Between Eric Holder’s soft-on-crime memo, James Comey’s election meddling, and Jack Smith’s incessant lawfare, the United States Department of Justice has spent much of the last two decades in the proverbial wilderness. The incoming Trump administration has the opportunity and incentive to reshape DOJ. Here are five steps it can take to restore a department in desperate need of change.
Row the boat or get thrown overboard.
It’s time for line federal prosecutors — Assistant United States Attorneys — to get back to work. In 2010, federal prosecutors brought 68,591 new federal criminal cases. By 2023, the same number of U.S. attorneys were handling just 49,913 new cases, a huge drop. You would have to go back to 1998 to find a year with fewer federal prosecutions.
The reduction in federal prosecutions was fueled by the so-called “Holder Memo” during the Obama administration, in which attorney general Eric Holder told federal prosecutors to reduce the imposition of mandatory minimum sentences and sentencing enhancements on drug traffickers, resulting in both fewer worthwhile federal cases and a dropoff in cooperation by drug dealers in helping to solve other crimes. While the Trump administration rescinded the 2013 memo, Attorney General Merrick Garland issued his own de-prosecution edict in 2022, mimicking Holder’s prior instructions.
Compounding the problem, DOJ still has not ordered line prosecutors back to the office full-time. A federal judge in Texas lamented prosecutors’ poor performance and failure to appear at hearings, and noted that the department’s permissive telework policies led to attorneys “being unresponsive or unreachable during working hours.” Memo to DOJ: the pandemic is over.
Get out of politics.
Then-FBI director James Comey injected himself into the 2016 presidential election. Since his appointment in 2022, Special Counsel Jack Smith has hounded Donald Trump with now-abandoned legal theories. To the extent that these strategies were intended to derail Trump’s campaign, they backfired. But they succeeded in convincing many Americans that DOJ’s leadership is untrustworthy and politically motivated.
The department must return to its traditional crime-fighting role and abandon partisan crusades. Its leadership should stay out of the political fray. Its prosecutors should stick to chasing the multitude of criminals violating the laws of the United States, instead of relying on tortured interpretations of obscure federal statutes to pursue political opponents.
Protect cities.
American urban centers have been subjected to a doomed social experiment called “progressive prosecution.” The theory, which holds that declining to prosecute supposedly low-level offending would reduce crime, has been tested and proved an utter failure, and voters in cities including Los Angeles, Portland, San Francisco, Chicago, and Oakland have now rejected these non-prosecuting prosecutors. In some cities, however, such as Philadelphia and New York City, the urban poor continue to suffer under George Soros-backed prosecutors.
Criminal law exists to protect the poor and the weak. When local prosecutors fail to do their job, DOJ can step in, prosecuting violations of federal carjacking, drug trafficking, commercial robbery, and firearms statutes. In the early 2000s, the department launched Project Safe Neighborhoods, in which it teamed up with local prosecutors to break up criminal gangs and enforce federal law. DOJ helped to make cities safe before; it can do so again.
Additionally, Congress should fund the recruitment of local police officers, helping localities restock their depleted ranks. The International Association of Chiefs of Police just released their update on the “continuing crisis” of understaffed departments across the United States.
Attack the drug pipeline.
According to the 2024 Drug Enforcement Administration threat assessment, drugs are responsible for a staggering share of deaths in the United States. Overdoses remain a devastating problem, with more than 100,000 fatalities in each of the past three years. Additionally, the inevitable violence associated with drug-trafficking organizations such as the Jalisco and Sinaloa cartels, and more recently with Tren de Aragua, contribute to homicides and non-fatal shootings.
While a cadre of hard-driving federal prosecutors remains assigned to handle drug crimes, the Garland DOJ’s memo continues to hobble these prosecutors’ efforts to crack down on serious drug trafficking organizations. The second Trump administration can take the handcuffs off DOJ’s prosecutors and put them on drug cartel members instead.
Crack down on terrorism.
China hacked the telecommunications grid and intercepted messages to and from top American government officials. Russia snuck remotely detonated explosives into shipping containers, potentially allowing airplanes to be destroyed mid-flight. Iran spent the last year trying to assassinate Donald Trump. Suspects on the terrorism watch list crept into the United States through our porous southern border. The China-Russia-Iran-North Korea axis of chaos employed local criminal gangs to carry out disruption and sabotage within the United States.
The incoming administration must thwart these state actors from further harming the nation and its citizens. This will require infiltrating groups who imperil our security, conducting vigorous digital surveillance, and moving from a defensive crouch to an offensive posture. DOJ has a stark choice: react to terrorism after it happens or proactively destroy terrorist organizations. This is hard work for serious people.
Pursuing work in these five areas can help return DOJ to its core mission of enforcing the law and protecting Americans. The clock is ticking.
Tom Hogan has served as a federal prosecutor, local prosecutor, and elected district attorney in Chester County. He currently is a law professor. This piece originally appeared in City Journal.
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