Buried within one of the dozens of executive orders that President Donald Trump issued in his first days in office is a section titled “Terminating the Green New Deal.” As presidential directives go, this one initially seemed like a joke. The Green New Deal exists mostly in the dreams of climate activists; it has never been fully enacted into law.

The next line of Trump’s order, however, made clear he is quite serious: “All agencies shall immediately pause the disbursement of funds appropriated through the Inflation Reduction Act of 2022 or the Infrastructure Investment and Jobs Act.” The president is apparently using “the Green New Deal” as a shorthand for any federal spending on climate change. But the two laws he targets address much more than that: The $900 billion IRA not only funds clean-energy programs but also lowers prescription-drug prices, while the $1.2 trillion bipartisan infrastructure law represents the biggest investment in roads, bridges, airports, and public transportation in decades. And the government has spent only a portion of each.

In one sentence, Trump appears to have cut off hundreds of billions of dollars in spending that Congress has already approved, torching Joe Biden’s two most significant legislative accomplishments. The order stunned even some Republicans, many of whom supported the infrastructure law and have taken credit for its investments.

And Trump didn’t stop there. Yesterday, the White House ordered a pause on all federal grants and loans—a move that could put on hold an additional tens of billions of dollars already approved by Congress, touching many corners of American life. Democrats and government watchdogs see the directives as an opening salvo in a fight over the separation of powers, launched by a president bent on defying Congress’s will. “It’s an illegal executive order, and it’s stealing,” Representative Rosa DeLauro of Connecticut, the top Democrat on the House Appropriations Committee, told me, referring to the order targeting the IRA and infrastructure law.

Withholding money approved by Congress “undermines the entire architecture of the Constitution,” Democratic Senator Chris Van Hollen of Maryland told me. “It essentially makes the president into a king.” Last night, Senate Minority Leader Chuck Schumer said that Trump’s freeze on federal grants and loans “blatantly disobeys the law.”

The Constitution gives Congress the so-called power of the purse—that is, the House and the Senate decide how much money the government spends and where it goes. Since 1974, a federal law known as the Impoundment Control Act has prohibited the executive branch from spending less than the amount of money that Congress appropriates for a given program or purpose. During Trump’s first term, the nonpartisan Government Accountability Office found that the administration had violated that law by holding up aid to Ukraine—a move that became central to Trump’s 2019 impeachment.

[Jonathan Chait: Trump’s second term might have already peaked]

Trump has argued that the Impoundment Control Act is unconstitutional, and so has his nominee for budget director, Russell Vought, who had the same job at the end of the president’s first term. Vought also helped write Project 2025, the conservative-governing blueprint that attracted so many attacks from Democrats that Trump disavowed it during the campaign.

In his Senate confirmation hearings this month, Vought repeatedly refused to commit to abiding by the impoundment act even as he acknowledged that it is “the law of the land.” “For 200 years, presidents had the ability to spend less than an appropriation if they could do it for less,” he told senators at his first hearing. During his second appearance, when Van Hollen asked him whether he would comply with the law, Vought did not answer directly. “Senator, the president ran against the Impoundment Control Act,” he replied. His defiance astonished Democrats. “It’s absolutely outrageous,” Van Hollen told me.

The pause on funds for the Biden-signed laws did not draw as much attention as other moves Trump made on his first day back in the White House, especially his blanket pardons for January 6 defendants. Nor was it the only one that appeared to test the limits of his authority. A separate executive order froze nearly all foreign aid for 90 days, while others targeted birthright citizenship and civil-service protections for federal employees.

But the order cutting off spending for the IRA and the infrastructure law could have far-reaching implications. State and municipal governments in both Democratic and Republican jurisdictions worry that they may not be able to use investments and grants that the federal government promised them. “It’s creating chaos,” DeLauro said. “I honestly don’t think the people who are dealing with this know what they are doing.” She listed a range of popular and economically significant programs that appear to be on pause, including assistance for home-energy bills and money to replace lead pipes that contaminate drinking water.

“It was alarming,” Representative Don Bacon of Nebraska told me. Bacon, a Republican who narrowly won reelection in a district Trump lost, called the White House after reading the text of last week’s executive order to seek assurance that money he’d secured for Nebraska—including $73 million to upgrade Omaha’s airport—wouldn’t be stopped.

The immediate confusion became so intense that a day after Trump signed the order, the White House issued a memo seeking to clarify its scope that seemed to slightly narrow its impact and open the door for some spending to continue. Bacon told me that he was assured the directive applied mostly to Biden’s electric-vehicle mandate, which Trump railed against on the campaign trail and is part of the IRA. DeLauro, however, said the memo offered little clarity: “Everything is at risk.”

