6 potential reforms to protect against government weaponization
Over the past several decades, under Congresses and presidential administrations led by both Democrats and Republicans, the shortcomings of our constitutional and statutory framework have become evident. As national politics become increasingly polarized and antagonistic, political norms have been eviscerated and the existing legal safeguards against federal overreach have proven insufficient to support a healthy, well-functioning democracy. In recent years, the executive branch has used its vast power to target the president’s perceived political enemies and benefit multiple presidents’ allies and family, all while presidents themselves are seemingly immune from any form of legal accountability.
One of the most glaring crises we face today is the weaponization of government power and resources to target, intimidate, punish or reward particular people, institutions or corporations based on their political views or affiliations, rather than for legitimate law enforcement and national security purposes. This includes investigating six members of Congress for participating in a video advising military members that they are not required to follow unlawful orders, and indicting the Southern Poverty Law Center, a vocal critic of groups supported by the Trump administration, for long standing policies on paying informants—the very same policies the FBI and other federal law enforcement agencies use. This weaponization strikes at the heart of American democracy, is antithetical to the Constitution’s promises of equal justice under law and poses an existential danger to all Americans.
Today’s weaponization crisis cannot be solved simply by returning to business as usual. To properly address weaponization, we need to think boldly. We need to reimagine our democracy and consider new reforms that make it both less likely that the government can be weaponized in the first place and more likely that government weaponization does not succeed even when it is tried.
That work has to be done together: experts, practitioners, community members and other stakeholders, from across the ideological spectrum but with a shared commitment to democratic values, must work hand-in-hand to generate and build consensus around new ideas that will make our democracy more effective, representative and resilient. That’s why CREW is working with cross-ideological partners to hold a series of convenings dedicated specifically to long-term structural democracy reform. Below are 6 reforms identified at the first convening which CREW is studying and that political leaders, civil society groups and the general public should begin to consider.
Lower the barrier to raising selective prosecution as a defense
It is unconstitutional for prosecutors to use their power to selectively prosecute their perceived political enemies. That hasn’t stopped this administration from using the Department of Justice as a personal attack squad to investigate its adversaries. The Supreme Court established in Yick Wo v. Hopkins that for a defendant to successfully fight such an attack, they must show that “similarly situated” persons have not been prosecuted. Furthermore, following the 1996 decision in United States v. Armstrong, defendants cannot receive discovery on the issue without making a “credible showing” of improper conduct, creating a catch-22 where defendants have to show evidence in order to have access to evidence. Court decisions since then have demonstrated that it is almost impossible for defendants to meet that legal standard—in fact, prior to 2021, the last successful selective prosecution claim brought was Yick Wo itself in 1886.
As a result, a weaponized DOJ can pursue apparently unconstitutional selective prosecutions against its perceived political opponents, while the defendants have few tools available to protect themselves. Even the very small minority of individuals who may be able to successfully argue that they have been selectively prosecuted, such as Kilmar Abrego Garcia (who was able to cite to public statements by government officials to access further discovery), must spend untold amounts of time and money to do so, and have their lives turned upside down while fighting against the immense power of the federal government. Congress could reinvigorate the selective prosecution defense by passing a law establishing reasonable standards for courts to use in identifying selective prosecution, providing defendants with meaningful access to discovery and creating expedited timelines for review of these claims, allowing targets of weaponization to successfully challenge these attacks and stop irrevocable damage before it occurs.
Eliminate or reform qualified immunity
The judicially created doctrine of qualified immunity protects government officials from monetary liability for actions—even egregious ones—taken while performing their jobs. Although in theory the Supreme Court’s case law has a test to determine when qualified immunity attaches and when it doesn’t, the standard has become ridiculously protective of officials. For an individual to be held responsible, they have to have violated a “clearly established” right, meaning that a prior court case had already deemed the actions to be illegal. In other words, a court can rule in a government official’s favor by determining either that the official did not violate a right, or that the right was not clearly established.
In practice, the application of this standard results in no accountability. An officer who entered the wrong house while looking for a fugitive, forced children to lie at gunpoint and tried to shoot a dog but missed and hit a 10 year old instead was granted qualified immunity because there was no prior case where “a temporarily seized person … suffer[ed] … when an officer shoots at a dog … and accidentally hits the person.” An officer who heard gunshots and fired into a crowd of hundreds of people, shooting bystanders and killing an unarmed man, was granted qualified immunity because there was no prior case establishing that police officers could not “open fire on a fleeing person they (perhaps unreasonably) believed was armed in what they believed to be an active shooter situation.” And because courts can skip to the second question—whether there is another case that clearly established the right—there may never be a case that establishes the illegality of the government conduct.
Today, in practice, individuals who have been harmed by the actions of federal officials are on the whole unable to hold these officials accountable. As a result, the doctrine fails to deter even the most outrageous government misconduct. Congress can address this by making significant changes to or eliminating qualified immunity. By establishing a new standard that allows courts to hold government actors accountable for conduct that is clearly unreasonable or egregious, Congress would ensure that at least intentional and obvious constitutional violations are not protected—such as an officer stealing hundreds of thousands of dollars from a person while executing a search warrant. A more complete revocation of the doctrine of qualified immunity would turn the attention to the real issue—whether government officials violated an individual’s constitutional rights—and send the message that your rights do matter and that the government actors cannot engage in misconduct with impunity.
