Justice in the Shadow of Power – Alan N. Walter, Counsel

When prosecutorial authority is wielded as a political tool rather than an impartial mechanism of law enforcement, the foundations of democratic governance begin to crack. Politicized prosecution threatens impartial justice and erodes public trust in legal institutions. I draw on historical and contemporary examples, and show how selective or retaliatory prosecutions corrupt perceptions of fairness and undermine the rule of law. Legal institutions depend not only on formal structures, but on adherence to professional norms, institutional independence, and the courage of those entrusted with enforcing the law.

This article was originally published in the April 2026 issue of New Jersey Lawyer, a publication of the New Jersey State Bar Association, and is reprinted with its permission.

Justice must operate in daylight, not in the shadow of political retribution. When the Department of Justice becomes an instrument for targeting political adversaries rather than enforcing the law impartially, the foundations of democratic governance begin to crack. This article examines what happens when prosecutorial power is wielded as a weapon and what safeguards might prevent such abuse.

For half a century, American constitutional governance has rested on an unwritten but essential proposition. The White House and the Department of Justice must remain institutionally distinct. Department policies instruct that case-specific contacts with the White House be “limited and appropriate” and routed through senior officials, not through direct presidential pressure on line attorneys. This architecture reflects a hard-won insight: prosecutorial power, once captured by partisan interests, corrodes everything it touches.

The warning signs of politicized prosecution are recognizable across eras and administrations. For example, Presidents publicly demanding prosecution of named critics, career prosecutors forced out when they resist particular charges and replaced by loyalists lacking federal prosecutorial experience, and targets who share one common trait: they investigated, sued or loudly criticized the president. When enforcement priorities resemble a catalog of adversaries, what emerges is not law enforcement but political hygiene dressed in the robes of justice.

The Chilling Effect

Political prosecutions strike at the foundations of democratic legitimacy, impartiality, fairness and equal treatment under law. When adversaries of the president are singled out for investigation, confidence in neutral enforcement shatters. High-profile defendants face staggering legal fees, reputational destruction and career-ending publicity long before any jury is empaneled. The process itself becomes the punishment.

A chilling effect need not be announced to be effective; it operates through demonstration. The critic who might have spoken falls silent. The investigator who might have dug deeper closes the file. The donor who might have contributed thinks better of it. Political contributions are protected speech. When major donors are investigated based on their giving patterns, the unspoken lesson—”This could happen to you”—requires no explicit articulation to achieve its purpose.

The ripple effects extend far beyond direct targets. Law firms grow cautious about representing disfavored clients, calculating that visibility in a politically charged case may invite scrutiny of the firm itself or its other clients. Media organizations hedge their coverage, lawyers in newsrooms advising against stories that might provoke official retaliation. Civil servants across agencies learn to keep their heads down, recognizing that diligent enforcement against the wrong party can end a career. The chilling effect is not a single frost but a climate change, altering the entire ecosystem of accountability.

Comparative Warnings

In How to Lose a Constitutional Democracy, Aziz Huq and Tom Ginsburg catalogue a pattern so familiar it approaches formula. Democracies rarely collapse in a single dramatic moment. More often, elected leaders consolidate power incrementally: constraining courts, disabling watchdog institutions and selectively wielding law enforcement against opponents. Hungary, Turkey and Venezuela share this commonality: the reorientation of prosecutors from neutral law enforcers into instruments of political control.

The United States possesses stronger institutional defenses: An independent judiciary with life tenure; decentralized federalism; a robust civil society; a press protected by the First Amendment. But these safeguards are not self-executing. They depend on a shared professional culture that treats certain lines as bright. Constitutional architecture provides the structure; norms provide the mortar. Once an administration learns it can survive crossing those lines, the constraint they provided is gone. The line is not a wall; it is a consensus. Broken once, it may not hold again.

When the Guardrails Bend

Judicial review provides a critical check on prosecutorial overreach. When courts enforce appointment law and vacate cases brought by unlawfully appointed prosecutors, the system demonstrates its capacity for self-correction. A judge who holds that accepting the government’s theory would allow the executive to send “any private citizen off the street” into a grand jury room so long as the Attorney General blessed the result afterward correctly concludes that “cannot be the law.”