Yesterday’s memo extending the funding pause to all federal grant and loan programs set off another frenzy. The directive sought to exempt Medicare and Social Security recipients, as well as other direct aid to individuals. But according to a copy of the memo published by The Washington Post, it explicitly targets “financial assistance for foreign aid, nongovernmental organizations, DEI, woke gender ideology, and the green new deal.”

Whether the funding pause constitutes an illegal impoundment is unclear. The executive branch does have some latitude in how it spends money. And yesterday’s memo instructs federal agencies to halt funding only “to the extent permissible under applicable law.” Describing last week’s order targeting the IRA and infrastructure law, Vought told senators that it was merely a “programmatic delay,” a term that arguably falls within what federal departments are allowed to do.

More broadly, executive orders are frequently less consequential than they appear, Nicholas Bagley, a law professor at the University of Michigan and occasional Atlantic contributor, told me about last week’s directive. “It’s one thing to try to get a really nice headline for cutting back on government spending. It’s another thing altogether to decline to spend money that people are expecting you to spend,” Bagley said. “I would not be surprised if rhetoric does not match reality.”

To Charlie Ellsworth, a senior adviser with the nonprofit watchdog Congressional Integrity Project, Trump’s executive order on clean energy unmistakably oversteps the law. “They could have done this legally, but they didn’t,” Ellsworth, a former Schumer aide, told me. A new administration, for example, could have justified a pause in spending to ensure that a program was being funded in accordance with the law. But the order instead instructs agencies to ensure that the spending aligns with new policies set by the Trump administration. Ellsworth said that the order is “self-evidently” illegal.

The fight is almost certain to wind up in the courts, which have repeatedly ruled against the president’s ability to withhold funds appropriated by Congress. Indeed, Vought’s Senate testimony seemed to invite a legal challenge that could lead the Supreme Court, now with a 6–3 conservative majority and three Trump-appointed justices, to reconsider the question. “That seems to be their game plan,” Ellsworth said. “They want to get sued. They want to go to the Supreme Court.”

Van Hollen told me that he believes the Court would rule against Trump but that preferably the dispute won’t get that far. “You would hope that Republicans in Congress recognize they have an institutional interest in protecting Article I [of the Constitution] and the power of the purse, which is clearly congressional,” Van Hollen said.

[David A. Graham: It’s already different]

Beyond the question of legality, Van Hollen warned that Trump’s orders would jeopardize virtually all negotiations over spending on Capitol Hill, because Democrats would not be able to trust the administration to keep its end of any agreement. Although Republicans have majorities in both the House and the Senate, they will need to strike deals with Democrats to avert government shutdowns and a catastrophic default on U.S. debt.

There were early signs of GOP pushback on last week’s spending freeze, but it fell well short of a revolt. Senator Rand Paul of Kentucky, the chair of the Homeland and Governmental Affairs Committee, said at one of Vought’s hearings that he disagreed with the administration’s view on spending and impoundments. “I think if we appropriate something for a cause, that’s where it’s supposed to go, and that will still be my position,” Paul said. And Senator Lindsey Graham of South Carolina, the chair of the Budget Committee, said at a second Vought hearing that he, too, had “concerns” about impoundment. But neither of them planned to stand in the way of the nominee who has argued for the president to wrest control of spending from Congress. “When you win, you get to pick people,” Graham told Vought. “And I’m glad he picked you.”

On the Republican side, the fight might be left to lawmakers such as Bacon, who has some protection from presidential retribution because he represents a purple district where voters might reward him for standing up to Trump. The GOP, he said, should go after policies it opposes through legislation, not executive order. “You just can’t determine what laws you want to execute and what you don’t,” Bacon said of Trump. Executive orders, he added, “have gotten out of hand” from presidents in both parties. “You can’t change the law,” Bacon said. “I think Republicans should stay true to that notion.”

The attempt to end birthright citizenship in the United States is an attempt to reverse history, to push our nation back, way back, before the Dred Scott decision of 1857 and the secession crisis that soon delivered the nation into the Civil War. Calling this action “unconstitutional” is utterly inadequate; the maneuver is the soiling of sacred text with profane lies.

Birthright citizenship is a shield of protection to anyone born in this country, as close to a national self-definition as we have; it is our legal DNA. Section 1 of the Fourteenth Amendment should be emblazoned on small laminated cards and carried in every American’s pocket. The language is amply clear:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.

That language is as fundamental to the Constitution as any other provision, perhaps even more important to the survival and growth of our pluralistic republic than the First Amendment, which protects free speech, free press, the right of assembly, and the right to petition the government. It is as inherent to constitutional function as federalism itself.

