Molly Redden, ProPublica

Trump administration officials earlier this year killed a federal criminal investigation into the coal empire owned by Sen. Jim Justice, a Republican from West Virginia and a close ally of the president’s.

The investigation examined potential criminal violations of the Clean Water Act by the multistate mining operations largely run by Justice’s son, Jay, according to current and former officials familiar with the matter.

The criminal probe was a significant escalation in the yearslong effort to police serial pollution offenses by Virginia-based Southern Coal and dozens of affiliated mining operations controlled by the family. In the past decade, Southern Coal and other Justice corporations have racked up tens of thousands of alleged violations of the Clean Water Act and have been sued repeatedly by state and federal prosecutors over their failure to properly follow environmental laws at their mining sites.

The investigation shuttered by the Trump administration was a joint effort by prosecutors and investigators with the Environmental Protection Agency, the Department of Justice’s Environmental Crimes Section and the U.S. Attorney’s Office of the Western District of Virginia to probe whether the incessant violations of antipollution laws had risen to the level of criminal behavior, people familiar with the matter said.

People familiar with the investigation told ProPublica that prosecutors believed they had a strong case. They initially had the blessing of Robert Tracci, President Donald Trump’s top official in the Western District of Virginia, to move forward.

But in recent months, as prosecutors battled the Justice companies in court over subpoenas for records, the Office of the Deputy Attorney General shut down the probe. At the time, Todd Blanche still headed the office, before assuming the role of acting attorney general in April.

“They were told ‘pencils down,’” a person familiar with the investigation said.

That prosecutors were even conducting a criminal investigation is noteworthy, people said, because the DOJ only charges a dozen or so criminal Clean Water Act cases each year. It is rare for top DOJ officials to derail a criminal investigation initiated by career officials at such an early stage, people familiar with the case said.

“I’ve never heard of that happening before,” said former federal prosecutor Rick Mountcastle, speaking generally about DOJ protocols. Mountcastle spent 24 years as a prosecutor in the Western District of Virginia. “There shouldn’t be some sort of untouchables list of people who are immune from enforcement.”

The move is part of a pattern of behavior at the top echelons of the DOJ to push cases against Trump’s political adversaries and ease up on allies.

Environmental enforcement against large polluters has plunged under the second Trump administration. Just days after inauguration, the administration reassigned top career environmental lawyers at the DOJ, including those overseeing the Southern Coal case, to work on the president’s immigration crackdown. At the beginning of the year, Blanche personally ordered prosecutors to stand down from cases against diesel emissions cheating.

Steven Ruby, an attorney for the Justice companies, said they became aware of the criminal investigation earlier this year.

“Ultimately the finding of the inquiry by the government was that there wasn’t any evidence to pursue criminal charges,” Ruby said. “There’s never been any intentional wrongdoing by the companies.”

While objecting to the subpoenas in court, the company simultaneously convinced the DOJ to drop the case, he said.

“The Justice companies — because Sen. Justice has been governor and because he’s now a senator — are singled out and put under a microscope, and there’s news coverage of violations and consent decrees and compliance actions,” Ruby said. “But the fact of the matter is that those kinds of issues exist throughout the industry.”

Current and former government officials familiar with the companies’ environmental record called them routine bad actors.

Spokespeople for the EPA and the Western District of Virginia referred questions to the DOJ. Justice’s senate office did not respond to questions.

“There is no case to be made here for a criminal investigation,” Emily Covington, a DOJ spokeswoman, said in an email. “Any career prosecutor who would paint a criminal case as strong is simply a deep state prosecutor continuing to push the priorities of the Biden administration.”

The deputy attorney general’s office is routinely involved with reviewing cases, she added. The office determined that this case was not consistent with the Trump administration’s priorities, she continued, and it was more appropriate to resolve it through the less punitive civil process. “The bottom line is that this was a politically motivated prosecution for a case that can and should be resolved civilly,” she wrote.

The Justice family runs a sprawling coal mining enterprise that extends across the South. Estimates of its fortune fluctuate. Forbes tallied Jim Justice’s net worth to be as much as $1.9 billion until 2021; more recently, it declared him “broke” and facing $1 billion in debt. But environmental groups have accused his companies of misrepresenting their assets to avoid paying environmental penalties.

Ruby said company finances seesaw because coal is a “boom and bust” industry.

Justice, who was first elected governor of West Virginia as a Democrat, announced he had become a Republican at a Trump rally in 2017. Trump backed Justice’s bid for Senate in 2023, amid a contested GOP primary. Justice went on to win the seat, helping Trump clinch a GOP majority in the Senate.

