Former President Barack Obama’s use of executive power and pursuit of policy changes without the constraints of Congress helped set the table for what Democrats now describe as the “authoritarian” ethos of the second Trump administration. From using the Justice Department to achieve partisan goals to advancing his immigration agenda via executive actions, Obama set precedents for expanding the executive authority Trump is now relying upon to test the limits of Article II. Part one of this Washington Examiner series, “The House that Obama Built,” will examine the precedents set by Obama’s DOJ.
Democrats say President Donald Trump is weaponizing the Justice Department, but Republicans counter that his administration is rebalancing a system Democrats themselves tilted during the Obama administration.
Experts who have studied that era argue that the DOJ’s political turn began long before Trump returned to office for a second term. Hans von Spakovsky, a former DOJ attorney and senior fellow at the Heritage Foundation, said the politicization started when Eric Holder became attorney general in 2009 and altered the definition of what was considered acceptable protocol under the DOJ, from that point onward.
“The moment Eric Holder came in, I mean, literally,” von Spakovsky, who wrote a book about Holder’s grip on Obama’s DOJ, told the Washington Examiner. “He politicized the Justice Department. There are lots and lots of examples.”
A major incident that marked a turn in the department away from standard norms and operations, von Spakovsky said, was Operation Fast and Furious, the botched gun-tracking scheme in which the Bureau of Alcohol, Tobacco, Firearms, and Explosives allowed weapons to be purchased in the United States and smuggled into Mexico without proper surveillance.
“That was setting up a reckless law enforcement operation for political reasons, and Eric Holder was in the middle of that,” he said.
Democrats raise alarms following years of investigations into Trump
During a Senate Judiciary Committee hearing last month, Democrats accused Trump’s attorney general, Pam Bondi, of bulldozing legal guardrails and doing the president’s bidding. Sen. Richard Blumenthal (D-CT) said Trump “embodied” the weaponization of justice. Sen. Chris Coons (D-DE) said he was “gravely concerned” that Bondi would target Trump’s political “opponents or enemies.”
Republicans, however, have pointed to recent FBI disclosures by Director Kash Patel and other whistleblower accounts revealing that during the Biden administration, while Merrick Garland served as attorney general, the DOJ obtained sealed court orders to collect phone records from multiple Republican lawmakers. The subpoenas, issued in 2023 as part of an investigation known internally as Arctic Frost, covered the period from Jan. 4 to 7, 2021. Those subpoenas remained under wraps until recently.
Several targeted lawmakers, including Sens. Josh Hawley (R-MO) and Marsha Blackburn (R-TN), sat in the hearing room as Democrats denied political targeting.
“I could have sworn that yesterday we learned that the FBI tapped my phone,” Hawley said. He also cited an FBI memo mapping possible Catholic parish informants, the 2021 directive involving counterterrorism resources at school board meetings, and the prosecution of anti-abortion activist Mark Houck before a jury acquitted him.
The investigation that defined Trump’s presidency
The modern fight traces back to 2016. On July 31 of that year, the FBI launched the Crossfire Hurricane investigation into alleged Trump campaign ties to Russia. Former DOJ Inspector General Michael Horowitz released a report on Dec. 9, 2019, which identified at least 17 significant errors in the surveillance applications targeting former Trump adviser Carter Page.
That investigation shaped Trump’s time in office and set bad precedents, Republicans say, which have reverberated into more recent scandals, such as when Garland appointed special counsel Jack Smith to pursue two federal cases against Trump in 2023, while he was leading the 2024 polls. Democratic elected prosecutors in New York and Georgia pursued related charges.
John Shu, a constitutional law expert who served in both Bush administrations, told the Washington Examiner that the precedent for pursuing such tactics long predates Trump’s second presidency.
“The first administration to ever indict a sitting president was the Biden administration,” he said. “They stretched, twisted, and bent the plain meaning of laws to go after their political opponents, President Trump and Republicans. We’ve never had anything like that, not even Nixon.”
Despite efforts to jail the former president, voters returned Trump to office one year ago by even wider margins than his first-term victory.
Notably, in the months prior to his reelection, the Supreme Court narrowed key legal theories used in prosecutions against both Trump and defendants from the Jan. 6, 2021, riot at the U.S. Capitol, a sign that even the justices saw overreach by Garland’s DOJ.
In a June 28 decision last year in Fischer v. United States, the justices voted to restrict the use of a Sarbanes-Oxley era obstruction statute that the Biden DOJ applied to dozens of Jan. 6 defendants, and likewise issued a major ruling on presidential immunity during the same term, which clarified that presidents are largely immune from prosecution over official acts undertaken during their presidencies.
“They went way overboard,” von Spakovsky said of the Jan. 6 prosecutions that triggered Supreme Court reversals. “It shows how dangerous the Justice Department can be when people are willing to abuse their powers.”
Obama-era enforcement: An inflection point for DOJ power abuse
Holder, who described himself in 2013 as President Barack Obama’s “wingman,” also oversaw sweeping interpretations of federal authority that drew repeated unanimous rebukes from the Supreme Court.