[Read: The Attack on Birthright Citizenship Is a Big Test for the Constitution]

The Trump administration now scoffs at this history, purporting to end this guarantee with an executive order signed on Donald Trump’s first day back in the Oval Office and tragically titled, in a fantastic act of Orwellian doublespeak, “Protecting the Meaning and Value of American Citizenship.” The administration makes a phony originalist argument based on the claim that the Fourteenth Amendment’s guarantee extended only to the freedmen and their descendants. Quite the contrary, the amendment’s authors explicitly envisioned the immigrant population and its descendants as part of their plan. Congressman John Bingham, Section 1’s author, defended the amendment by drawing on the authority of the Constitution’s Framers, who had “invited the workers and builders whose honest toil clothes and shelters nations,” and who hailed from “every civilized nationality” to become “citizens of the Republic.” This is why, in blocking Trump’s order last week, the Federal District Court Judge John C. Coughenour said without caveat: “This is a blatantly unconstitutional order.”

Section 1’s origins lie deep in our past. It is rooted in the petitions of African Americans during and after the American Revolution that demanded freedom and natural rights for their service to the patriot cause. It stems from many ideas and strategies of the British and American abolition movements. It echoes Thomas Jefferson’s inclusion of equality among “these truths” in the Declaration of Independence and Abraham Lincoln’s use of the same word in the Gettysburg Address, as well as his full-throated embrace of immigration well before the Civil War. Its most direct and powerful harbinger is the emancipation of nearly 4 million slaves in the midst of the war. Without that greatest transformation in American history, there would be no Fourteenth Amendment—no birthright citizenship and no equal-protection clause either, a codification just as sacred.  

Most profound, birthright citizenship is rooted in the blood of more than 700,000 Americans who died in the Civil War, a catastrophe that made possible what most historians now call the “second founding” of America. The rebirth harkened in the Fourteenth Amendment is the core of this phrase’s meaning. The Trump administration’s desire to obliterate birthright citizenship is part of a larger quest to undo most of this egalitarian tradition, to shift American history into a kind of permanent reverse gear back to an age of secure constitutional white supremacy.

[Read: The Coming Assault on Birthright Citizenship]

One cannot overstate the gravity of Trump’s proposed action, nor the historical ignorance on which it stands. The original Republicans who crafted birthright citizenship into the amendment were doing nothing less than harvesting the greatest results of the Civil War, making good on the promise of freedom for millions of any creed, color, or national origin at the time and for all time to come. Section 1 explained to the world what that war had meant. To erase any part of it now is to tarnish the legacy of William McKinley, Trump’s new favorite president, who fought in the Battle of Antietam. The Union victory there is what prompted the Emancipation Proclamation.

For Bingham, a deeply Christian abolitionist Republican from Ohio, this debate went back at least to the 1850s crises over the expansion of slavery. In 1858 he said, “Every man knows that under our free institutions, every person born of free parents within the jurisdiction of the United States … is a citizen of the United States.” Bingham, of course, overestimated such consensus, because Chief Justice Roger B. Taney in Dred Scott v. Sandford had ruled for a 7–2 majority of the Supreme Court the previous year that Black people possessed “no rights” whatsoever under American law. One of the grand purposes of the Fourteenth Amendment was to relegate the Dred Scott decision to history.

By the winter of 1866, as Congress debated the content of an amendment, it faced many overwhelming obstacles, especially bone-level, historical racism and the doctrine of federalism that fundamentally protected states’ rights. Congress had just fought an all-out war to restore the Confederate states to the Union and to end slavery with an overwhelming use of federal power.

But the Republicans, despite fierce debates, were confident. “I can hardly believe,” wrote Thaddeus Stevens, the radical floor manager for his party, “that any person can be found who will not admit that every one of these proposals is just.” They knew exactly what they intended to achieve. Bingham defended the amendment as protection of the “in-born rights of every person.” Stevens thought they had to “fix the foundations of the government on principles of eternal justice.” Senator Lyman Trumbull saw them advancing principles “which the great Author of all has implanted in every human breast.” They believed that they were enacting justice and morality, not only for freed slaves but for the country’s immigrant future, a fact they deeply understood because they had lived through the recent waves of Irish and German immigration.

[Read: The Real Origins of Birthright Citizenship]

As for states’ rights, Bingham had a constant answer. For “generations to come,” he announced, he sought to “arm Congress … with the power to enforce the Bill of Rights as it stands in the Constitution … in the states.” In the states, by federal power.

