This is The Marshall Project’s Closing Argument newsletter, a weekly deep dive into a key criminal justice issue. Want this delivered to your inbox? Subscribe to future newsletters.
On a dreary April day in 2017, I was at the federal courthouse in Baltimore to report on an odd hearing. City officials and residents had turned out to demand that the federal government continue its civil rights investigation into the Baltimore Police Department, and the government was there to argue that its investigation should be halted.
Why did the government want to stop its own investigation? Because it had begun under the Obama Administration, and President Donald Trump’s Department of Justice now generally rejected the legitimacy of these kinds of probes.
This investigative approach has been used to look into abusive policing in Ferguson, Missouri, Minneapolis, and dozens of other departments since the mid-1990s — often after high-profile police violence. It typically leads to enforceable agreements between local officials and the Department of Justice known as consent decrees.
Project 2025, a nearly 1,000-page policy agenda for a second Trump presidency compiled by the right-wing Heritage Foundation, suggests that the Department of Justice would reject federal probes into police abuse once again. That worries Yasmin Cader, director of the Trone Center for Justice and Equality at the American Civil Liberties Union. “It's a really important government function,” Cader said of these civil rights investigations, “and if it's abandoned, it leaves local jurisdictions to do whatever they may, without the fear of that investigative force.”
In 2017, then-Attorney General Jeff Sessions simply allowed most of the tools available to the civil rights division to rust on the shelf. In contrast, the second iteration of the Trump Administration’s Department of Justice is set to remake the division as an instrument for promoting a right-wing agenda.
That’s according to Trump's campaign rhetoric, in which the former president has pledged to open civil rights investigations into what he called “radical leftist prosecutor’s offices” that “refuse to charge criminals.” His campaign has singled out district attorneys in Chicago, Los Angeles and San Francisco. In the broadest sense, Trump’s claim about “refusal” to charge criminals is false — all those prosecutors charge people with crimes every day. Rather, the campaign’s claim reflects Trump’s disregard for a group of district attorneys, commonly referred to as “progressive prosecutors,” who’ve pledged a less punitive approach than their predecessors.
While prosecutors’ offices have occasionally been the target of civil rights inquiries, several experts told me that investigating prosecutors for the cases they choose not to bring is a dramatic departure from the norm. Choosing which cases to pursue and which to drop is a core responsibility of prosecution, and one of the arguments for the local election of district attorneys is that communities may have different priorities on how these choices get made.
“All of these efforts to erode community choice are fundamentally anti-democratic and presume that a few state or federal elected leaders should somehow be allowed to override the community's choice and the community's vision for a system of justice that they want to see in place,” said Miriam Krinsky, a former federal prosecutor and the Executive Director of Fair and Just Prosecution, a nonprofit association whose members include many of the prosecutors Trump would likely go after if elected to a second term.
Christy Lopez, who worked in the Justice Department for nearly seven years under President Obama, and who oversaw multiple civil rights investigations, called the Trump proposal a “misuse” of the federal government’s power to scrutinize local law enforcement. Launching future investigations would clearly be within the department’s power, however, and any battles over how they play out would have to be settled through the federal courts.
An effort to redirect the Justice Department’s focus might hit another roadblock: bureaucracy. Most Justice Department employees are career civil servants — rather than political appointees — and could slow-walk any directives they found objectionable. But another proposal for Trump’s second term, known as Schedule F, could give the administration the ability to fire government workers perceived as disloyal en masse and replace them with political allies.
“Schedule F does raise the specter that that whole equation can change, which would allow them to do a lot more of this,” said Lopez, now a law professor at Georgetown University.
Both Schedule F and the idea of bringing federal legal action against district attorneys are mentioned in Project 2025. The document burst into the national political conversation in recent weeks, largely because of the extreme proposals and revolutionary zeal it contains.
Trump has tried to distance himself from Project 2025, but it was produced by a number of his former administration officials and close advisors, and many of the provisions echo plans that Trump himself has either promised or already tried during his first term. For example, Project 2025 calls for the elimination of all consent decrees, in line with how the Trump Justice Department tried to end the federal investigation into the Baltimore Police Department in 2017.
Project 2025 also calls for federal prosecutors to circumvent local district attorneys and to charge people for crimes when local prosecutors do not. Cader, who spent more than 13 years as a federal public defender, told me this wouldn’t always be possible, as federal laws and state laws don’t always overlap. But she said that gun and drug crimes are huge areas of criminal law where federal prosecutors could have a marked impact on mass incarceration by pursuing more cases, and seeking longer sentences, as Project 2025 proposes.
The issue of reproductive rights is also especially well positioned for this kind of aggressive federal enforcement because many local prosecutors have pledged not to bring cases against people who have had or provided abortions, and because the legal terrain remains unsettled since the Supreme Court overturned Roe v. Wade in 2022. Trump’s vice presidential nominee J.D. Vance, for example, previously urged the Department of Justice to crack down on the mailing of abortion pills, citing the Comstock Act, a 151-year-old federal law that the Biden Administration has argued is outdated. A new Trump Administration could decide to vigorously prosecute medication abortions using prescriptions received through the mail — though Trump has declined to comment on the Comstock Act, according to The Washington Post.
Whether a second Trump term leads the Department of Justice to do all of these things or none of them, the rhetoric in Project 2025 and in Trump’s campaign all have the potential to trickle down into state and local jurisdictions if he is elected. “It creates a chilling effect,” for reform efforts across the country, said Lindsey McLendon, a senior fellow at the Center for American Progress, a progressive think tank. She said the efforts to target prosecutors “sends a signal to other elected officials that this is an endorsed policy, an endorsed approach — to remove local officials and in favor of a preferred political ally, under the guise of a lack of enforcement.” She noted that several Republican-led states have already removed Democratic elected prosecutors from office or created new mechanisms for doing so.
Learn about how The Marshall Project is covering the 2024 election’s criminal justice and immigration issues across the U.S. and in our local news teams’ cities.