Coal mines often leach dangerous chemicals like arsenic into waterways and are required to strictly monitor pollution discharge and keep it under certain limits. The family’s companies have settled many accusations of environmental violations by agreeing to pay fines and invest in better pollution prevention without admitting or denying culpability.

In recent years, however, the company has repeatedly flouted regulators and the legal process. Jay Justice has been a no-show at court hearings involving Clean Water Act violations in the past, and in 2024 a judge in Alabama issued a civil contempt order against him for his repeated failure to respond to those lawsuits. Ruby, the Justice companies’ lawyer, attributed the violations in that case to surrounding facilities the family does not own. The case is now in mediation.

A number of recent legal proceedings have laid bare the extent to which the Justice companies may have knowingly violated environmental laws, a key threshold for bringing a criminal matter.

Such allegations surfaced in a 2023 civil case brought by the Justice companies’ former chief of environmental compliance Robert Fowler. In the suit, Fowler claimed that Jay Justice blocked him from spending the money necessary to comply with environmental laws, including making court-ordered payments and repairing equipment. As a result, according to emails disclosed in the lawsuit there were at times complaints of near-daily violations of permit water requirements.

In a resignation letter and in subsequent court filings, Fowler said he was concerned the circumstances exposed him to “potential civil and criminal liability.” Fowler declined to comment.

The Justice companies denied Fowler’s accusations. The Justice companies believe the government’s criminal investigation was based primarily on Fowler’s claims, which Ruby dismissed as the allegations of a “disgruntled” former employee.

Last month, a jury in Alabama found that the Justice companies had made false representations to Fowler about his role, but it did not award him the millions of dollars in damages he demanded in his lawsuit. The judge has yet to enter his final ruling.

In the DOJ’s aborted investigation of Southern Coal, prosecutors and federal agents had begun to gather evidence, scrutinizing testimony in the Justices’ various civil trials, and had approached former employees seeking information. Government attorneys also sent subpoenas seeking further documentation, said those familiar with the probe, a move that was opposed by the company’s lawyers.

People familiar with the case said Justice Department attorneys were ready to fight the Justices’ lawyers over the subpoenas.

But before they could move forward, Blanche’s office shut it down.

When top Trump adviser Stephen Miller threatened on May 9 that the administration is “actively looking at” suspending habeas corpus in response to an “invasion” from undocumented immigrants, he was operating on a fringe legal theory that a right-wing faction has been working to legitimize for more than a decade.

“The Constitution is clear — and that of course is the supreme law of the land — that the privilege of the writ of habeas corpus can be suspended in a time of invasion,” Miller said earlier this month in response to a question about Trump’s threat to suspend habeas corpus, the legal right of a prisoner to challenge their detention. Days after Miller’s remarks, Homeland Security Secretary Kristi Noem issued the same warning when a member of a House panel asked her if the number of illegal border crossings meets the threshold for suspending the right. “I’m not a constitutional lawyer,” Noem said. “But I believe it does.”

Hard-liners have referred to immigrants as “invaders” as long as the U.S. has had immigration. By 2022, invasion rhetoric, which had previously been relegated to white nationalist circles, had become such a staple of Republican campaign ads that most of the public agreed an invasion of the U.S. via the southern border was underway.

Now, however, the claim that the U.S. is under invasion has become the legal linchpin of President Donald Trump’s sweeping anti-immigrant campaign.

The claim is Trump’s central justification for invoking the Alien Enemies Act to deport roughly 140 Venezuelans to CECOT, the Salvadoran megaprison, without due process. (The administration cited different legal authority for the remaining deportees.) The Trump administration contends they are members of a gang, Tren de Aragua, that Venezuelan President Nicolás Maduro is directing to infiltrate and operate in the United States. Lawyers and families of many of the deportees have presented evidence the prisoners are not even members of Tren de Aragua.

The contention is also the throughline of Trump’s day one executive order “Protecting the American People Against Invasion.” That document calls for the expansion of immigration removal proceedings without court hearings and for legal attacks against sanctuary jurisdictions, places that refuse to commit local resources to immigration enforcement.

So far, no court has bought the idea that the U.S. is truly under invasion, as defined by the Constitution or the Alien Enemies Act, on the handful of occasions the government has used the argument to justify supercharged immigration enforcement. Four federal judges, including one Trump appointee, have said the situation Trump describes fails to meet the definition of an invasion. Tren de Aragua “may well be engaged in narcotics trafficking, but that is a criminal matter, not an invasion or predatory incursion,” U.S. District Judge Alvin Hellerstein wrote. Indeed, Trump’s own intelligence agencies found that Maduro is not directing the gang. The Supreme Court has not ruled on the question but froze any more deportations without due process on May 16.