Yet judicial review operates only after considerable damage has been done. By the time a court dismisses an indictment, defendants have endured months of proceedings, millions in legal fees and severe reputational harm that no judicial ruling can repair. Dismissal is remedial, not restorative. It is not a time machine.

Grand juries, too, can serve as a check, though historically a weak one. Former Chief Judge Sol Wachtler famously observed that prosecutors could persuade a grand jury to “indict a ham sandwich.” When grand juries repeatedly reject charges that appear politically motivated, even this traditionally compliant body is delivering an unmistakable verdict. Such refusals are not merely procedural outcomes; they are acts of institutional conscience.

The defense bar constitutes another institutional safeguard, not always acknowledged. When skilled attorneys mount vigorous defenses of politically targeted defendants, they impose costs on abusive prosecutions: exposing evidentiary weaknesses, challenging procedural irregularities and creating public records of governmental overreach. Defense counsel willing to take such cases, knowing they may themselves attract official disfavor, perform a vital democratic function. Their willingness to stand between the individual and the state, even when the state is most determined, tests whether the adversarial system retains meaning. A healthy legal profession treats representation of the unpopular not as a liability but as a duty. The principle is foundational. The ABA Model Rules provide that representation “does not constitute an endorsement of the client’s political, economic, social or moral views or activities.” When John Adams defended British soldiers after the Boston Massacre, he did not betray his country; he defined what loyalty to the rule of law actually requires. A lawyer’s role is not to ratify popular sentiment but to stand between the individual and the state, ensuring that power answers to law regardless of political pressure. Adams later called it “one of the best Pieces of Service I ever rendered my Country.”

Lessons from History

Troubling precedents in American history reveal how politicized enforcement erodes democratic norms.

The Early Republic

The Sedition Act of 1798 represents the nation’s first experiment with using federal prosecutorial power against political opponents. The Act made it a crime to publish “false, scandalous and malicious writing” against the government or the president; notably, it did not protect Vice President Thomas Jefferson, who led the opposition. Federal prosecutors indicted at least 26 individuals, all opponents of the Adams administration. Jefferson described the prosecutions as “the reign of witches.” The widespread outrage helped sweep the Federalists from power in 1800; they would never again win a national election. The lesson is instructive. Politicized prosecution may produce short-term victories but often generates lasting backlash that damages the perpetrators more than their targets.

The 20th Century

The Palmer Raids of 1919 to 1920 remain among the darkest chapters in federal law enforcement history. Following bombings attributed to anarchists, Attorney General A. Mitchell Palmer orchestrated mass arrests of suspected radicals. On a single January 1920 night, federal agents arrested over 4,000 people in dozens of cities, many held without charges and denied lawyers; targets selected based on political beliefs rather than evidence.

wiretapping, planting false evidence and engineering arrests “on any excuse” until targets “could no longer make bail.” Martin Luther King Jr. was subjected to intense surveillance; the FBI sent him an anonymous letter encouraging suicide. The Church Committee concluded that “too many people have been spied upon by too many Government agencies” based on “their political beliefs, even when those beliefs posed no threat of violence or illegal acts.”

Richard Nixon’s “enemies list” identified journalists, activists and politicians for investigation and harassment. The resulting abuse formed part of Article II of the impeachment articles. The post-Watergate reforms that followed, including ethics laws, inspector general statutes and revised Department of Justice guidelines, reflected a bipartisan consensus. Once the prosecutorial apparatus becomes an extension of presidential will, the rule of law collapses into the rule of power.

The 21st Century

Modern controversies across administrations confirm that concerns about prosecutorial overreach transcend party lines.The 2008 prosecution of Sen. Ted Stevens provides a bipartisan cautionary tale. Stevens was convicted on corruption charges days before his re-election, likely costing him his Senate seat. Months later, revelations of extensive Brady violations led the Department of Justice to seek dismissal. The Stevens case reminds us that prosecution decisions can alter electoral outcomes and that justice system integrity depends on whether officials should bring a charge, not just whether they can.

