ICE examined implications of expelling foreign nationals from the US for their political beliefs, unsealed documents show
Erum Salam
Carrie DeCell, a senior staff attorney at the Knight First Amendment Institute and a lecturer in law at Columbia Law School, said the memos’ revelation is significant in that it lays out in detail why such a policy would be unconstitutional.
DeCell said: “These memos make it clear that government lawyers themselves have carefully considered whether proposals to remove people from the country based on their political speech [and] proposals removing people for endorsing terrorism are constitutional, and they concluded that, in many contexts, the answer is likely no.”
The news of the memos and its conclusions comes at a time when Republican politicians have called for the expulsion of some foreign nationals in the US who have been protesting against the Israeli war in Gaza in the wake of a Hamas attack on Israel that killed 1,400 people and saw more than 220 hostages taken. The Israeli military assault on Gaza has now killed more than 9,000 people, many of them children, according to local officials
THE GUARDIAN
Mon 6 Nov 2023
During Donald Trump’s presidency, Immigration and Customs Enforcement (Ice) considered the implications of expelling foreign nationals from the US for their political beliefs, newly unsealed documents have revealed.
The two memos were written and revised by the US immigration enforcement agency and top White House lawyers in the Trump administration and recently obtained by Columbia University’s Knight First Amendment Institute via a Freedom of Information Act (Foia) lawsuit filed in 2017.
The memos examined intentions to perform ideological screenings on foreign nationals in the US, but ultimately concluded such a plan would be illegal to implement.
The first memo addresses constitutional constraints on what the former US president in 2016 called the “extreme vetting” of noncitizens through the use of ideological “screenings tests”.
“It seems likely that at least a large fraction of those aliens located in the United States who would be the subject of the vetting would be able to assert various constitutional rights. We therefore recommend assessing proposals being considered on the assumption that the aliens within the United States are generally protected by the constitution,” it read.
One constraint in particular explored what could happen in the case of mistakenly including an individual on a watchlist. “There may also be claims against programs related to vetting that are targeted against particular individuals or groups, alleging that the targeting itself is on an impermissible basis,” the memo stated.
The second memo addressed more specifically, people who “endorse or espouse terrorism”. It concluded that allowing for the exclusion or removal of these people would be unconstitutional, since a person cannot be targeted based on seemingly expressing support for terrorist-related activity due to their first amendment rights.
The memo reads: “The security-related inadmissibility ground for endorsing or espousing terrorist activity targets speech that demonstrates a degree of public approval or public advocacy for terrorist activity. Depending on an alien’s immigration status, contacts with the United States, and location, first amendment concerns may limit use of this inadmissibility ground.
“In cases involving aliens within the United States interior – lawful permanent residents either inside or outside the United States, or aliens outside the United States who have significant US contacts, first amendment protections could apply.”
The lawsuit was born in the aftermath of then president Trump’s announcement of “extreme vetting” immigrants to the US and the “total and complete shutdown of Muslims entering the United States” – a move that drew the ire of the Muslim American community and civil rights groups.
The goal of the Foia lawsuit was to explore how this policy could be legally justified, lawyers from the Knight First Amendment Institute said.
Under US law, non-US citizens have constitutional rights, including the right to free speech found in the first amendment of the US constitution.
If the policy explored in the memos had gone into effect during Trump’s time in office, foreign student visa holders and other foreign nationals could have been at risk of deportation for expressing attitudes that did not align with those of the US government – a gross violation of the first amendment right to free speech, say legal experts.
During Donald Trump’s presidency, Immigration and Customs Enforcement (Ice) considered the implications of expelling foreign nationals from the US for their political beliefs, newly unsealed documents have revealed.
The two memos were written and revised by the US immigration enforcement agency and top White House lawyers in the Trump administration and recently obtained by Columbia University’s Knight First Amendment Institute via a Freedom of Information Act (Foia) lawsuit filed in 2017.
The memos examined intentions to perform ideological screenings on foreign nationals in the US, but ultimately concluded such a plan would be illegal to implement.
The first memo addresses constitutional constraints on what the former US president in 2016 called the “extreme vetting” of noncitizens through the use of ideological “screenings tests”.
“It seems likely that at least a large fraction of those aliens located in the United States who would be the subject of the vetting would be able to assert various constitutional rights. We therefore recommend assessing proposals being considered on the assumption that the aliens within the United States are generally protected by the constitution,” it read.
One constraint in particular explored what could happen in the case of mistakenly including an individual on a watchlist. “There may also be claims against programs related to vetting that are targeted against particular individuals or groups, alleging that the targeting itself is on an impermissible basis,” the memo stated.