In floor debates, Bingham spoke with great eloquence about the purposes of the amendment. “The day of the freedman’s deliverance has come,” he declared, “not without suffering, not without sorrow, not without martyrdom, not without broken altars and broken hearts.” But now he saw potential days of glory, not only for ex-slaves but for the immigrant. The Constitution could now “provide that no man, no matter what his color, no matter beneath what sky he may have been born, no matter in what disastrous conflict or by what tyrannical hand his liberty may have been cloven down, no matter how poor, no matter how friendless … shall be deprived of life or liberty or property without due process of law.” Above everything, “all persons born” here were forever citizens.  

Trump and his allies have picked a fight over this crucial provision in the Constitution. Americans have to engage the fight, in the courts and with every mode of persuasion. Trump and his allies’ vision is an egregious abuse of real history and the new Constitution it forged in the 1860s. If they succeed, then Grant has surrendered to Lee at Appomattox.

The Capitol One Arena is rather dreary. The 27-year-old venue was considered so outdated—and the neighborhood around it so drab—that last year the owner of the Washington Capitals and Wizards threatened to move the teams to Virginia.

But today, the arena will be the unlikely venue where Donald Trump’s political powers and showman’s instincts will be placed on full display.

A tiny desk, affixed with the presidential seal and bathed in red, white, and blue lights, has been placed on a stage built in the center of the arena where—in lieu of a traditional inaugural parade—Trump will hold a rally this afternoon. That is where he is expected to sit and sign a slew of executive orders. His efforts to reshape national policy and presidential power will come not in a quiet Oval Office but in front of a raucous crowd of supporters.

Trump officially completed his stunning comeback by taking the oath of office just after noon today in the Rotunda of the U.S. Capitol. But his second term, in many ways, will truly begin a few hours later in that packed arena about a mile away. An executive producer at heart, Trump has always leaned on the power of imagery in cultivating political force. And in his inaugural address, he was stage-managing his sequel, a presidential spectacle that offered a preview of his plans for his second act.

There were few notes of unity.

“My recent election is a mandate to completely and totally reverse a horrible betrayal,” Trump said, “and all these many betrayals that have taken place, and give people back their faith, their wealth, their democracy, and indeed their freedom. From this moment on, America’s decline is over.”

The frigid temperatures gave Trump an excuse to move the inauguration inside, much as Ronald Reagan did in 1985, and they provided him with further control of the pageantry. By not braving the cold—and, to be clear, several inaugurations have been colder—Trump also dispensed with any focus on the size of his crowd, something that upset him deeply eight years ago.

Moreover, he was able to mark his return to power in the very space where a violent mob of his supporters tried to overturn an election to keep him in power. Four years ago, a crowd radicalized by lies of a stolen election stormed the U.S. Capitol and desecrated its Rotunda, committing acts of violence in Trump’s name. Today, official Washington used that same historic hall to welcome him back to power.

If Trump had delivered his speech in its customary outdoor location on the Capitol’s west front, the cheers from the crowd down on the mall below would have been distant. But the indoor setting invoked a State of the Union address, held annually just down the hall in the House of Representatives chamber. And Trump furthered that feeling with a partisan speech, pushing a litany of policy proposals. Reactions split along party lines, with Republicans repeatedly leaping to their feet to applaud and Democrats, including outgoing President Joe Biden, sitting silently.

Trump leaned into the visual messaging of the Capitol ceremony. For most people, seating charts are mundane, tiresome organizational tools. But they are prized in Washington for clues as to who’s up and who’s down, offering a literal map of proximity to power. The signals sent by Trump were clear: GOP donors and friends such as Miriam Adelson and Dana White were seated right behind the row for former presidents. His new tech-billionaire friends—Elon Musk, Jeff Bezos, and Mark Zuckerberg—got prime seats inside the Rotunda, in front of the incoming Cabinet, while a number of Republican governors, including Ron DeSantis of Florida, Glenn Youngkin of Virginia, and Brian Kemp of Georgia, were shoved to the overflow room.

Inauguration Day was designed to showcase democracy’s strength. Instead, the events of the day showed its inherent fragility. Biden provided Trump what Trump did not give him—a peaceful transfer of power with all the niceties of ceremony—but the outgoing president was so concerned about his successor exacting revenge that he issued extraordinary preemptive pardons to some government officials and members of his own family, which cut sharply against his pledge to restore democratic norms.

As his motorcade wound its way through Washington, Trump was surrounded by his own image. Many of those thronging the nation’s capital—even those shut out of the events by the weather-related scheduling changes—sported shirts and sweatshirts emblazoned with Trump’s mugshot taken at Fulton County Jail, in Atlanta, when he was charged in August 2023 with racketeering. At the time, that case in Georgia was just one of four criminal cases that imperiled Trump, though it was the only one that produced a booking photo quickly disseminated around the globe.