In 2012, revelations emerged that the Obama-era Department of Justice had secretly subpoenaed phone records and emails of Associated Press reporters and labeled Fox News journalist James Rosen a criminal “co-conspirator” for receiving leaked information. Such actions demonstrate how prosecutorial overreach can chill press freedom regardless of which party holds power.

The Biden administration was not immune from similar activities. Oversight reviews revealed significant compliance problems with the FBI’s use of Section 702 surveillance authorities. Separately, the 2021 FBI search of Project Veritas founder James O’Keefe’s home, part of an investigation involving a diary belonging to President Biden’s daughter, drew sharp criticism from press-freedom organizations, which warned that investigative actions targeting journalists threatened First Amendment values..

Following President Trump’s return to office in January 2025, the Department of Justice brought charges against several prominent Trump critics, including former FBI Director James Comey, former National Security Advisor John Bolton, and New York Attorney General Letitia James. A federal judge dismissed both the Comey and James indictments in November 2025, ruling that the prosecutor who obtained them had been unlawfully appointed.prosecutors twice attempted to reindict James in December 2025, grand juries in both Norfolk and Alexandria refused to approve the charges.

These episodes share common threads: Using federal prosecutorial power to punish political opposition; willingness to bend or break rules in pursuit of convictions; and long-term damage to democratic institutions that reverberates for generations. Once the precedent is set that prosecution can be wielded as a political tool, future administrations inherit both the capacity and the temptation.

Drawing the Line

How should we distinguish legitimate prosecution from political weaponization? Several factors are telling: Presidential demands for named prosecutions of critics; forcing out career prosecutors and replacing them with inexperienced loyalists; patterns of targets resembling a catalog of adversaries rather than a coherent enforcement philosophy; and timing aligned with political calendars rather than investigative progress. Selectivity—who gets charged, when and at whose urging—can itself constitute abuse even when underlying conduct might otherwise warrant scrutiny. The presence of any single factor may be explicable. The presence of multiple factors, repeated across cases, suggests something other than law enforcement is at work.

Conclusion

Democratic institutions are not without resources when leaders overreach. Courts, legislatures, proecutors, inspectors general, a free press and an engaged citizenry all serve as counterweights to the concentration of power. But structural safeguards alone are insufficient. What they require to function is institutional courage, the willingness of individual officials to prioritize long-term integrity over short-term political advantage, even when the personal cost is high.

Career prosecutors must be willing to decline cases that lack merit or appear retaliatory, understanding that refusal may carry professional consequences. The Department of Justice is not merely a chain of command; it is a repository of professional norms that constrain what any superior—of any administration—can legitimately demand. Federal judges must scrutinize not only the sufficiency of the evidence but also the integrity of the charging decision; courts that treat potentially pretextual prosecutions as routine risk hollowing out the judiciary’s role as a check on executive power. Congress must conduct rigorous oversight even when doing so is uncomfortable for the party in power. Bar authorities bear responsibility for disciplining lawyers who participate in prosecutions they know to be abusive. And the press must continue to distinguish neutral law enforcement from political weaponization, a task that grows harder as official justifications grow more sophisticated, regardless of which party controls the machinery of justice.

Structural reforms can help. Fixed terms for Attorneys General would reduce temptation to use the office for short-term political gain; statutory codification of contact policy norms would move guidelines from internal policy to enforceable law; and strengthened whistleblower protections for career Department of Justice lawyers would create safer pathways for those who witness misconduct.

When prosecutorial power becomes an accepted instrument of political advantage, the damage to democratic institutions may prove profound and enduring. History teaches that democracies rarely fail through dramatic overthrow; they erode through the accumulated normalization of conduct once considered impermissible. Prosecutorial independence is particularly vulnerable to this dynamic because it is the very mechanism by which other abuses are checked. When prosecutors operate as political agents rather than independent officers of the law, they forfeit the credibility necessary to investigate executive misconduct. When courts are asked to validate pretextual charges, they risk becoming implicated in the abuses they exist to prevent.Whether these patterns are recognized and corrected or become embedded as the new normal will shape the character of American democracy for generations to come. The work of preservation is quieter than the work of destruction, but no less essential. Justice must operate in daylight, not in the shadow of power.