Mike Davis, a pro-Trump lawyer who previously served as chief counsel for nominations to Sen. Chuck Grassley (R-IA) in his capacity as chairman of the Senate Judiciary Committee, broached a plan to pursue retribution against Trump’s enemies during an appearance on former White House chief strategist Steve Bannon’s podcast on Tuesday.
“There must be severe legal, political and financial consequences,” Davis said, after citing the FBI raid on Trump’s personnel residence at Mar-a-Lago during Smith’s investigation of Trump’s handling of classified documents. The case was ultimately dismissed by a federal judge appointed by Trump.
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“And it needs to happen at the Department of Justice through the Office of Professional Responsibility, through a probe, a criminal probe,” Davis continued. “Maybe President Trump should file civil lawsuits for this obvious violation of his civil rights and other torts against him.”
Davis also referenced the successful prosecution by Manhattan District Attorney Alvin Bragg and pending charges brought by Fulton County District Attorney Fani Willis related to the effort to overturn the 2020 election in his remarks.
Bannon, for his part, said during the segment that there was an “active discussion” about “a special prosecutor to be named by the Trump administration” that would “look into all of this.”
Retired Lt. General Michael Flynn, Trump’s former national security advisor, has also called for Smith “to be indicted for blatant election interference.” (Flynn pleaded guilty to lying about his contacts with Russian ambassador Sergey Kislyak, but the Department of Justice under the first Trump administration dismissed charges, and Trump pardoned him.)
Trump routinely attacked Smith on the campaign trail by calling him “deranged,” and last month vowed to “fire him within two seconds” and said “he should be thrown out of the country.”
Trump has called for New York Attorney General Letitia James, who obtained a $450 million civil judgment against his businesses for falsely inflating the value of their assets, to “be prosecuted.” And after a jury in Manhattan convicted Trump of 34 felonies in the hush money case involving porn actress Stormy Daniels, Trump reportedly said District Attorney Alvin Bragg “should be prosecuted or at a minimum he should resign.”
Trump’s announcement that he’s choosing Gaetz, who must clear confirmation from the incoming Republican-controlled Senate, for the job of attorney general, highlighted his preoccupation with using the nation’s top law enforcement agency to exact retribution on his political opponents.
“Few issues in America are more important than ending the partisan Weaponization of our Justice System,” Trump said in his announcement, while promising that Gaetz “will root out the systemic corruption at DOJ.”
Walter C. Holton Jr., a former U.S. attorney appointed by President Bill Clinton, told Raw Story there is “no legitimate basis” to launch a criminal investigation against Smith.
Holton contrasted the idea of prosecuting Smith that Trump’s allies are floating to the case of Mike Nifong, a district attorney in Durham, N.C. who was disbarred and went to jail for contempt of court after falsely accusing three Duke University lacrosse players of rape in 2006.
Holton noted that in that case, the prosecutor ignored facts or chose not to investigate facts that undermined his case.
“But this situation is entirely different because what the special counsel is doing is operating through grand juries, and he allowed grand juries to make the decisions using facts and witnesses,” Holton said. “It’s not just a warrant for arrest, which is what Nifong did through a magistrate…. There is typically a degree of immunity accorded to prosecutors who are operating in good faith.”
Holton said he feels confident the American justice system would withstand any effort to harass Trump’s political enemies by bringing bogus criminal charges.
“I tend to think the founders of the country are stronger than a bunch of clowns in a car yelling out the window — which is what these guys are,” Holton said.
Davis and Gaetz could not be reached for comment for this story.
Holton noted former New York Mayor Rudy Giuliani, who pressed Trump’s case to overturn the 2020 election, wound up losing his law license in New York and Washington, D.C.
“If you try to create and fabricate a situation that is not true, you can lose your law license,” Holton said.
If Gaetz opts to investigate a Special counsel criminally, it would not be the first time a Trump Justice Department has sought to turn the tables on an investigation that cast the incoming president in an unfavorable light.
In 2019, at Trump’s urging, Attorney General William Barr appointed Special Counsel John Durham to probe the origins of the FBI investigation into possible collusion between the 2016 Trump campaign and Russians. That investigation, known as “Crossfire Hurricane,” resulted in “convictions of a half-dozen Trump associates, and determined that Russia intervened on the Trump campaign’s behalf and that the campaign welcomed the help,” according to an Associated Press report.
Durham’s counter-investigation resulted in one conviction: An FBI lawyer pleaded guilty to altering an email related to secret surveillance of an ex-Trump aide.
Durham also brought another case against a lawyer for Hillary Clinton’s 2016 presidential campaign, which ended in acquittal.
Durham’s final report concluded that the FBI minimized critical evidence, such as a witness denying to a federal informant that he had any knowledge of ties between the Trump campaign and Russia.
“An objective and honest assessment of these strands of information should have caused the FBI to question not only the predication of Crossfire Hurricane, but also to reflect on whether the FBI was being manipulated for political and other purposes,” the Durham report concluded. “Unfortunately, it did not.”
Call to fire DOJ career lawyers who refuse Trump’s orders
Trump’s choice to select Gaetz as attorney general aligns with a push among his allies to consolidate the incoming president’s control over the Justice Department while setting aside a post-Watergate norm of insulating the department from political influence.
Trump’s interest in exerting greater control over the Justice Department surfaced most dramatically when he expressed indignation about his first attorney general, Jeff Sessions, recusing himself from the investigation into possible collusion between his campaign and Russians, telling the New York Times that it was “very unfair to the president.”
Mark Paoletta, a lawyer who formerly served as general counsel for the Office of Management & Budget in the first Trump administration, issued a warning on Wednesday to “career DOJ lawyers” who might resist implementing Trump’s agenda.
“Any civil servant who claims their actions to resist policy initiative will be doing so to uphold the rule of law is being dishonest,” he wrote on X. “They are undermining the rule of law and subverting democracy and should be fired.”
In an interview with One America News Network host Chanel Rion on the far-right on Tuesday, Paoletta emphasized that, in his view, Trump “has every right and responsibility and duty to exercise control over the Department of Justice, right down to, if necessary, specific cases, as to what they bring and what they don’t bring.”
Trump appears to share Paoletta’s view.
In an interview with Time earlier this year, he indicated he would be open to firing federal prosecutors who refuse orders to prosecute someone, saying, “It would depend on the situation.”
Holton, the former U.S. attorney, cautioned that the Department of Justice is a “big apparatus.” Even if the incoming administration were able to magically replace roughly 110,000 career employees overnight, they would still need to move their cases through the courts.
“Every employee of the U.S. Department of Justice took an oath to the Constitution,” Holton said. “They have lived through administration after administration. They’re career people. They’re some of the best and brightest of the legal profession. To think they can be whipsawed by a Bible salesman is naïve.”
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