Many Democrats hoped it would doom Trump’s chances, undermining a campaign that was about retribution, yes, but also about keeping the candidate out of prison. But three of the cases fell by the wayside, derailed by stalling tactics, prosecutorial blunders, and a helpful Supreme Court ruling on presidential immunity. And the one case that did move forward—the hush-money trial in New York—ended with a conviction that will be recorded in the history books but meant little else.

Trump has mused that the legal proceedings created images that reinforced his claim to be a victim of a government overreach, the subject of a witch hunt, a martyr taking arrows for his supporters. Throughout the race, he used those visuals to recast political vulnerabilities as visceral symbols of toughness and power. Day after day, the Republicans flocked to the courthouse—sometimes in matching red ties—to demonstrate their fealty. And many in the GOP saw his mugshot not as a sign of wrongdoing or guilt, but as an image of strength and defiance. He used it for countless fundraising appeals and merchandising opportunities.

That wasn’t an accident. In the weeks before Trump’s own arraignment, he saw the case’s other defendants pose for unflattering booking photos that looked washed-out and weak. So Trump practiced various facial expressions, one of his advisers told me on condition of anonymity to discuss private moments. He eventually settled on a scowl, matching his first instinct. And then in the booking room, Trump told confidants later, he saw where the light was coming from and positioned his face, frowning and leaning forward, half in the shadows and half in the full glare.

Trump loved the result. And when it came time to pose for photos for the official inaugural program, he re-created it, his adviser told me. Vice President J. D. Vance’s portrait looks like most official portraits: a pleasant closed-mouth smile, plenty of light illuminating his face. Trump instead asked for an extreme close-up, like his booking photo, with his face somewhat in shadow, glaring at the audience. The photo shaved years off his 78-year-old face and projected a strongman’s toughness.

The other image that defined the 2024 campaign was captured moments after an assassin’s bullet grazed Trump’s ear during a campaign stop in Butler County, Pennsylvania. With blood from his wounded ear streaking across his face, Trump had the showman’s presence of mind to stop the Secret Service agents trying to hustle him to safety. He stood tall, pumped his fist at the roaring crowd, and yelled, “Fight, fight, fight!” It was moment of inspiration—captured in a series of instantly famous photographs—and, for Trump loyalists, perfectly showcased a political survivor.

John F. Kennedy was considered the originator of modern presidential iconography, while Reagan enhanced it. But even more than his glamorous predecessors, Trump knows that the pictures matter far more than the substance. His whole political career has been built around imagery. It was launched on the back of The Apprentice, the highly stylized version of his business career that exaggerated his success and made him America’s CEO.

After he was elected, I saw his skill at stagecraft firsthand while covering his White House. Some images he created were meant for the history books, such as when he left those of us in the press pool behind to step over the border at the DMZ and into North Korea, becoming the first U.S. president to set foot in the hermit-like nation. Others were more mundane: During an Oval Office interview ahead of the 2018 midterms, Trump stopped the questions to make sure the photographer had the most flattering lighting. He held up his hand, and issued instructions.

“Let’s make sure this looks the way it should,” Trump said, unsmiling, while directing the angle and illumination of the photos.

That same attention to the power of political imagery was on display again in Washington today, from the Capitol Rotunda to the Capitol One Arena. Moments after completing his inaugural address, Trump spoke to the overflow room and began by praising the stagecraft of the ceremony.

“It was so beautiful in there today that maybe we should do it every four years,” said Trump, who added that the Rotunda featured “the best acoustics I’ve ever heard in a room.”

He smiled at the camera.

No president has ever attempted to do what Donald Trump now proposes to do—assemble a small team of former personal attorneys and install it at the highest levels of the Department of Justice. The president-elect first named lawyers who have represented him in recent years to the key positions of deputy attorney general, principal deputy attorney general, and solicitor general. Then, with the quick death of the Matt Gaetz nomination, he announced a new attorney-general nominee, Pam Bondi, who was a member of his legal defense team in the first impeachment. The Justice Department’s responsibilities have always been subject to competing expectations: that it would keep politics out of law enforcement but, like other departments, would loyally serve the president in the implementation of his governing program. The results have been uneven, and at times disastrous, as with Richard Nixon and the Watergate scandal. But when problems arose, they were relatively localized: the product of poor appointments, or the failure of particular presidents in particular situations to respect institutional values and norms. What the DOJ faces now is different in kind: a vision of White House control achieved through the appointments of individuals the president has chosen because they have worked for him and demonstrated their loyalty. The pressing question now is whether these lawyers may be, as the president-elect likely hopes, the “president’s lawyers” in more than one sense.

