project xi-xii). Reporters, columnists, and pundits almost unanimously agree that Project 2025 describes Trump’s plans for his next administration, despite his campaign’s effort to distance Trump from the Project’s recommendations.

In a post on the social media site Truth Social, Donald Trump stated:

I know nothing about Project 2025

And then:

I disagree with some of the things they’re saying and some of the things they’re saying are absolutely ridiculous and abysmal. Anything they do, I wish them luck, but I have nothing to do with them.

      Of course, as in all things Trump, one must judge the man by his actions, not his words. By considering Project 2025’s recommendations in the context of Trump’s previous efforts to circumvent the law and nullify the Constitution, it is plain that Project 2025 is a roadmap for Trump and his followers to accomplish what they were unable to do the first time, and change our Republic from the rule of law to the rule of the “Strong Man.”

      This article explains how Project 2025 would impact the operations of the Department of Justice. It demonstrates that if Donald Trump is reelected, the Department of Justice will become an instrument of a right-wing agenda, employing lawful and unlawful means to punish state and federal public officials who refuse to obey its commands.

          1. Organization of the Department of Justice

          More than 115,000 people work at the DOJ and its 40 component organizations. The head of the Department is the Attorney General, a position presently occupied by Merrick Garland. Under the AG is the Deputy Attorney General. This position carries a great deal of authority in setting policy for the rest of the Department. Well-known components under the Deputy AG include the Office of Solicitor General, the Civil Rights Division, the Civil Division, the Criminal Division, the Anti-Trust Division, the National Security Division, the Tax Division, and the 94 United States Attorney’s Offices. Law enforcement authorities that are part of the DOJ include the FBI, the DEA, and the ATF There are a host of other entities within the DOJ, but the ones mentioned do the lion’s share of the work and will be the most affected if Project 2025’s recommendations are implemented.

          2. False Justifications for the Project’s Reforms

          Project 2025 contends that the Department of Justice has lost the trust of the American public, and with good reason. “Large swaths of the department have been captured by an unaccountable bureaucratic managerial class and radical Left ideologues who have embedded themselves throughout its offices and components.” (Project p. 545). In support of this thesis, it focuses on various FBI investigations which it contends were unfounded and politicly motivated (Project, p. 545-546); DOJ policies in support of a woke ideology; prosecutions of patriotic Americans for exercising their constitutional rights at school board meetings and abortion clinics while ignoring violence by left-wing organizations (Project p. 548). It contends that the Department of Justice has failed to carry out its primary function to protect law-abiding citizens by ignoring its core functions: “enforcing our immigration laws, combating domestic and international criminal enterprises, protecting federal civil rights, and combating foreign espionage. (Project p. 548).

          a. Alleged Increase in Violent Crime

          Ever since the late 1960s, both political parties have used voters’ fear of crime to motivate them to support their candidates. From the early 1970s through the 1990s, the public was justifiably concerned as crime rates were rising dramatically, particularly drug offenses and violent crimes such as murder, rape, and robbery. Whether the statutes enacted in response to this problem succeeded in reducing crime rates or whether crime rates decreased because of other sociological factors is not the subject of this essay. However, the Project’s contention that violence has continued to increase and that the DOJ’s policies are the cause is simply false and is an attempt to use fear to manipulate the public.

          The chapter on the Department of Justice was written by Gene Hamilton, the Vice-President and General Counsel of America First Legal Foundation. (Project xviii) The America First Legal Foundation is a right-of-center nonprofit organization formed by former senior Trump White House advisor Stephen Miller. It has filed lawsuits around the country to block Biden administration policies. Mr. Hamilton has held senior positions at the DOJ, U.S. Customs and Border Protection, and Homeland Security.

          According to Hamilton:

In recent years, federal and state officials have succumbed to calls from anti-law enforcement advocates for so-called criminal justice reform…. This campaign is not just ill-advised; it has had real-world consequences in the form of catastrophic increases in crime—particularly violent crime— nationwide.

(Project p. 552).

          Mr. Hamilton certainly knows better.

          This chart shows the violent crime rate in the United States from 1990 to 2022. As these statistics demonstrate, violent crime during the Trump and Biden years was at an all-time low. Thus far in 2024, it appears the crime rates for murder, robbery, and rape have fallen even farther.

The Project does not identify what criminal justice reform policies it contends have caused this catastrophic increase in violent crime. It simply alleges:

The pleasant-sounding terminology of reform masks the darker reality of this movement, which has supported dismantling effective federal, state, and local law enforcement and stripped away some of the most fundamental tools that law enforcement has long had at its disposal.

(Project p. 552).