The Trump legal push has been in the works for years. After Trump left the White House, two of his loyalists, former Homeland Security official Ken Cuccinelli and his now-two-time budget chief Russell Vought, quietly built a consensus for the invasion legal theory among state Republican officials and ultimately helped persuade Texas to give it a test run in court.

Most legal scholars reject the idea that the wave of undocumented immigration fits the original definition of what an invasion is, but they worry nonetheless. When U.S. District Judge Stephanie L. Haines, a Trump appointee, issued a preliminary ruling earlier this month that allowed Trump to invoke the Alien Enemies Act, she did not label immigrants “invaders.” Instead, she proposed that Tren de Aragua was “the modern equivalent of a pirate or a robber.”

If the Supreme Court ultimately takes up the invasion question, a ruling like Haines’ offers a blueprint for sidestepping the issue while giving Trump what he wants, or for embracing the invasion theory wholesale, legal scholars said.

“All this really comes down to the issue of whether the United States Supreme Court is going to allow a president to behave essentially as an autocratic dictator if he’s prepared to make entirely fictitious factual declarations that trigger monarchical power,” said Frank Bowman, a legal historian and professor emeritus at the University of Missouri School of Law.

Under the Constitution, if the United States is invaded, Congress has the power to call up the militia and can allow the suspension of habeas corpus, the constitutional right that is the core of due process. The states, which are normally forbidden from unilaterally engaging in war, can do so according to the Constitution if they are “actually invaded.”

The Alien Enemies Act, an 18th century wartime law enacted during a naval conflict with France, also rests on the definition of an invasion. It allows the president to expel “aliens” during “any invasion or predatory incursion … by any foreign nation or government.” It has only ever been invoked three times, during the War of 1812 and World Wars I and II.

Habeas corpus has likewise been suspended only a handful of times in the Constitution’s nearly 240-year history, including during Reconstruction, to put down violent rebellions in the South by the Ku Klux Klan; in 1905, to suppress the Moro uprising against U.S. control of the Philippines; and in Hawaii after Pearl Harbor in order to place Japanese Americans under martial law. In each of these cases, the executive branch acted after receiving permission from Congress.

An exception was in 1861, when President Abraham Lincoln unilaterally suspended habeas corpus at the outbreak of the Civil War. This provoked a direct confrontation with Supreme Court Chief Justice Roger Taney, who ruled that only Congress was empowered to take such an extraordinary step. Congress later papered over the conflict by voting to give Lincoln the authority for the war’s duration.

Today, nearly every historian and constitutional scholar is in agreement that, when it comes to suspending habeas, Congress has the power to decide if the conditions are met.

“The Constitution does not vest this power in the President,” future Supreme Court Justice Amy Coney Barrett wrote in 2014. “Scholars and courts have overwhelmingly endorsed the position that, Lincoln’s unilateral suspensions of the writ notwithstanding, the Constitution gives Congress the exclusive authority to decide when the predicates specified by the Suspension Clause are satisfied.” Even then, the Constitution only allows Congress to act in extreme circumstances — “when in Cases of Rebellion or Invasion the public Safety may require it.”

Ilya Somin, a law professor at George Mason University who has closely followed these arguments, argues there is virtually no evidence that the drafters of the Constitution thought of an “invasion” as anything other than the kind of organized incursion that would traditionally spark a war.

“The original meaning of ‘invasion’ in the Constitution is actually what sort of the average normal person would think it means,” Somin said. “As James Madison put it, invasion is an operation of war. What Vladimir Putin did to Ukraine, that’s an invasion. What Hamas did to Israel, that’s an invasion. On the other hand, illegal migration, or drug smuggling, or ordinary crime — that’s not an invasion.”

In 1994, Florida Democratic Gov. Lawton Chiles Jr. filed the first modern-day lawsuit arguing otherwise. The Haitian and Cuban refugee crises had spawned a new wave of anti-immigration sentiment, and hard-liners accused the federal government of owing states billions for handling immigrants’ supposed crimes and welfare claims. Chiles, who died in 1998, took the concept one step further. He filed a $1.5 billion suit claiming the U.S. had violated the section of the Constitution stating the federal government “shall protect each [state] against Invasion.”