The second memo addressed more specifically, people who “endorse or espouse terrorism”. It concluded that allowing for the exclusion or removal of these people would be unconstitutional, since a person cannot be targeted based on seemingly expressing support for terrorist-related activity due to their first amendment rights.
The memo reads: “The security-related inadmissibility ground for endorsing or espousing terrorist activity targets speech that demonstrates a degree of public approval or public advocacy for terrorist activity. Depending on an alien’s immigration status, contacts with the United States, and location, first amendment concerns may limit use of this inadmissibility ground.
“In cases involving aliens within the United States interior – lawful permanent residents either inside or outside the United States, or aliens outside the United States who have significant US contacts, first amendment protections could apply.”
The lawsuit was born in the aftermath of then president Trump’s announcement of “extreme vetting” immigrants to the US and the “total and complete shutdown of Muslims entering the United States” – a move that drew the ire of the Muslim American community and civil rights groups.
The goal of the Foia lawsuit was to explore how this policy could be legally justified, lawyers from the Knight First Amendment Institute said.
Under US law, non-US citizens have constitutional rights, including the right to free speech found in the first amendment of the US constitution.
If the policy explored in the memos had gone into effect during Trump’s time in office, foreign student visa holders and other foreign nationals could have been at risk of deportation for expressing attitudes that did not align with those of the US government – a gross violation of the first amendment right to free speech, say legal experts.
Carrie DeCell, a senior staff attorney at the Knight First Amendment Institute and a lecturer in law at Columbia Law School, said the memos’ revelation is significant in that it lays out in detail why such a policy would be unconstitutional.
DeCell said: “These memos make it clear that government lawyers themselves have carefully considered whether proposals to remove people from the country based on their political speech [and] proposals removing people for endorsing terrorism are constitutional, and they concluded that, in many contexts, the answer is likely no.”
The news of the memos and its conclusions comes at a time when Republican politicians have called for the expulsion of some foreign nationals in the US who have been protesting against the Israeli war in Gaza in the wake of a Hamas attack on Israel that killed 1,400 people and saw more than 220 hostages taken. The Israeli military assault on Gaza has now killed more than 9,000 people, many of them children, according to local officials
In an address to his supporters in Iowa last month, Trump, who is the leading Republican presidential candidate for 2024, brought up the idea again and said if he returns to the White House, he would revoke student visas of “radical, anti-American and antisemitic foreigners”.
He also vowed to bar refugees from Gaza, cut off any funding to Palestinians and expand a Muslim ban he tried to implement during his first term that targeted immigrants from several majority-Muslim countries.
Florida’s Republican governor Ron DeSantis, who is also vying for the 2024 Republican presidential nomination, also expressed support for deporting international students who he believed support Hamas. DeSantis took action against protesters in his state by banning Students for Justice in Palestine (SJP), a popular pro-Palestinian student organization, from Florida’s university system.
DeSantis said: “You don’t have a right to be here on a visa. You don’t have a right to be studying in the United States.”
Another Republican presidential candidate, the South Carolina senator Tim Scott, said on an episode of the Sean Hannity radio show: “If any of those students on college campuses are foreign nationals on a visa, they should be sent back to their country.”
Experts fear that such remarks – and the existence of the Ice memos – reveal a continuing desire by rightwing Republicans to bring about such a policy, despite the clear problems outlined in the memos.
They also fear that aside from targeting potential extremists in the US, such a policy would risk also sweeping up many people simply expressing support for Palestinian rights or criticizing Israeli actions or many other political opinions that might be at odds with US government policy.
DeCell said it was a cautionary tale to those considering similar policies.
“These memos speak to the vagueness of the proposals that former President Trump and other Republican candidates have been putting forward to revoke student visas or remove people from the country based on their political speech.”
He also vowed to bar refugees from Gaza, cut off any funding to Palestinians and expand a Muslim ban he tried to implement during his first term that targeted immigrants from several majority-Muslim countries.
Florida’s Republican governor Ron DeSantis, who is also vying for the 2024 Republican presidential nomination, also expressed support for deporting international students who he believed support Hamas. DeSantis took action against protesters in his state by banning Students for Justice in Palestine (SJP), a popular pro-Palestinian student organization, from Florida’s university system.
DeSantis said: “You don’t have a right to be here on a visa. You don’t have a right to be studying in the United States.”
Another Republican presidential candidate, the South Carolina senator Tim Scott, said on an episode of the Sean Hannity radio show: “If any of those students on college campuses are foreign nationals on a visa, they should be sent back to their country.”