          If the Project is referring to calls to defund the police, such calls have been rejected by President Biden. Indeed, President Biden proposed legislation that would provide $35 billion of additional funding to state and local law enforcement. That legislation has been stalled by House Republicans who want to cut funding. If the Project is referring to consent decrees obtained by the DOJ, as of August 2023, there were thirty such agreements with local police departments out of almost 18,000 police agencies in the country. These decrees have arisen out of the killing of innocent people by inadequately trained police officers or as a result of widespread violations of civil rights; conduct that does not reflect the legitimate tools of law enforcement followed by thousands of police departments across the country.

          If the Project is referring to the Biden administration’s efforts to stop choke holds and no-knock warrants and strengthen policies on use-of-force training, reasonable people can disagree as to the necessity of these initiatives. But it is absurd to suggest that the Biden administration supports “dismantling effective federal, state, and local law enforcement and stripp[ing] away some of the most fundamental tools that law enforcement has long had at its disposal,” or that such events have even occurred.

          b. Failure to Prosecute Immigration Cases

          Another claim made in the Project is that the DOJ has ignored immigration laws. This, too, is false. In support of this claim, the Project cites a brief by the American First Legal Foundation claiming that the Biden administration had “Released More Than 750,000 Illegal Aliens into the United States from the Border.” This is a case of Mr. Hamilton citing himself for authority in support of an assertion he makes. (Project, p. 574, n. 21). [Lawyers who do this are rarely sanctioned but often laughed out of court.].

          Surely, Hamilton knows that the DOJ under AG Merrick Garland has prosecuted tens of thousands of individuals for immigration violations. The Project’s allegations only make sense if the Project seeks to prosecute more aliens merely for unlawful entry. That is a policy decision a future Trump administration could make. Assuming that the number the Project cites is correct, no significant percentage of 750,000 could be prosecuted. There are not enough courts, judges, or prosecutors to prosecute a meaningful number of aliens who enter illegally, let alone the millions of illegal aliens who already reside in the United States. And if they could be prosecuted, where would they be imprisoned?

          Of course, an examination of the actual figures reflecting the prosecution of major immigration offenses such as reentry after deportation and alien smuggling demonstrates that there has, in fact, been vigorous prosecution of noncitizens who have committed crimes. Pursuing more prosecution of persons solely because they have entered illegally would diminish the number of prosecutions for the more serious immigration offenses and decrease the number of prosecutions for drug trafficking, firearms violations, and white-collar crimes. Statistics from the United States Sentencing Commission bear this out:

This chart reflects the percentage of sentences for various offenses for the year 2023. As the chart shows, the Department of Justice last year prosecuted more immigration offenses than any other crime within its jurisdiction. Mr. Hamilton certainly knows this.

          c. Alleged Policies Resulting in Armed Career Criminals Receiving Sentences Below the Guidelines.

The Project asserts:

The Biden Administration has adopted policies that do not prevent armed career criminals, who commit violent crimes, from committing those crimes. A recent U.S. Sentencing Commission report shows that armed career criminals are consistently sentenced below their minimum sentencing guidelines range.

(Project p. 553).

The Project does not identify what these policies are. More importantly, the Project makes false assertions, counting on its readers not looking at the Sentencing Commission’s Report. The report actually says:

The majority (61.3%) of courts imposed sentences longer than 15 years. The average sentence imposed for these offenders was 224 months, six months longer than the average guideline minimum of 218 months and nearly four years (44 months) longer than the 15-year mandatory minimum penalty.

(Report p. 27)

          The chart in the report cited by the Project reflects the sentencing of all armed career offenders including those who received a shorter sentence due to their cooperation with law enforcement. Naturally, when the sentences for those who have received a reduction based on their substantial assistance are added to the majority of defendants who have not, the average will be lower than the guidelines. As the chart reflects, this pattern has been consistent going back to the year 2010, including during the time that Trump was President.

          3. The Plan’s Program to Politicize Every Component of the DOJ

          There is no evidence that President Biden ever sought to influence the DOJ. By contrast, Donald Trump personally sought to coerce Attorney Generals Jeff Sessions and William Barr to engage in unethical or unlawful conduct. Trump’s attempt to coerce AG Sessions to take charge of the government’s investigation into Russia’s involvement in the 2016 election and coerce AG Barr to make false statements regard the department’s investigation into Trump’s allegation of massive voter fraud during the 2020 presidential election, failed.

          Trump attempted to remedy Sessions’s disobedience by appointing Barr. When Barr disobeyed Trump, Trump sought to replace Barr with someone whose fealty Trump could be certain of. But that effort also failed when the DOJ’s management threatened to quit en masse.