Federal courts slapped down his lawsuit — and a spate of copycatsuits from Arizona, California, New York and New Jersey — and the legal case for calling immigration an invasion died out.

In the late 2000s, a group of far-right voices began to revive this approach. Ken Cuccinelli was among the first and most strident. He was an early member of State Legislators for Legal Immigration, part of a powerful network of anti-immigration groups that pioneered efforts like ending birthright citizenship. The organization contended that immigrants were “foreign invaders” as described in the Constitution.

Cuccinelli evangelized for the theory as he rose from a state legislator to an official in Trump’s first Department of Homeland Security.

“Under war powers, there’s no due process,” Cuccinelli told Breitbart radio shortly before his appointment in the first Trump administration. “They can literally just line their National Guard up with, presumably with riot gear like they would if they had a civil disturbance, and turn people back at the border. … You just point them back across the river and let them swim for it.”

Cuccinelli got traction after Trump’s reelection loss. He joined a think tank Vought had founded as its immigration point man. During his time in the first Trump administration, Vought became frustrated that the president’s goals were frequently thwarted. He founded the Center for Renewing America, dedicated to a sweeping vision of remaking the government and society — what ultimately became Project 2025.

In remarks to a private audience at his think tank in 2023, Vought, who is now Trump’s budget chief and the intellectual force behind Trump’s unprecedented executive power grab, said he specifically championed the term “invasion” because it “unlocked” extraordinary presidential powers.

“One of the reasons why we were very, so insistent about coming up with the whole notion of the border being an ‘invasion’ because there were Constitutional authorities that were a part of being able to call it an invasion,” Vought said. Documented and ProPublica obtained videos of Vought’s speech last year. Vought and Cuccinelli did not respond to requests for comment.

In 2021 and 2022, Cucinelli, with Vought’s help, mounted press conferences and privately urged Gov. Doug Ducey of Arizona and Gov. Greg Abbott of Texas to proclaim that their states were being invaded.

After Arizona’s then-attorney general, Mark Brnovich, released a legal opinion in February 2022 proclaiming violent cartels had “actually invaded” and opened the door for Ducey to deploy the state’s National Guard, Vought bragged to his audience that he and Cuccinelli had personally provided draft language for the opinion. In a previous email to ProPublica, Brnovich acknowledged speaking to Cuccinelli but said his opinion was “drafted and written by hard working attorneys (including myself) in our office.”

Ducey never acted on the invasion theory. But Abbott was more receptive. He invoked the state’s war powers, citing the “actually invaded” clause, in a 2022 open letter to President Joe Biden. “Two years of inaction on your part now leave Texas with no choice,” he wrote. Andrew Mahaleris, a spokesperson for Abbott, said the governor “declared an invasion due to the Biden Administration’s repeated failures in upholding its constitutional duty to secure the border and defend states.”

Abbott ordered the banks of the Rio Grande river to be strung with razor wire and a shallow section to be obstructed by a 1,000-foot string of man-sized buoys and blades and signed a law, S.B. 4, giving state authorities the power to deport undocumented immigrants.

When the Justice Department sued, Abbott’s administration argued in legal briefs that its actions were justified in part because his state was under “invasion.” Twenty-three Republican attorneys general filed a brief in agreement.

“In both scope and effect, the wave of illegal migrants pouring across the border is like an invasion,” their brief read. “The Constitution’s text, the principle of sovereignty in the federal design, and the broader constitutional structure all support the conclusion that the States have a robust right to engage in self-defense. Contained within that right is presumptively acts to repel invasion.”

Texas’ invasion argument did not prevail. The 5th Circuit has blocked S.B. 4., and a lower court and a three-judge panel skewered Abbott’s constitutional argument in the buoy case. In 2024, the full 5th Circuit ruled under another law that Abbott was entitled to leave the floating barriers in place. It avoided ruling on Texas’ invasion claim altogether — but not without one judge dissenting. Trump appointee James Ho argued courts have no ability to second-guess executives about which threats rise to the level of an invasion and justify military action.

In his speech, Vought credited “the massive take-up rate” of the invasion legal theory to his and Cuccinelli’s behind-the-scenes efforts. Now the concept is being taken seriously by the president’s top advisers as they threaten to upend a core civil liberty.

“The definition of ‘invasion’ has broad implications for civil liberties — that’s pretty obvious,” Somin said. “They’re trying to use this as a tool to get around constitutional and other legal constraints on deportation and exclusion that would otherwise exist. But they also want to use it to undermine civil liberties” for U.S. citizens.