Experts fear that such remarks – and the existence of the Ice memos – reveal a continuing desire by rightwing Republicans to bring about such a policy, despite the clear problems outlined in the memos.
They also fear that aside from targeting potential extremists in the US, such a policy would risk also sweeping up many people simply expressing support for Palestinian rights or criticizing Israeli actions or many other political opinions that might be at odds with US government policy.
DeCell said it was a cautionary tale to those considering similar policies.
“These memos speak to the vagueness of the proposals that former President Trump and other Republican candidates have been putting forward to revoke student visas or remove people from the country based on their political speech.”
Americans seem alarmingly open to Trump's 'revenge' campaign: ABC's Jon Karl
Brad Reed
Trump and allies plot revenge, Justice Department control in a second term
Advisers have also discussed deploying the military to quell potential unrest on Inauguration Day. Critics have called the ideas under consideration dangerous and unconstitutional.
By Isaac Arnsdorf, Josh Dawsey and Devlin Barrett
Updated November 6, 2023
Washington Post
Former president Donald Trump at the courthouse in Manhattan on Oct. 17.
Brad Reed
RAW STORY
November 6, 2023
WASHINGTON, DC - SEPTEMBER 15: Republican presidential candidate former President Donald Trump speaks at the Pray Vote Stand Summit at the Omni Shoreham Hotel on September 15, 2023 in Washington, DC. The summit featured remarks from multiple 2024 Republican Presidential candidates making their case to the conservative audience members.
November 6, 2023
WASHINGTON, DC - SEPTEMBER 15: Republican presidential candidate former President Donald Trump speaks at the Pray Vote Stand Summit at the Omni Shoreham Hotel on September 15, 2023 in Washington, DC. The summit featured remarks from multiple 2024 Republican Presidential candidates making their case to the conservative audience members.
(Photo by Anna Moneymaker/Getty Images).
ABC News' Jonathan Karl on Monday expressed alarm that American voters seem open to giving former President Donald Trump a second term despite his overtly authoritarian calls to enact revenge against a wide array of public figures.
Appearing on "Good Morning America," Karl outlined the dramatic stakes when it comes to the 2024 election.
"I don't think voters have come to terms with what he is talking about doing," he said. "He's talking about a campaign of revenge and retribution... He wants to go out and prosecute his political opponents. Not just Democrats, but people who served him. John Kelly, his former chief of staff, Mattis, his former defense secretary, Bill Barr, his former attorney general."
Karl then questioned Americans whether unhappiness with gas prices was really worth enabling this kind of raw authoritarianism.
"Are voters really ready to sign up for that?" he asked. "He's talking about invoking the Insurrection Act on day one, using American troops on the streets of U.S. cities, something he tried to do when he was president last time but he was stopped by his own people."
Karl concluded with an ominous warning that "this would be a very radical Trump presidency, much more so than even the first one."
Watch the video below or at this link.
ABC News' Jonathan Karl on Monday expressed alarm that American voters seem open to giving former President Donald Trump a second term despite his overtly authoritarian calls to enact revenge against a wide array of public figures.
Appearing on "Good Morning America," Karl outlined the dramatic stakes when it comes to the 2024 election.
"I don't think voters have come to terms with what he is talking about doing," he said. "He's talking about a campaign of revenge and retribution... He wants to go out and prosecute his political opponents. Not just Democrats, but people who served him. John Kelly, his former chief of staff, Mattis, his former defense secretary, Bill Barr, his former attorney general."
Karl then questioned Americans whether unhappiness with gas prices was really worth enabling this kind of raw authoritarianism.
"Are voters really ready to sign up for that?" he asked. "He's talking about invoking the Insurrection Act on day one, using American troops on the streets of U.S. cities, something he tried to do when he was president last time but he was stopped by his own people."
Karl concluded with an ominous warning that "this would be a very radical Trump presidency, much more so than even the first one."
Watch the video below or at this link.
Advisers have also discussed deploying the military to quell potential unrest on Inauguration Day. Critics have called the ideas under consideration dangerous and unconstitutional.
By Isaac Arnsdorf, Josh Dawsey and Devlin Barrett
Updated November 6, 2023
Washington Post
Former president Donald Trump at the courthouse in Manhattan on Oct. 17.
(John Taggart for The Washington Post)
Donald Trump and his allies have begun mapping out specific plans for using the federal government to punish critics and opponents should he win a second term, with the former president naming individuals he wants to investigate or prosecute and his associates drafting plans to potentially invoke the Insurrection Act on his first day in office to allow him to deploy the military against civil demonstrations.