          The Project recommends structural changes that would ensure such disobedience to the executive would never happen again. First the FBI would be removed from direct supervision by the Deputy Attorney General and placed under the general supervision of the Assistant Attorney General for the Criminal Division. (Project. p. 549). This will allow for greater supervision of the FBI and eliminate its self-perception of independence. Then there should be a top-to-bottom review of every major investigation to ensure that its present efforts are confined to the DOJ’s core responsibilities. Finally, the DOJ will be salted with political appointees whose job will be to monitor in real time all components of the DOJ to ensure that the Department’s work is consistent with the executive’s ideology.

          a. Conduct a Review of All Major FBI Investigations to Determine Whether They Conform to the President’s Ideological Agenda

          The Department of Justice does many things: it drafts legislation for consideration by Congress; it represents the Executive before the Supreme Court of the United States; it brings and defends civil lawsuits. Of its various roles, its most important is the investigation and prosecution of federal criminal offenses. As the chart below demonstrates, certain broad categories of prosecutions predominate.

          [This chart was created by the author of this essay from statistics maintained by the United States Sentencing Commission which is available online on its Interactive Data Analyzer].

          The chart shows the number of defendants sentenced by three administrations from 2015 to 2023. The chart demonstrates that prosecutions for various offenses have been roughly the same through Republican and Democratic administrations although there was some increase in immigration prosecutions overlapping the end of the Trump administration and the beginning of the Biden administration.

          Project 2025’s prime target is the FBI. It believes that the FBI has become so politicized that a top-to-bottom review of all its cases is necessary to put an end to unwarranted or politically motivated prosecutions. Based on this belief, the Project recommends that the new Trump administration:

Conduct an immediate, comprehensive review of all major (that are unlawful or contrary to the national interest. This is an enormous task, but it is necessary to re-earn the American people’s trust in the FBI and its work. To conduct this review, the department should detail attorney appointees with criminal, national security, or homeland security backgrounds to catalog any questionable activities and elevate them to appropriate DOJ leadership consistent with the new chain of command (discussed below). The department should also consider issuing a public report of the findings from this review as appropriate.

(Program p. 549, Note, this site was added to this article post-publication of the Verdict today).

          The Project singles out two FBI investigations it contends were politically motivated: the FBI’s investigation into Russian involvement in the 2016 election (what it calls the Russian Hoax) and the effort to hide the contents of Hunter Biden’s laptop. While the evidence of Russian collusion with the Trump campaign is circumstantial, there is overwhelming evidence that Russia engaged in an extensive propaganda campaign on social media in support of Trump’s election. Moreover, Republicans have failed to present any evidence that the FBI suppressed the contents of anything on Hunter Biden’s laptop. The Project offers absolutely no basis to believe that any of the FBI’s major investigations are unlawful or contrary to the national interest.

          This recommendation is reminiscent of the Presidential Advisory Committee on Voter Integrity created by Trump to prove his contention that there had been widespread voter fraud during the 2016 presidential election. Trump abruptly closed down this effort when the committee was unable to find any evidence of widespread fraud as was alleged. A similar fate awaits any such investigation of the FBI, as demonstrated by the fact that Project 2025 offers nothing but conclusory allegations of a politicized agency.

          This review of all major FBI investigations is part of the right wing’s effort to emasculate an agency it sees as too powerful and too independent. This is also reflected in the proposed reorganization of the DOJ.

          b. The Creation of a Cadre of Political Appointees to Ensure Compliance with the President’s Ideological Agenda

          Sometimes only a cliché can adequately convey the significance of an event. In this instance, the only way to describe the planned takeover of the DOJ is breathtaking. The plan 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.

(Project p. 569, emphasis supplied).

          Only authoritarian governments seek such control over the activities of government officials to ensure that “bad things” don’t happen and to “promote the President’s agenda.”

          How such control will be exercised is not stated, but it is easy to discern from the Trump campaign’s 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 20,000 civil service employees Schedule F employees. If re-elected, he intends to expand his order to 50,000 employees. This will permit the President to fire any employee unilaterally.

          The new surveillance protocol coupled with the loss of civil service protections means that any employee of the Department of Justice who fails to obey the direction of a political appointee, even if that direction is illegal, immoral, unethical, or unconstitutional, can be immediately replaced. This is simply a recipe for dictatorial control over the DOJ.

          But this control is not limited to the DOJ. It also extends to state prosecutors who fail to adhere to the President’s ideological diktat.

Where warranted and proper under federal law, initiate legal action against local officials—including District Attorneys—who deny American citizens the “equal protection of the laws” by refusing to prosecute criminal offenses in their jurisdictions. This holds true, particularly for jurisdictions that refuse to enforce the law against criminals based on the Left’s favored defining characteristics of the would- be offender (race, so-called gender identity, sexual orientation, etc.) or other political considerations (e.g., immigration status).