The DOJ’s special status as “independent” is not provided for in the Constitution, but is also not solely a product of “norms” established in the post-Watergate era, as many standard accounts would have it. The office of attorney general was created by the Judiciary Act of 1789, and this context is meaningful. The attorney general’s function, which involved rendering legal opinions and representing the United States before the Supreme Court, was perceived to be quasi-judicial. The Senate version of the bill even provided that the Court would appoint this officer. The final bill called for the attorney general to be a “meet [fit] person learned in the law.” This language points clearly in the direction of expected professionalism, and historians have noted that legal opinions the attorney general rendered to executive-branch agencies were expected to be “impartial and judicial.”

The department’s history is not one of limitless glory, in which all attorneys general appointed to the office were the most “meet” and “learned.” But the understanding was that this officer would perform up to some professional standard. Edward Bates, an attorney general in the Lincoln administration, famously stated, “The office I hold is not properly political, but strictly legal, and it is my duty, above all ministers of state, to uphold the law and resist all encroachments, from whatever quarter, of mere will and power.” (Emphasis in the original.)

[Read: Judge Cannon comes to Trump’s aid, again]

In 1870, the Department of Justice was established, and the attorney general became its leader. Following the Civil War, the government’s legal work grew in volume and complexity, and much of it was hired out to costly private counsel. Additionally, various departments across the government hired their own legal representation, which resulted in a lack of consistency in the country’s legal positions.

But there was another motivation: One scholar, Jed H. Shugerman of Fordham University, has noted that the use of outside counsel presented risks of “sycophancy, cronyism, and lawlessness.” Reform-minded critics believed that a government department would enhance professionalism and efficiency, and therefore provide for the separation of law from politics in federal law administration and enforcement. It would stand for expertise and independence of judgment.

But because the DOJ was an executive department like many others, charged with supporting the president’s policies and programs, tension persisted between professionalism and fidelity to the president’s policy agenda—between “too little” and “too much” politics—and it has persisted to this day. “Too little” politics, and the president was denied a legitimate instrument for the achievement of his policy goals; “too much” politics, and the impartiality of law enforcement would be compromised.

Striking the right balance was always a challenge. Senator Alan Cranston of California, who was active in the debates after Watergate, acknowledged, “Even our best attorneys general have never been free from suspicions that because they are political appointees of the president, they will be loyal to him over any other call of duty.” And presidents did not always go out of their way to make appointments likely to assuage these concerns. Dwight Eisenhower, Richard Nixon, and Ronald Reagan, for example, chose their attorneys general from the ranks of their campaign’s senior officials. John F. Kennedy nominated a former campaign manager—who was also his brother, was only 35 years of age, and had never practiced law.

So, the tale is not just about Watergate. That scandal, which implicated (and led to the imprisonment of) numerous senior lawyers in the Nixon administration, launched a cycle of concern about the dangers of federal law enforcement conscripted into a president’s personal and political (and, in Nixon’s case, also illegal) projects. The Nixon lawyers violated law in support of a crude scheme and cover-up to aid the president’s reelection effort. No plainer example of the contamination of law by politics might be imagined. But the “after action” analysis of what went wrong did not mark the advent of new norms, but instead another phase in the historic struggle to strike the balance between “two little” and “too much” politics.

The debate over this balance took a new direction when Sam Ervin, the former chair of the Senate Watergate committee, proposed legislation to turn the DOJ into an independent agency. Setting aside the constitutional question—whether the federal law-enforcement function could be entirely exempted from executive control—the proposal was found wanting on practical grounds. The president needed counsel of his own choice: The department legitimately owes the chief executive its principled fidelity to the achievement of the policy goals presumably mandated by the voters. Ervin held hearings on his proposal at which witnesses from both sides of the political divide testified against full DOJ independence from the president.

The testimony before Ervin’s committee included the warning that an independent department would further empower the White House counsel, a position appointed by the president without Senate confirmation. Presidents looking to exercise more control over the legal affairs of their administration than an independent DOJ might allow could rely on the White House counsel as the key source of legal advice, right there in the West Wing. This senior staff lawyer could quickly become the de facto, shadowy head of what one critic of the plan, the former counsel to President Kennedy, termed “a little department of Justice.” (Some of this came to pass anyway; the White House counsel would become highly influential in the president’s legal affairs in many administrations, and critics have argued that the office has encroached on the attorney general’s constitutional territory.) The American Bar Association came out against Ervin’s proposal.