In private, Trump has told advisers and friends in recent months that he wants the Justice Department to investigate onetime officials and allies who have become critical of his time in office, including his former chief of staff, John F. Kelly, and former attorney general William P. Barr, as well as his ex-attorney Ty Cobb and former Joint Chiefs of Staff chairman Gen. Mark A. Milley, according to people who have talked to him, who, like others, spoke on the condition of anonymity to describe private conversations. Trump has also talked of prosecuting officials at the FBI and Justice Department, a person familiar with the matter said.
In public, Trump has vowed to appoint a special prosecutor to “go after” President Biden and his family. The former president has frequently made corruption accusations against them that are not supported by available evidence.
To facilitate Trump’s ability to direct Justice Department actions, his associates have been drafting plans to dispense with 50 years of policy and practice intended to shield criminal prosecutions from political considerations. Critics have called such ideas dangerous and unconstitutional.
“It would resemble a banana republic if people came into office and started going after their opponents willy-nilly,” said Saikrishna Prakash, a constitutional law professor at the University of Virginia who studies executive power. “It’s hardly something we should aspire to.
Much of the planning for a second term has been unofficially outsourced to a partnership of right-wing think tanks in Washington. Dubbed “Project 2025,” the group is developing a plan, to include draft executive orders, that would deploy the military domestically under the Insurrection Act, according to a person involved in those conversations and internal communications reviewed by The Washington Post. The law, last updated in 1871, authorizes the president to deploy the military for domestic law enforcement.
The proposal was identified in internal discussions as an immediate priority, the communications showed. In the final year of his presidency, some of Trump’s supporters urged him to invoke the Insurrection Act to put down unrest after the murder of George Floyd in the summer of 2020, but he never did it. Trump has publicly expressed regret about not deploying more federal force and said he would not hesitate to do so in the future.
Trump campaign spokesman Steven Cheung did not answer questions about specific actions under discussion. “President Trump is focused on crushing his opponents in the primary election and then going on to beat Crooked Joe Biden,” Cheung said. “President Trump has always stood for law and order, and protecting the Constitution.”
The discussions underway reflect Trump’s determination to harness the power of the presidency to exact revenge on those who have challenged or criticized him if he returns to the White House. The former president has frequently threatened to take punitive steps against his perceived enemies, arguing that doing so would be justified by the current prosecutions against him. Trump has claimed without evidence that the criminal charges he is facing — a total of 91 across four state and federal indictments — were made up to damage him politically.
“This is third-world-country stuff, ‘arrest your opponent,’” Trump said at a campaign stop in New Hampshire in October. “And that means I can do that, too.”
Special counsel Jack Smith, Attorney General Merrick Garland and Biden have all said that Smith’s prosecution decisions were made independently of the White House, in accordance with department rules on special counsels.
Trump, the clear polling leader in the GOP race, has made “retribution” a central theme of his campaign, seeking to intertwine his own legal defense with a call for payback against perceived slights and offenses to right-wing Americans. He repeatedly tells his supporters that he is being persecuted on their behalf and holds out a 2024 victory as a shared redemption at their enemies’ expense.
‘He is going to go after people that have turned on him’
It is unclear what alleged crimes or evidence Trump would claim to justify investigating his named targets.
Kelly said he would expect Trump to investigate him because since his term as chief of staff ended, he has publicly criticized Trump, including by alleging that he called dead service members “suckers.” Kelly added, “There is no question in my mind he is going to go after people that have turned on him.”
Barr, another Trump appointee turned critic, has contradicted the former president’s false claims about the 2020 election and called him “a very petty individual who will always put his interests ahead of the country’s.” Asked about Trump’s interest in prosecuting him, Barr deadpanned, “I’m quivering in my boots.”
“Trump himself is more likely to rot in jail than anyone on his alleged list,” said Cobb, who accused Trump of “stifling truth, making threats and bullying weaklings into doing his bidding.”
Milley did not comment.
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Then-White House Chief of Staff John F. Kelly listens as then-President Donald Trump leads a working lunch with governors in the Roosevelt Room of the White House in 2018. (Jabin Botsford/The Washington Post)
Other modern presidents since the Watergate scandal — when Richard M. Nixon tried to suppress the FBI’s investigation into his campaign’s spying and sabotage against Democrats — have sought to separate politics from law enforcement. Presidents of both parties have imposed a White House policy restricting communications with prosecutors. An effort under the George W. Bush administration to remove U.S. attorneys for political reasons led to high-level resignations and a criminal investigation.