(Project p. 553).

          At present, there are no laws that would permit such legal actions. Assuming Congress granted the DOJ the authority to pursue District Attorneys who have denied American citizens “the equal protection of the law,” it is unclear what the true intent of such a policy is. This paragraph is based upon two false propositions, one legal and one factual. First, the legal error is the assertion that refusing to prosecute a criminal offense deprives American citizens of the equal protection of the law. The factual error is that jurisdictions are refusing the enforce the law against offenders based upon gender identity, sexual orientation, or immigration status.

          Hamilton, a distinguished lawyer and advocate, is well aware that citizens do not possess an equal protection right to have any person prosecuted. Indeed, the right to equal protection of the law has no meaning within the context of prosecutorial discretion except possibly in instances where an individual is being prosecuted based on race, sex, or national origin. Second, Hamilton offers not a shred of evidence to support the contention that prosecutorial discretion has been influenced by gender identity, sexual orientation, or immigration status. Or that “Prosecution and charging decisions are infused with racial and partisan political double standards.” (Project p. 548).

          Of course, the threat of prosecution alone is enough to intimidate state officials to toe the party line.

          c. Other Provisions of the Project that Demonstrate the Intent to Use the DOJ to further the Right Wing Agenda.

          i. The Use of the Military to Support Law Enforcement at the Border.

          The Project has other provisions that are equally abhorrent but do not directly impact the independence of the DOJ. For instance, the Project states that:

[T]he next Administration should take a creative and aggressive approach to tackling these dangerous criminal organizations at the border. This could include the use of active-duty military personnel and National Guardsmen to assist in arrest operations along the border—something that has not yet been done.

(Project p. 555).

          As Mr. Hamilton is aware, having been an official with the Customs and Border Protection as well as the DOJ, the use of the military to assist in arrest operations would be a direct violation of the Posse Comitatus Act, 18 U.S.C. § 1385, which restricts the use of “any part of the Army or the Air Force” in civilian law enforcement, unless expressly authorized by law. While the military is permitted to render some “passive assistance” at the border, “ military personnel [are not permitted] to perform any traditional law enforcement task, such as the arrest, seizure, or search of a person.” DOJ, Memorandum Opinion For The General Counsel Department Of Defense, p. 19 (2021).

          ii. Exercising Existing Statutory Authority To Prevent The mail from Being Used To Distribute Medication To Terminate A Pregnancy

          In 2023, 63% of all abortions resulted from oral medications. Increasingly, women receive this medication through the mail based upon prescriptions obtained through telemedicine. Few people know that 18 U.S.C. §§ 1461 and 1462 make the mailing of this medication unlawful. In the past, this statute was not enforced. The DOJ took the position that it was unconstitutional under Roe v. Wade, 410 U.S. 113 (1973). Now that Roe has been overturned by Dobbs v. Jackson Women’s Health Organization, 597 U.S. ___ (2022), the next administration may follow the plan’s recommendation that this statute be enforced. (Project p. 562). Doing so would be within the discretion of the Trump administration. This is another reason why Donald Trump must not be elected President.

          4. The Ultimate Threat to Our Democracy

Finally, the Project threatens Congress and the Judiciary:

The next conservative Administration should embrace the Constitution and understand the obligation of the executive branch to use its independent resources and authorities to restrain the excesses of both the legislative and judicial branches. This will mean ensuring that the leadership of the Department of Justice and its components understand the separation of powers, that pushback among the branches is a positive feature and not a defect of our system, and that the federal system is strengthened, not weakened, by disagreement among the branches.

(Project p. 560, emphasis added).

          What does “restrain” mean? What does “pushback” entail? How far will the Executive go to express its disagreement with the other branches? The answer to these questions is found in the paragraph that precedes this recommendation.

The increasingly aggressive posture of federal courts does not change one constitutionally immutable fact: All three branches of the federal government retain not just the right, but the obligation to assess constitutionality. It is this obligation that is the foundation of the separation of powers.

(Project p. 559).

          This is nothing less than an assertion that the Executive Branch has the right to determine the constitutionality of a statute or the legality of its own conduct. In other words, if the President wants to, the President can defy any decision of the Supreme Court, any legislation by Congress, maybe even the act of impeachment and removal from office (if for instance the President determined that what they are accused of is not a high crime or misdemeanor).

          This plan does not reflect conservative values. It is anti-democratic, fascist, and antithetical to the rule of law. It is a recipe for autocratic rule by the proverbial “Strong Man.” It must be stopped.