Eventually, the Ervin plan failed, as did others like it. Soon, the question was how to adjust the balance between politics and nonpartisanship, between a commitment to the president’s governing program and independence in law-enforcement decisions. Congress passed a number of reforms designed to control the abuse of presidential power for improper political purposes, such as a 10-year term for the FBI director; restrictions on access to IRS records; the establishment of a special court to approve electronic law-enforcement surveillance; and the creation, in 1978, of the post of inspector general at agencies across the government, including at the DOJ. Additionally, in the years since Watergate, presidential administrations have routinely established policies restricting their staff’s communications with the Department of Justice in order to, as the version from the Biden White House puts it, “ensure that DOJ exercises its investigatory and prosecutorial functions free from the fact or appearance of improper political influence.”

But even with reforms, much will always depend on the quality of appointments to the DOJ’s top positions. Daniel J. Meador, a former assistant attorney general and respected legal scholar, concluded that “in the end it is the individual occupying the office that will determine, more than anything else, whether an ‘incompatible marriage’ [between politics and law enforcement] is consummated or prevented in the administration of federal justice.” The American Bar Association concurred, arguing that the confirmation process for an attorney general “should assume the same importance” as that for a nominee to the Supreme Court.

[David A. Graham: Trump’s DOJ was more dangerous than we knew]

Some post-Watergate presidents have chosen judges or lawyers with extensive department or law-enforcement experience to serve as attorney general; others have selected those with whom they’ve had a personal or political connection. A number of presidents appointed AGs from the senior ranks of their political campaign’s advisers, including their campaign managers.

But Trump has set himself apart from even these predecessors, viewing the Department of Justice in the most personal of terms as his own. He has not bought into the goal of a quasi-independent DOJ. He has openly questioned why he should not have complete control over the department. This is, he proclaims, his “absolute right.” He expects “loyalty” from his staff and appointments, the DOJ included, and the loyalty he apparently has in mind is the unhampered variety modeled by his personal counsel of many years, Roy Cohn. As Trump put it, Cohn “was vicious to others in his protection of me.” The loyalty owed to him, particularly from his lawyers, was what he understands to be “protection.” When his first attorney general, Jeff Sessions, previously co-chair of his 2016 presidential campaign, recused himself from all matters involving the campaign, including the investigation into Russian ties, Trump reportedly raged at him that his AG was supposed to protect him. The recusal, therefore, constituted an act of personal betrayal and not, as Sessions viewed it, a decision necessarily reached after consultation with senior DOJ officials.

Trump’s intent to nominate multiple members of his personal legal team—lawyers whose loyalty has been tested in attorney-client relationships of keenest importance to the client—indicates that he is looking to seal in the personal protection he was denied in his prior term. In recognizing the danger here, it is not necessary to minimize or dismiss the professional qualities and accomplishments of all the lawyers he has chosen. Some (Todd Blanche and Emil Bove) have criminal law-enforcement experience. The nominee for solicitor general (D. John Sauer) has had clerkships and other experiences shared by many leading appellate advocates. But, if confirmed, these lawyers would come to their positions on the basis of their close and recent service to the president-elect as his personal counsel. And these officials may be working under Pam Bondi, who also participated in the president’s personal legal defense in his first term. This would be a consequential shift in the understanding of where the line ought to lie between “too little” and “too much” distance between the DOJ and the White House.

Presidents anxious to have loyal support from lawyers close to them have put their hopes in the White House counsel rather than a politically vetted, personally loyal corps of DOJ officials, and placed those to whom they were close in that role. One former DOJ official, the late Justice Antonin Scalia, put the point in mild terms when he characterized White House counsels as sources of “permissive and congenial advice.”

The Trump nominations represent an incoming president’s choice to take a more direct route to that advice. There is a far higher risk that the president will expect from these government lawyers the loyalty a client believes is owed by personal counsel. White House counsels have no power other than the opportunity to advise on the law, and certainly none to initiate investigations or prosecutions. Attorneys general, and those supporting them at the most senior levels of the DOJ, have broad authority and discretion in law enforcement.

Reagan selected a personal attorney, William French Smith, as attorney general, and this choice drew attention—as well as very specific assurances from the nominee. Asked during his Senate confirmation process whether this history of professional service would compromise his impartiality, Smith began by minimizing the extent of his role as Reagan’s personal lawyer—evidently in the belief that it was best downplayed: “Actually, although I have been referred to as the president’s personal attorney, that relationship probably has been the least significant aspect of my relationship with him.” He then committed to a comprehensive recusal policy:

I would have to be very conscious of situations where it could appear that because of that relationship, a problem might be created. Certainly, if a situation arises involving the president or a member of his family or others in a sensitive situation, I would recuse myself from participating or handling any aspect which might develop out of that situation.