Rod J. Rosenstein, the Trump-appointed deputy attorney general who oversaw the investigation by special counsel Robert S. Mueller III into Russian interference in the 2016 election, said a politically ordered prosecution would violate the 14th Amendment’s guarantee of equal protection under law and could cause judges to dismiss the charges. That constitutional defense has rarely been raised in U.S. history, Rosenstein said.
“Making prosecutorial decisions in a nonpartisan manner is essential to democracy,” Rosenstein said. “The White House should not be meddling in individual cases for political reasons.”
But Trump allies such as Russ Vought, his former budget director who now leads the Center for Renewing America, are actively repudiating the modern tradition of a measure of independence for the Department of Justice, arguing that such independence is not based in law or the Constitution. Vought is in regular contact with Trump and would be expected to hold a major position in a second term.
“You don’t need a statutory change at all, you need a mind-set change,” Vought said in an interview. “You need an attorney general and a White House Counsel’s Office that don’t view themselves as trying to protect the department from the president.”
A fixation on prosecuting enemies
As president, Kelly said, Trump would often suggest prosecuting his political enemies, or at least having the FBI investigate them. Kelly said he would not pass along the requests to the Justice Department but would alert the White House Counsel’s Office. Usually, they would ignore the orders, he said, and wait for Trump to move on. In a second term, Trump’s aides could respond to such requests differently, he said.
“The lesson the former president learned from his first term is don’t put guys like me … in those jobs,” Kelly said. “The lesson he learned was to find sycophants.”
Although aides have worked on plans for some other agencies, Trump has taken a particular interest in the Justice Department. In conversations about a potential second term, Trump has made picking an attorney general his number one priority, according a Trump adviser.
“Given his recent trials and tribulations, one would think he’s going to pick up the plan for the Department of Justice before doing some light reading of a 500-page white paper on reforming the EPA,” said Matt Mowers, a former Trump White House adviser.
Jeffrey Clark, a fellow at Vought’s think tank, is leading the work on the Insurrection Act under Project 2025. The Post has reported that Clark is one of six unnamed co-conspirators whose actions are described in Trump’s indictment in the federal election interference case.
Clark was also charged in Fulton County, Georgia, with violating the state anti-racketeering law and attempting to create a false statement, as part of the district attorney’s case accusing Trump and co-conspirators of interfering in the 2020 election. Clark has pleaded not guilty. As a Justice Department official after the 2020 election, Clark pressured superiors to investigate nonexistent election crimes and to encourage state officials to submit phony certificates to the electoral college, according to the indictment.
In one conversation described in the federal indictment, a deputy White House counsel warned Clark that Trump’s refusing to leave office would lead to “riots in every major city.” Clark responded, according to the indictment, “That’s why there’s an Insurrection Act.”
Clark had dinner with Trump during a visit to his Bedminster, N.J., golf club this summer. He also went to Mar-a-Lago on Wednesday for a screening of a new Dinesh D’Souza movie that uses falsehoods, misleading interviews and dramatizations to allege federal persecution of Jan. 6 rioters and Christians. Also attending were fringe allies such as Stephen K. Bannon, Roger Stone, Laura Loomer and Michael Flynn.
“I think that the supposedly independent DOJ is an illusion,” Clark said in an interview. Through a spokeswoman he did not respond to follow-up questions about his work on the Insurrection Act.
Clark’s involvement with Project 2025 has alarmed some other conservative lawyers who view him as an unqualified choice to take a senior leadership role at the department, according to a conservative lawyer who spoke on the condition of anonymity to describe private talks. Project 2025 comprises 75 groups in a collaboration organized by the Heritage Foundation.
Project 2025 director Paul Dans stood by Clark in a statement. “We are grateful for Jeff Clark’s willingness to share his insights from having worked at high levels in government during trying times,” he said.
After online publication of this story, Rob Bluey, a Heritage spokesman, said: “There are no plans within Project 2025 related to the Insurrection Act or targeting political enemies.”
How a second Trump term would differ from the first
There is a heated debate in conservative legal circles about how to interact with Trump as the likely nominee. Many in Trump’s circle have disparaged what they view as institutionalist Republican lawyers, particularly those associated with the Federalist Society. Some Trump advisers consider these individuals too soft and accommodating to make the kind of changes within agencies that they want to see happen in a second Trump administration.
Trump has told advisers that he is looking for lawyers who are loyal to him to serve in a second term — complaining about his White House Counsel’s Office unwillingness to go along with some of his ideas in his first term or help him in his bid to overturn his 2020 election defeat.