Two unanimous high court decisions from 2012 encapsulate the Obama-era overreach of statutory interpretation. In Hosanna-Tabor v. EEOC, a majority rejected the DOJ’s efforts to intervene in religious staffing decisions. Two months later, in Sackett v. EPA, the justices upheld a landowner’s right to challenge Environmental Protection Agency compliance orders. However, the case was not completely resolved until it returned to the justices’ docket in 2022.
Holder’s prosecutorial discretion also raised objections. Judges dismissed several FACE Act cases targeting anti-abortion activists due to a lack of evidence.
“That was based on political ideology,” von Spakovsky said of Holder’s pursuit of those failed FACE Act prosecutions. He cited a 2012 Florida case against anti-abortion sidewalk counselor David Hamilton, in which U.S. District Judge Jennifer Coffman declined to grant summary judgment in his case.
Holder’s aggressive approach extended to regulation. Between 2009 and 2012, more than 60 “sue-and-settle” agreements resulted in over 100 environmental rules, which bypassed standard public comment processes and congressional oversight, according to a 2014 investigation by the Heritage Foundation’s former visiting fellow, Andrew Grossman. “Sue-and-settle” is a legal tactic through which the government can effectively achieve its policy goals by declining to fight a lawsuit filed by a special interest group and instead settling with the group through a court-approved agreement that carries the weight of legal precedent. The tactic, which Trump’s first-term EPA head, Scott Pruitt, sought to end during his tenure, allows policy to be set without the scrutiny of the typical rule-making process.
Career officials also alleged ideological hiring within key divisions, including civil rights, cementing a shift that critics say still influences decision-making today.
Federal power abuse beyond DOJ fueled political distrust early on
Concerns that the government was targeting political adversaries intensified after the IRS admitted in 2013 that conservative nonprofit groups seeking tax-exempt status had faced heightened and politically selective scrutiny since 2010.
Obama initially called the behavior “outrageous” and promised accountability, saying there was “no place for it” in government. But the promised consequences never came.
Obama’s handpicked IRS commissioner, John Koskinen, resisted congressional oversight, and Lois Lerner, the official who oversaw the unit involved, retired with a full pension, facing neither charges nor internal discipline.
“That’s weaponizing the government, both in terms of harming conservative groups and protecting Lerner from any consequences for her misdeeds,” Shu said, noting the Lerner scandal was a classic example of using the government’s power against political opponents.
Warnings of ‘weaponization’ now come from those who advanced the expansion
Former FBI Director James Comey, who oversaw Crossfire Hurricane, said in a June 9, 2024, interview that “four years of a retribution presidency” would endanger American governance. New York Attorney General Letitia James said Feb. 16, 2024, that Trump “believes the rule of law does not apply to him.” Former national security adviser John Bolton warned on June 18, 2023, that Trump would use governmental authority “for his personal advantage.”
The White House pushed back against that characterization and argued the administration only aims to fix the years of politically motivated enforcement that occurred under Democrats and their holdovers.
“The entire Trump Administration is working together to fulfill President Trump’s promises and implement his Executive Orders to end the Biden weaponization of the American government,” White House spokeswoman Abigail Jackson told the Washington Examiner. “Under Joe Biden, the federal government was weaponized to target everyone from parents at school board meetings to political opponents. The Trump Administration will ensure this never happens again and that those who weaponized the government against Americans are held accountable.”
Republicans say Democrats set the norms they now fear, pointing to what they argue were years of aggressive and politically selective uses of federal power under Obama and Biden. Shu noted that Democrats “weaponized the entire intelligence community to falsely portray Trump as a Russian stooge,” citing Comey’s handling of the 2016 investigation. But he argued that the current indictments of Comey, James, and Bolton differ because prosecutors “aren’t twisting statutes” or inventing new crimes. “It certainly appears like Comey lied to Congress,” Shu said, adding that the allegations against James involve “straight-up mortgage fraud.”
‘Mutually assured destruction’ might be the only way to quell future abuse
Democrats now insist that the DOJ’s independence must be protected from Trump. Republicans argue that neutrality was compromised years earlier, and by the very officials raising alarms today.
Shu said long-term accountability depends less on formal rules than on who holds authority, including Senate-confirmed leadership.
“If the wrong person comes to power again, they can definitely start weaponizing whenever they darn well feel like it,” Shu said. “It’s a real problem.”
He noted that both parties helped confirm figures later accused of politicization, such as Holder, Garland, former Deputy Attorney General Sally Yates, and former FBI Director Christopher Wray.
“It isn’t just who’s the president,” Shu said. “For example, a lot of Republican senators voted to confirm Merrick Garland and Lisa Monaco. In hindsight, that was bad.”
OBAMA LEGACY IN THE BALANCE AS TRUMP ADMINISTRATION ESCALATES 2016 ELECTION INVESTIGATION
One possible deterrent may now be the expectation of pushback.
“If Democrats worry that Republicans are willing to fight back, then hopefully they will be less likely to weaponize the government,” he said. “It’s essentially a type of mutually assured destruction.”