Recusals at the Department of Justice, considered in consultation with career ethics advisers, are not uncommon. The test, as Sessions stated in his own recusal, is a broad one, applicable to any matter in which an official’s “impartiality might reasonably be questioned.” Attorneys general have recused themselves when a former aide was involved in an inquiry, or an adult child was defense counsel to an officer of a firm under investigation, or the CEO of such a company had made a contribution to a political campaign the attorney general had run some two years before. In the case of Trump’s senior DOJ nominees, the recusal issues are plainly presented by their recent and extensive personal attorney-client relationship with the president-elect. Among those issues are these lawyers’ potential future involvement in plans Trump has announced for “de-politicizing” the department, and, relatedly, potentially advising on his interest in retribution directed against political enemies. In both cases, a source, if not the main source, of Trump’s concerns and plans is the criminal prosecutions in which these lawyers were his defense counsel. How recusal requirements play out for these lawyers remains to be determined—recusals are fact-specific—but numerous questions might develop about whether they can advise on changes to DOJ programs and policies that the president might be considering.

Another question for these nominees is their commitment, beyond appropriate recusals, to other tools and procedures in place at the department to protect against abuse of investigative and prosecutorial power. The risk of abuse is by no means conjectural. Even if Trump and his supporters could reasonably point to problems in the conduct of federal law enforcement, he has never stopped there, instead threatening retaliation in extreme terms against political adversaries. The president is not barred in any way from communicating his expectations directly and freely to DOJ officials about his retaliatory impulses or designs, and, as the Supreme Court recently held, he will be fully immunized from any legal consequences.

How, then, will these nominees manage the unique pressures they face—in which the president’s perception of their loyalty is grounded in service to him as personal counsel? At the least in the case of the solicitor general designate, John Sauer, the signs so far are not encouraging. On December 27, as personal counsel to President-elect Trump, he filed a brief with the Supreme Court in the pending TikTok case. The Court is preparing to decide whether Congress may constitutionally ban the platform’s domestic operations unless, by January 19, 2025, it arranges by divestments to end Chinese-government control. Sauer argues that the Court should take action to prevent the ban from going into effect, giving time for Trump to take office and resolve the issue through some unspecified form of negotiated settlement. The nominee’s personal representation of Trump in a case involving his second-term presidency is sufficiently troubling, but his brief also brims over with adulatory language about Trump’s personal skills and successes: his “consummate dealmaking expertise,” his “resoundingly successful social-media platform, Truth Social,” his “first Term … highlighted by a series of policy triumphs achieved through historical deals.”

[David A. Graham: Aileen Cannon is who critics feared she was]

This is the lawyer acting as a publicist, or perhaps just bending far in the direction of the personal client’s desire for plaudits—hardly the right posture for someone soon to come before the Senate for confirmation as the senior DOJ official to represent the United States in the federal courts. Even The Wall Street Journal, far from unfriendly to the new administration, flinched: “The SG isn’t supposed to be Mr. Trump’s personal attorney, and Mr. Sauer’s brief won’t help his credibility with the Justices if he is confirmed by the Senate. We trust the Justices will ignore this amicus sophistry.”

In the confirmation process, Sauer should be questioned about this choice of representation and what it suggests, or doesn’t, about his view of the solicitor general’s role. And all the nominees from the president’s personal legal team should be examined on their understanding of and commitment to other procedures and policies now in place at the DOJ to protect the appropriate degree of independence and impartiality. For example, what are these nominees’ view of the department’s Domestic Investigations and Operations Guide (DIOG), which applies to “sensitive investigative matters” such as those involving a political official or political party, or a political ally or adversary of the president? The guide’s stated purpose is to “ensure that all investigative and intelligence collection activities are conducted within Constitutional and statutory parameters and that civil liberties and privacy are protected.” Also, in the past, the DOJ has adopted, and formally communicated to Congress, the position that politically motivated prosecution decisions might violate federal obstruction-of-justice law. Underlying this view is the department’s embrace of the principle that “undue sensitivity to politics” is inconsistent with “fairness and justice” and that “partisan political considerations [should] play no role in … law enforcement decisions.” In the upcoming confirmation proceedings, senators should ask for the nominees’ perspective on these principles and their conscientious application.

The hope now should be for a serious confirmation process in which these fundamental institutional stakes, not purely partisan differences, should be front and center. All too often in recent years, the debate over institutional questions of this kind has become a referendum on Trump himself. This is not altogether avoidable: These are Trump’s nominees, reflecting Trump’s plans for the presidency and for the DOJ, and the parties are deeply divided on his politics and governing program. But if the debate is framed in the simplest terms—for or against Trump—the larger implications for the institution of the Department of Justice will recede into the background, if they are not lost entirely, and the prospect for responsible bipartisan deliberation will be lost. The public deserves better than that.