In repeated comments to advisers and lawyers around him, Trump has said his biggest regrets were naming Jeff Sessions and Barr as his attorneys general and listening to others — he often cites the “Federalist Society” — who wanted him to name lawyers with impressive pedigrees and Ivy League credentials to senior Justice Department positions. He has mentioned to several lawyers who have defended him on TV or attacked Biden that they would be a good candidate for attorney general, according to people familiar with his comments.
The overall vision that Trump, his campaign and outside allies are now discussing for a second term would differ from his first in terms of how quickly and forcefully officials would move to execute his orders. Alumni involved in the current planning generally fault a slow start, bureaucratic resistance and litigation for hindering the president’s agenda in his first term, and they are determined to avoid those hurdles, if given a second chance, by concentrating more power in the West Wing and selecting appointees who will carry out Trump’s demands.
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Trump speaks with staff members backstage following a campaign event at the Kingswood Arts Center on Oct. 9 in Wolfeboro, NH. (Jabin Botsford/The Washington Post)
Those groups are in discussions with Trump’s campaign advisers and occasionally the candidate himself, sometimes circulating policy papers or draft executive orders, according to people familiar with the situation.
“No one is opposed to them putting together ideas, but it’s not us,” a campaign adviser said. “These groups say they’ll have the whole transition planned. Some of those people I’m sure are good and Trump will appoint, but it’s not what is on his mind right now. I’m sure he’d be fine with some of their orders.”
Trump’s core group of West Wing advisers for a second term is widely expected to include Stephen Miller, the architect of Trump’s hard-line immigration policies including family separation, who has gone on to challenge Biden administration policies in court through a conservative organization called America First Legal. Miller did not respond to requests for comment.
Alumni have also saved lists of previous appointees who would not be welcome in a second Trump administration, as well as career officers they viewed as uncooperative and would seek to fire based on an executive order to weaken civil service protections.
For other appointments, Trump would be able to draw on lineups of personnel prepared by Project 2025. Dans, a former Office of Personnel Management chief of staff, likened the database to a “conservative LinkedIn,” allowing applicants to present their resumes on public profiles, while also providing a shared workspace for Heritage and partner organizations to vet the candidates and make recommendations.
“We don’t want careerists, we don’t want people here who are opportunists,” he said. “We want conservative warriors.”
Marianne LeVine and Karen DeYoung contributed to this report.
Donald Trump and his allies have begun mapping out specific plans for using the federal government to punish critics and opponents should he win a second term, with the former president naming individuals he wants to investigate or prosecute and his associates drafting plans to potentially invoke the Insurrection Act on his first day in office to allow him to deploy the military against civil demonstrations.
In private, Trump has told advisers and friends in recent months that he wants the Justice Department to investigate onetime officials and allies who have become critical of his time in office, including his former chief of staff, John F. Kelly, and former attorney general William P. Barr, as well as his ex-attorney Ty Cobb and former Joint Chiefs of Staff chairman Gen. Mark A. Milley, according to people who have talked to him, who, like others, spoke on the condition of anonymity to describe private conversations. Trump has also talked of prosecuting officials at the FBI and Justice Department, a person familiar with the matter said.
In public, Trump has vowed to appoint a special prosecutor to “go after” President Biden and his family. The former president has frequently made corruption accusations against them that are not supported by available evidence.
To facilitate Trump’s ability to direct Justice Department actions, his associates have been drafting plans to dispense with 50 years of policy and practice intended to shield criminal prosecutions from political considerations. Critics have called such ideas dangerous and unconstitutional.
“It would resemble a banana republic if people came into office and started going after their opponents willy-nilly,” said Saikrishna Prakash, a constitutional law professor at the University of Virginia who studies executive power. “It’s hardly something we should aspire to.
Much of the planning for a second term has been unofficially outsourced to a partnership of right-wing think tanks in Washington. Dubbed “Project 2025,” the group is developing a plan, to include draft executive orders, that would deploy the military domestically under the Insurrection Act, according to a person involved in those conversations and internal communications reviewed by The Washington Post. The law, last updated in 1871, authorizes the president to deploy the military for domestic law enforcement.
The proposal was identified in internal discussions as an immediate priority, the communications showed. In the final year of his presidency, some of Trump’s supporters urged him to invoke the Insurrection Act to put down unrest after the murder of George Floyd in the summer of 2020, but he never did it. Trump has publicly expressed regret about not deploying more federal force and said he would not hesitate to do so in the future.
