What it looks like when a Justice System Gets "Weaponized"

The Flagrant Red Flags that Help Distinguish when our Justice System is actually being used Improperly

We hear a lot these days about “weaponization” of the justice system. That’s for two reasons:

• One, MAGA Republicans’ dear leader is a convicted criminal, and only dodged proper sentencing and further criminal charges by getting elected and receiving sweeping presidential immunity from a Supreme Court he stacked with right-wing justices. It’s a convenient narrative to blame the system’s “weaponization,” diverting focus away from the fact that their leader is a convicted criminal.

• Two, for those pursuing autocracy, accusations signal intentions. It’s a honed technique—you blame the other side for what you intend to do, so that when you’re caught, it looks like offsetting penalties. We all do it. Consider, for instance, the baseless “Biden Crime Family” taunt.

The concern with the term being thrown around too loosely is that it obscures or makes normal the genuine incidents of weaponization of the justice system, such as one that is currently unfolding before us.

It began with jobseekers sucking up to their dear leader, in this instace by seeking to discredit and seize a multi-billion-dollar fund aimed at reducing climate change dangers. This fund was set up by Congress, maintained at a private bank, and overseen by the EPA. Given the dear leader’s claim that climate change is a “hoax” (his catchphrase for the truest things he doesn’t like), this climate fund, appropriated by Congress, became a MAGA target.

They ran into a problem, however. The Constitution gives the president limited veto power over congressional spending, with both a time limit and the right of Congress to override it. Had there been a timely veto, Congress would have had the power to override it. But the veto time limit for these appropriated funds is long, long over. The funds were properly appropriated in August 2022 when President Biden signed the Inflation Reduction Act; awarded in April 2024 (giving the recipients legal rights to the funds); and distributed to the bank, who would serve as the financial agent for the recipients.

That left MAGA only one angle to block the grants: to claim that there was somehow fraud at play, and that the funds had to be frozen to prevent anyone from absconding with them.

Enter Acting Deputy Attorney General Emil Bove and interim United States Attorney for the District of Columbia Ed Martin (an activist MAGA type who had criticized the fund even before he was appointed). Martin asked his office to not just seek a freeze order, but to open a criminal investigation so he could assert that their ongoing investigation justified freezing the funds. His problem? He couldn’t point to a crime.

The career staff at the US Attorney’s office, including the criminal division chief, identified that it is a violation of prosecutorial ethics and Department policy to launch a criminal investigation with no evidence of a crime—in other words, with none of what prosecutors would call “predication.” Such a warning is a red flag.

{Fake “Weaponization” Alert: In the criminal proceedings against Trump, despite his fleet of lawyers challenging everything in sight, there was never a successful challenge alleging any violation of professional ethics or Department policies.}

The MAGA interim US Attorney did not listen to that warning. Instead, he fired — or, rather, forced the resignation of — Denise Cheung, the attorney and 24-year veteran of the department, who was the professional career chief of his criminal division. That’s another big red flag.

{Fake “Weaponization” Alert: In the Trump criminal cases, no one ever had to browbeat, threaten to fire, or force the resignation of any prosecutor.}

With Cheung out of the way, this political appointee could find no other staff prosecutor in the office who would pursue the matter. In the Nixon “Saturday Night Massacre,” they had to fire all the way down to Robert Bork, who first achieved notoriety by doing the dirty deed. Here, there was no “Bork” — no one would step in from this big federal prosecution office. Yet another red flag.

{Fake “Weaponization” Alert: Never, in a case against Trump, has there been no career prosecutor willing to pursue the given matter.}

So, Martin was forced to proceed in his own name. As a former U.S. Attorney, I can assure you that is very, very, very rare. There is almost always a career attorney’s signature on every pleading filed.

{Fake Weaponization Alert: No case against Trump ever saw a pleading without a career prosecutor’s signature.}

It’s worth bearing in mind that Martin was not some rare legal whiz — he had never spent one day as a federal prosecutor. He was a pre-beginner, fumbling around by his lone MAGA self.

When he presented his request to the federal magistrate judge, the judge denied the petition. Wow! That, again, almost never happens. Its occurrence amounts to a massive, flapping red flag. Federal prosecutors do not want to put a judge in that position. It reflects poorly on the prosecutor and on the office. Extensive effort goes into bomb-proofing every federal warrant application to ensure they are ironclad. In my U.S. Attorney’s office, a federal judge shooting down a warrant application would have set off a slew of internal inquiries and reviews. That should be a “never event.” It’s a shocker, particularly with the US Attorney presenting the petition in person.

{Fake “Weaponization” Alert: No Trump case ever suffered a rejection like this; the warrants for Mar-a-Lago were authorized by the federal court.}

Even that disaster didn’t stop the scheme. Somebody started shopping the case to other US Attorneys, hoping another office would try again and follow this disaster in the D.C. federal district court.

Though there are no offices that have yet been willing to go before any court, somehow, FBI agents down in Florida started questioning EPA employees about the grant program. Case-shopping around US Attorneys’ offices after the matter has been shot down in court is yet another red flag.

{Fake “Weaponization” Alert: No Trump case was ever shot down and then sought to be rebooted in another district.}

In addition to this prosecutive fiasco was a barrage of public comments, both from the Ed Martin and the EPA administrator, trying to flood the information zone with public accusations of fraud—precisely the accusations that the career staff and magistrate judge had determined to be unfounded and that, according to a federal judge, DOJ and EPA have offered “no evidence to support.” Unfounded accusations of fraud are what lawyers call “defamatory per se.” The administration officials’ public comments are out of bounds.

{Fake “Weaponization” Alert: Never in the cases against Trump did any administration official ever make public comments about Trump’s guilt; the Department of Justice did not speak of it outside of its pleadings about the case.}

What they are doing now is real weaponization. It’s a clear illustration of the difference between false claims of weaponization used in a massive political propaganda campaign, and actual weaponization. All the red flags of weaponization are flying: internal warnings that the case had no merit; removing officials for disagreement; proceeding without a career attorney; getting shot down by the magistrate judge; case-shopping after the disaster.

It is both revealing and incumbent on us to remember that none of these ever happened in any of the federal cases against Trump.