President Trump has spent years calling for the Department of Justice and FBI to go after his political enemies, with investigations and even criminal charges. As his second term begins, DOJ and FBI staff may face significant pressure from the White House and the attorney general or FBI director to participate in political investigations or drop valid cases. Such actions may violate the Constitution and statutes like the Hatch Act and the Civil Service Reform Act, while also contravening longstanding (post-Watergate) DOJ policy protecting its independence. Below, we outline the laws that may be implicated, duties and options for reporting misconduct or unlawful orders, and then provide additional resources that may be useful. 

Political prosecution occurs when DOJ or FBI staff participate in an investigation or prosecute a person or matter for political purposes. There are significant guardrails against unjust or selective prosecution, and the Supreme Court has repeatedly held that federal investigations and prosecutions must be impartially executed and the First, Fourth, Fifth, and Fourteenth Amendments prohibit targeting individuals based on animus or bias or due to their individual characteristics or views, including political views. DOJ employees should refuse to undertake any type of investigation or prosecution that would violate applicable law designed to prevent politicization of federal law enforcement. 

Article VI of the Constitution mandates that “all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution.” The oath itself is codified in 5 U.S.C. § 3331, and it requires each official to swear to “support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same;… and that I will well and faithfully discharge the duties of the office[.]” Under the terms of this oath, unconstitutional actions are illegal, and further, actions that undermine the duties of the office and insider threats to national security are also prohibited. Some of the laws that DOJ and FBI officials might potentially violate during a political prosecution or investigation include the Hatch Act, which prohibits certain political activities as well as politicized coercion of government employees, and the Foreign Intelligence Surveillance Act and related statutes, which prohibit warrantless surveillance of U.S. citizens and legal permanent residents. DOJ officials should not only refrain from these actions—they must also refuse to follow unconstitutional and illegal orders or assignments and faithfully execute their duties. 5 U.S.C. § 2302(b)(9)(D) provides the right to refuse unlawful orders, and subsection (b)(3) prohibits retaliation for doing so—however, the Merit Systems Protection Board ruled in one case that this protection only applies if the order would have violated a federal statute and did not apply to guidance or regulations, which are subject to change. It is therefore best to seek ethics advice and base refusals to follow unlawful orders on constitutional or statutory grounds.

DOJ employees should not only refuse to implement unlawful orders, they also have a duty to report misconduct, and whistleblower protections may be available. Federal law prohibits coercing political activity, or taking any action, “as a reprisal for the refusal… to engage in such political activity[;]” and “cooperating with or disclosing information to the Inspector General (or any other component responsible for internal investigation or review) of an agency, or the Special Counsel, in accordance with applicable provisions of law,” may not be grounds for personnel actions. DOJ employees must also comply with federal ethics law, including criminal law prohibitions of misconduct, fraud, disclosures of confidential information, financial incentives and conflicts of interest, with additional standards for attorneys based on their bar rules of professional contact, and government-wide standards against discrimination, harassment and retaliation that may support career staff. Attorneys, investigators and agents who have received security clearances must comply with those standards and may not violate such standards of honesty, trustworthiness and loyalty to the United States, even if ordered to undertake questionable actions. This essential body of law is codified in longstanding internal DOJ and FBI guidance issued through the Justice Manual and the FBI Domestic Investigations and Operations Guide, and these manuals provide an important preliminary source to consult. In any case, ethics officers are charged with providing advice on these types of matters and federal employees must seek it out when potential conflicts arise, and they may also seek ethics advice to get clarity. Generally speaking, it can be helpful to have communications in writing.

In addition to the above, here are several potentially helpful resources: 

This text is intended as a general summary of relevant resources, and it is not intended to offer legal advice.

Read More in Reports