Trump campaign spokesman Steven Cheung did not answer questions about specific actions under discussion. “President Trump is focused on crushing his opponents in the primary election and then going on to beat Crooked Joe Biden,” Cheung said. “President Trump has always stood for law and order, and protecting the Constitution.”
The discussions underway reflect Trump’s determination to harness the power of the presidency to exact revenge on those who have challenged or criticized him if he returns to the White House. The former president has frequently threatened to take punitive steps against his perceived enemies, arguing that doing so would be justified by the current prosecutions against him. Trump has claimed without evidence that the criminal charges he is facing — a total of 91 across four state and federal indictments — were made up to damage him politically.
“This is third-world-country stuff, ‘arrest your opponent,’” Trump said at a campaign stop in New Hampshire in October. “And that means I can do that, too.”
Special counsel Jack Smith, Attorney General Merrick Garland and Biden have all said that Smith’s prosecution decisions were made independently of the White House, in accordance with department rules on special counsels.
Trump, the clear polling leader in the GOP race, has made “retribution” a central theme of his campaign, seeking to intertwine his own legal defense with a call for payback against perceived slights and offenses to right-wing Americans. He repeatedly tells his supporters that he is being persecuted on their behalf and holds out a 2024 victory as a shared redemption at their enemies’ expense.
‘He is going to go after people that have turned on him’
It is unclear what alleged crimes or evidence Trump would claim to justify investigating his named targets.
Kelly said he would expect Trump to investigate him because since his term as chief of staff ended, he has publicly criticized Trump, including by alleging that he called dead service members “suckers.” Kelly added, “There is no question in my mind he is going to go after people that have turned on him.”
Barr, another Trump appointee turned critic, has contradicted the former president’s false claims about the 2020 election and called him “a very petty individual who will always put his interests ahead of the country’s.” Asked about Trump’s interest in prosecuting him, Barr deadpanned, “I’m quivering in my boots.”
“Trump himself is more likely to rot in jail than anyone on his alleged list,” said Cobb, who accused Trump of “stifling truth, making threats and bullying weaklings into doing his bidding.”
Milley did not comment.
Other modern presidents since the Watergate scandal — when Richard M. Nixon tried to suppress the FBI’s investigation into his campaign’s spying and sabotage against Democrats — have sought to separate politics from law enforcement. Presidents of both parties have imposed a White House policy restricting communications with prosecutors. An effort under the George W. Bush administration to remove U.S. attorneys for political reasons led to high-level resignations and a criminal investigation.
Rod J. Rosenstein, the Trump-appointed deputy attorney general who oversaw the investigation by special counsel Robert S. Mueller III into Russian interference in the 2016 election, said a politically ordered prosecution would violate the 14th Amendment’s guarantee of equal protection under law and could cause judges to dismiss the charges. That constitutional defense has rarely been raised in U.S. history, Rosenstein said.
“Making prosecutorial decisions in a nonpartisan manner is essential to democracy,” Rosenstein said. “The White House should not be meddling in individual cases for political reasons.”
But Trump allies such as Russ Vought, his former budget director who now leads the Center for Renewing America, are actively repudiating the modern tradition of a measure of independence for the Department of Justice, arguing that such independence is not based in law or the Constitution. Vought is in regular contact with Trump and would be expected to hold a major position in a second term.
“You don’t need a statutory change at all, you need a mind-set change,” Vought said in an interview. “You need an attorney general and a White House Counsel’s Office that don’t view themselves as trying to protect the department from the president.”
A fixation on prosecuting enemies
As president, Kelly said, Trump would often suggest prosecuting his political enemies, or at least having the FBI investigate them. Kelly said he would not pass along the requests to the Justice Department but would alert the White House Counsel’s Office. Usually, they would ignore the orders, he said, and wait for Trump to move on. In a second term, Trump’s aides could respond to such requests differently, he said.
“The lesson the former president learned from his first term is don’t put guys like me … in those jobs,” Kelly said. “The lesson he learned was to find sycophants.”
Although aides have worked on plans for some other agencies, Trump has taken a particular interest in the Justice Department. In conversations about a potential second term, Trump has made picking an attorney general his number one priority, according a Trump adviser.
“Given his recent trials and tribulations, one would think he’s going to pick up the plan for the Department of Justice before doing some light reading of a 500-page white paper on reforming the EPA,” said Matt Mowers, a former Trump White House adviser.
Jeffrey Clark, a fellow at Vought’s think tank, is leading the work on the Insurrection Act under Project 2025. The Post has reported that Clark is one of six unnamed co-conspirators whose actions are described in Trump’s indictment in the federal election interference case.
