Trump has crossed the reddest line

If a president can use the power of the Justice Department for his political and personal ends, no one is safe.

(White House photo)

Like many Department of Justice alums, I have spent a great deal of time over the past eight months writing and talking about all the dangerous red lines President Donald Trump and his administration have crossed in the administration of an apolitical, fair justice system. And, yet, the reddest of lines has just been crossed. Trump has not only called for the investigation of his perceived enemies as retribution, regardless of facts and law, but he has also forced out a prosecutor who refused to do so and ordered his justice department to do it anyway.

Erik Siebert, who had served as assistant U.S. attorney since 2010, was nominated in May for the U.S. attorney position (after he had served in an acting/interim capacity). And, yet, Trump was insistent that Seibert be fired, telling reporters Friday: “I want him out.” Why? Because Siebert did exactly what he was required to do as a career prosecutor with years of experience evaluating facts and law and deciding whether to charge cases. He literally did his job. In this case, apparently, he and his team of prosecutors and investigators determined, as prosecutors often do, that there was insufficient evidence to charge New York Attorney General Letitia James with mortgage fraud, as Trump and non-prosecutors in his administration, specifically William J. Pulte (director of the Federal Housing Finance Agency, FHFA), had publicly alleged. By the end of the week, Seibert had resigned, although Trump claimed he’d fired.

In a massive understatement, the New York Times called the pressure on Siebert an “extraordinary breach of prosecutorial protocols that reach back to the days following the Watergate scandal” and “the latest blow to the Justice Department’s tradition of independence.” Let’s be crystal clear: Based on everything we know, Siebert declined to manufacture evidence to bring charges or bring charges without sufficient evidence against James and former FBI Director James Comey. This is obviously common sense, and the right thing to do, but it is also conduct that is required by his profession and his oath. Attorney ethics rules, including American Bar Association Rule 3.8(a), squarely prohibit prosecutors from bringing charges without probable cause (i.e., without evidence). Rule 3.1 reinforces that lawyers must have a factual basis for any claim they press. And an attorney’s ethical duty of candor to the court would have to be violated by bringing unsupported charges. And the much-respected Justice Manual (formerly the U.S. Attorneys’ Manual), followed by prosecutors across the country for decades under Democratic and Republican administrations, also requires that federal prosecutors bring charges only when they believe the admissible evidence will be sufficient to obtain and sustain a conviction—which is higher than the probable cause standard. As one former career fraud prosecutor put it, Siebert’s decision was not surprising because “no competent federal prosecutor would bring these cases because they wouldn't survive even the most forgiving judicial review.”

Believe it or not, it gets worse. After falsely claiming that he had fired Siebert, Trump demanded in a public social media post on Saturday the attorney general move quickly to prosecute figures he considers his enemies—making it crystal clear that it was because of retribution not actual crimes—and declaring that James is “very guilty of something.”

So, this is where we are in the political takeover of the Department of Justice: The president has pushed out a career prosecutor for failing to manufacture evidence or charge without sufficient evidence and demanded that the attorney general of the United States find someone who will make that charge. Trump has made himself the prosecutor, the judge, and the jury all at once, declaring that certain people are guilty of crimes. Even Fox News acknowledged that this was Trump pressuring the AG to prosecute “adversaries.”

Reportedly, even Attorney General Pam Bondi and Deputy Attorney General Todd Blanche, who have been fine with many other red lines being crossed by Trump when it comes to the DOJ, such as dismissing the prosecution of New York Mayor Eric Adams for non-legitimate reasons, have defended Siebert. Blanche even questioned the prosecution of James. Maybe there are still teeny tiny thin guardrails at DOJ. But, unlike in his first term, Trump is not listening to the lawyers who say stop. In fact, he has already announced his intention to install a political loyalist with absolutely no prosecutorial experience who will likely be “enough of a fool, or enough of a coward” (in the words of one of the Adams’ prosecutors who resigned) to do his bidding.

If a president can use the power of the Justice Department for his political and personal ends, no one is safe. If this is not the stuff of authoritarian governments, I don’t know what is.

Mimi Rocah was the district attorney of Westchester County, New York, from 2021 to 2024 and was a federal prosecutor from 2001 to 2017.

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