Make Offices of the Inspector General actually independent from the president
In the wake of the Watergate scandal more than half a century ago, Congress created Offices of the Inspector General (OIGs) across the federal government to investigate waste, fraud and abuse. Congress elected to create a mixed appointment structure, with some IGs appointed by the president and some appointed by agency heads, both of which are mechanisms that potentially undermine their independence. Indeed, the Trump administration has taken advantage of the current structure to hamstring the ability of inspectors general (IGs) to do their jobs, including removing at least 21 IGs during his second term, more than all other presidents combined. Several of the new IGs the administration has appointed previously worked for the Trump administration, presenting possible conflicts of interest. Particularly in the wake of the Supreme Court’s calamitous decision in Trump v. Slaughter, which gave the president seemingly unlimited removal power for executive branch officials, structural reforms are needed to prevent the politicization and secure the independence of OIGs. These reforms could include moving OIGs from the executive to the legislative branch, or into a new, politically-neutral institution that is dedicated to government oversight and exists outside the three branches of government. Removing OIGs from presidential control would help protect against conflict-ridden appointments, politicized removals and other pressures from the White House.
Independent appointments of U.S. attorneys
U.S. attorneys serve as the federal government’s chief law enforcement officer in their jurisdiction. The manner by which they take office—appointed by the president and confirmed by the Senate—is political. In fact, the Trump administration has heightened their political nature by appointing Trump’s personal attorneys in an acting capacity to these coveted positions and removing or requesting the resignation of U.S. attorneys who refused to prosecute the president’s perceived political enemies. But do they have to be appointed this way? Not necessarily. District courts are already empowered to appoint interim U.S. attorneys to fill vacancies under some circumstances. Exploring other appointment structures for U.S. attorneys, such as vesting appointment authority fully in district courts or in an independent commission, could help insulate them from political pressures and ensure that only qualified, impartial individuals are empowered to wield the vast prosecutorial powers of the United States.
Reform the grand jury
Even if someone is eventually acquitted, a mere indictment can ruin them financially or politically—and catapult them into a legal limbo that can last years. Indictments should be harder, requiring true consideration by independent juries. When a prosecutor goes to a grand jury to ask for an indictment, there is a complete power imbalance. Not only does the prosecution not have to provide the grand jury with any exculpatory evidence (evidence that supports the defense), but the defense isn’t even in the room. The DOJ has repeatedly taken advantage of this permissive system to secure high-profile indictments of current and former appointed and elected officials that it sees as political enemies. Although a small number of grand juries have refused to support these political attacks, these “no bills” are a small number when considering that federal grand juries indicted almost 50,000 individuals in 2024. The institution is not built to protect the rights of the accused. Grand juries can be reformed. Reforms such as providing grand jurors with their own independent legal advisor, requiring prosecutors to share exculpatory evidence with the defense and creating a system to impanel “prosecutor juries” to evaluate possible political prosecutions could help prevent bad actors from weaponizing prosecutions and limit unfounded prosecutions.
Allow third parties to initiate investigations
Decisions to decline to investigate or prosecute political allies, as well as the ability of the wealthy and well-connected to buy clemency despite clear evidence of misconduct, are also a type of weaponization. This is not theoretical. During this term, the Trump administration closed down a wide-ranging criminal investigation into alleged environmental law violations by companies owned by Sen. Jim Justice, a close ally of President Trump; shuttered an investigation into White House Border Czar Tom Homan, who allegedly accepted a $50,000 bribe in a sting operation; and granted clemency to Paul Walczak, a former nursing home executive who withheld millions in taxes from employees and the IRS, after his mother attended a $1 million-per-attendee fundraising dinner for President Trump. Powerful people should not be able to avoid accountability for their wrongdoing simply because of their loyalty—or payments—to the president. To avoid cases like these, where the executive branch fails to investigate or prosecute misconduct, countries like France and India have created mechanisms for impacted third parties to initiate investigations.
To create a similar mechanism in the United States, several issues would need to be addressed. Limits would need to be put in place to prevent third parties from abusing this mechanism and contributing to, rather than reducing, weaponization. Those might include limiting which parties have standing to initiate investigations, as France does, or establishing minimum factual predicates to use this mechanism. Additionally, it might be necessary to provide funding for third parties using this mechanism to ensure they have the resources necessary to pursue an investigation. And finally, such a mechanism would have to be tailored to comply with Article III of the Constitution, which establishes which cases courts are able to hear. Addressing these questions and creating a workable third-party investigation mechanism would help limit an administration’s ability to shield its allies from accountability for misconduct.
In order for the US to remake our republic into a healthy, functioning democracy, the government must work for everyone, not just the few, and its power cannot be used against its people. In plotting a path forward, we need to be open minded and creative. These are just a few of the ideas in the ether, and we must take the time to examine them and other reforms being proposed with clarity and purpose. All of us together can create that promised democracy.