Clark was also charged in Fulton County, Georgia, with violating the state anti-racketeering law and attempting to create a false statement, as part of the district attorney’s case accusing Trump and co-conspirators of interfering in the 2020 election. Clark has pleaded not guilty. As a Justice Department official after the 2020 election, Clark pressured superiors to investigate nonexistent election crimes and to encourage state officials to submit phony certificates to the electoral college, according to the indictment.
In one conversation described in the federal indictment, a deputy White House counsel warned Clark that Trump’s refusing to leave office would lead to “riots in every major city.” Clark responded, according to the indictment, “That’s why there’s an Insurrection Act.”
Clark had dinner with Trump during a visit to his Bedminster, N.J., golf club this summer. He also went to Mar-a-Lago on Wednesday for a screening of a new Dinesh D’Souza movie that uses falsehoods, misleading interviews and dramatizations to allege federal persecution of Jan. 6 rioters and Christians. Also attending were fringe allies such as Stephen K. Bannon, Roger Stone, Laura Loomer and Michael Flynn.
“I think that the supposedly independent DOJ is an illusion,” Clark said in an interview. Through a spokeswoman he did not respond to follow-up questions about his work on the Insurrection Act.
Clark’s involvement with Project 2025 has alarmed some other conservative lawyers who view him as an unqualified choice to take a senior leadership role at the department, according to a conservative lawyer who spoke on the condition of anonymity to describe private talks. Project 2025 comprises 75 groups in a collaboration organized by the Heritage Foundation.
Project 2025 director Paul Dans stood by Clark in a statement. “We are grateful for Jeff Clark’s willingness to share his insights from having worked at high levels in government during trying times,” he said.
After online publication of this story, Rob Bluey, a Heritage spokesman, said: “There are no plans within Project 2025 related to the Insurrection Act or targeting political enemies.”
How a second Trump term would differ from the first
There is a heated debate in conservative legal circles about how to interact with Trump as the likely nominee. Many in Trump’s circle have disparaged what they view as institutionalist Republican lawyers, particularly those associated with the Federalist Society. Some Trump advisers consider these individuals too soft and accommodating to make the kind of changes within agencies that they want to see happen in a second Trump administration.
Trump has told advisers that he is looking for lawyers who are loyal to him to serve in a second term — complaining about his White House Counsel’s Office unwillingness to go along with some of his ideas in his first term or help him in his bid to overturn his 2020 election defeat.
In repeated comments to advisers and lawyers around him, Trump has said his biggest regrets were naming Jeff Sessions and Barr as his attorneys general and listening to others — he often cites the “Federalist Society” — who wanted him to name lawyers with impressive pedigrees and Ivy League credentials to senior Justice Department positions. He has mentioned to several lawyers who have defended him on TV or attacked Biden that they would be a good candidate for attorney general, according to people familiar with his comments.
The overall vision that Trump, his campaign and outside allies are now discussing for a second term would differ from his first in terms of how quickly and forcefully officials would move to execute his orders. Alumni involved in the current planning generally fault a slow start, bureaucratic resistance and litigation for hindering the president’s agenda in his first term, and they are determined to avoid those hurdles, if given a second chance, by concentrating more power in the West Wing and selecting appointees who will carry out Trump’s demands.
Those groups are in discussions with Trump’s campaign advisers and occasionally the candidate himself, sometimes circulating policy papers or draft executive orders, according to people familiar with the situation.
“No one is opposed to them putting together ideas, but it’s not us,” a campaign adviser said. “These groups say they’ll have the whole transition planned. Some of those people I’m sure are good and Trump will appoint, but it’s not what is on his mind right now. I’m sure he’d be fine with some of their orders.”
Trump’s core group of West Wing advisers for a second term is widely expected to include Stephen Miller, the architect of Trump’s hard-line immigration policies including family separation, who has gone on to challenge Biden administration policies in court through a conservative organization called America First Legal. Miller did not respond to requests for comment.
Alumni have also saved lists of previous appointees who would not be welcome in a second Trump administration, as well as career officers they viewed as uncooperative and would seek to fire based on an executive order to weaken civil service protections.
For other appointments, Trump would be able to draw on lineups of personnel prepared by Project 2025. Dans, a former Office of Personnel Management chief of staff, likened the database to a “conservative LinkedIn,” allowing applicants to present their resumes on public profiles, while also providing a shared workspace for Heritage and partner organizations to vet the candidates and make recommendations.
“We don’t want careerists, we don’t want people here who are opportunists,” he said. “We want conservative warriors.”
Marianne LeVine and Karen DeYoung contributed to this report.
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