Introduction

Drawing on my experiences as a senior January 6 prosecutor, legal academic and rule of law scholar, and political scientist studying democratic failure, I argue that the Trump Administration’s recent post-inauguration attacks against career January 6 prosecutors should not be understood to merely reflect routine shifts in enforcement priorities or isolated instances of retaliation against prosecutors associated with disfavored cases. Rather, the attacks should be more broadly understood as a notable attempt at what political scientists call “capturing the referees”—a key indicator of democratic backsliding and failure around the world. 1Open this footnote Close this footnote 1 Steven Levitsky & Daniel Ziblatt, How Democracies Die 78-81 (2018); see Aziz Huq & Tom Ginsburg, How to Lose a Constitutional Democracy, 65 UCLA L. Rev. 78, 160 (2018). …Open this footnote Close Drawing on the work of social scientists, this Essay suggests a roadmap for resisting capture under these circumstances.

I. The January 6 Prosecutions

Former Attorney General Merrick Garland has described the Department of Justice’s investigation into the events of January 6, 2021 as “the most wide ranging investigation, and the most important investigation that the Justice Department has ever entered into.” 2Open this footnote Close this footnote 2 Associated Press, WATCH: Jan. 6 Probe is Most Important in DOJ History, Garland Says, PBS News (July 20, 2022, 7:37 PM EDT), https://perma.cc/‌HT5P-RQV6. …Open this footnote Close Nearly 1,600 individuals were charged in connection with January 6 for federal crimes including trespass, destruction of property and theft, participation in a civil disorder, assault on a federal officer, and seditious conspiracy. 3Open this footnote Close this footnote 3 This Essay focuses principally on the prosecutions of the nearly 1,600 federally charged individuals who either entered or were present near the United States Capitol on January 6, 2021, as opposed to Special Counsel Jack Smith’s related prosecutions involving President Trump. In addition, approximately thirty-seven additional prosecutors, staff, and U.S. Marshals working on Special Counsel Jack Smith’s team have been fired in waves since January 2025. See Roger Parloff, The High-Water Mark of the Jan. 6 Prosecutions, Lawfare (Jan. 6, 2025, 9:49 AM), https://perma.cc/‌E3RR-FEEV; U.S. Dep’t of Just., 48 Months Since the Jan. 6 Attack on U.S. Capitol, https://perma.cc/‌JQ7U-XYL3 (archived July 13, 2025); Glenn Thrush, Devlin Barrett & Adam Goldman, Justice Dept. Fires Prosecutors Who Worked on Trump Investigations, N.Y. Times (Jan. 27, 2025), https://perma.cc/44H9-ALP2‌; Sarah N. Lynch, US Justice Department Fires Two Tied to Trump Probes, People Familiar Say, Reuters (June 10, 2025, 5:45 PM EDT), https://perma.cc/‌94N3-2DXN; Sarah N. Lynch & Andrew Goudsward, US Justice Department Fires Several More Employees from Jack Smith’s Team, Sources Say, Reuters (updated July 14, 2025, 6:08 AM EDT), https://perma.cc/‌MP9S-WNLZ; U.S. Dep’t of Just., Sentences Imposed in Cases Arising out of the Events of January 6, 2021 (Dec. 18, 2023), https://perma.cc/‌C887-892G. …Open this footnote Close These crimes were documented in extraordinary amounts of surveillance video and third-party video, including video taken by defendants themselves. As then United States Attorney for the District of Columbia Matthew Graves put it, “[t]he crimes that occurred that day are probably the most recorded crimes in all of our history.” 4Open this footnote Close this footnote 4 Scott Pelley, Aliza Chasan, Aaron Weisz & Ian Flickinger., U.S. Attorney Matthew Graves Says that Jan. 6 Has “Probably the Most Recorded Crimes in All of Our History,” CBS (Sept. 15, 2024, 7:33 PM EDT), https://perma.cc/‌XYA6-LYWG. …Open this footnote Close Federal judges had presided over approximately 260 trials 5Open this footnote Close this footnote 5 Id. at 2. …Open this footnote Close —and yet only two defendants were fully acquitted, both by judges in bench trials. 6Open this footnote Close this footnote 6 Alanna Durkin Richer & Michael Kunzelman, Here’s Where Jan. 6 Trials Stand on the Fourth Anniversary of the Capitol Riot, PBS News (Jan. 6, 2025, 10:03 AM EDT), https://perma.cc/‌2U6A-JE4E. …Open this footnote Close Across all the cases, there was not a single finding of selective prosecution, malicious prosecution, or a Brady violation. Four of the judges overseeing these cases were nominated to serve as district judges by President Trump. 7Open this footnote Close this footnote 7 See President J. Donald Trump Announces Judicial Candidate Nominations, The White House: Nominations & Appointments (June 7, 2027), https://perma.cc/‌DFX2-QTCP; Carl Nichols, ‘96: Nominated to Serve as a District Judge on the US District Court for the District of Columbia, U. Chi. L. Sch. (June 7, 2018), https://perma.cc/‌6RJW-QY8H; John Bellinger, The D.C. District Court and the Jan. 6 Cases, Lawfare (Jan. 3, 2022), https://perma.cc/‌V4QP-GYUB; U.S. Dep’t Just., Sentences Imposed in Cases Arising out of the Events of January 6, 2021 (Dec. 18, 2023), https://perma.cc/‌6EZ2-GRKR. Federal judges are ethically obligated to uphold the integrity and independence of the federal judiciary, and their views may differ from those of the President that initially nominated them for judicial service. Code of Conduct for U.S. Judges (Jud. Conf. of the U.S. 2019), https://perma.cc/‌UH69-5QD5. …Open this footnote Close

Despite the near universal convictions, January 6 prosecutors have experienced significant retaliation after President Donald Trump’s second inauguration. Approximately eighteen January 6 prosecutors were fired, at least seven senior January 6 prosecutors were demoted, and the Department immediately launched an investigation into all prosecutorial uses of the principal obstruction statute in the cases. 8Open this footnote Close this footnote 8 See infra notes 36-57. …Open this footnote Close Well over 250 Assistant United States Attorneys (AUSAs) filed notices of appearance in these cases, and approximately fourteen have publicly defended the prosecutions after the subsequent pardons and firings of associated prosecutors. 9Open this footnote Close this footnote 9 See, e.g., Prosecutor in Jan. 6 Cases Responds to Trump’s Pardons of Rioters, NBC News (Jan. 21, 2025), https://perma.cc/‌83CA-B85B; MSNBC, ‘Appalling’: January 6 Prosecutor Voices Outrage at Trump Pardoning ‘Very Dangerous People,’ (YouTube Jan. 24, 2025), https://perma.cc/‌V4CP-X6F6; CNN, Former January 6 Prosecutor Quits DOJ Over Trump Pardons, (YouTube, Jan. 28, 2025), https://perma.cc/‌5TFB-849B; Press Release, Soc’y for the Rule of Law, Conservative Attorneys & Jan. 6 Prosecutors Issue Letter Calling on DC Court of Appeals to Investigate Ed Martin (Apr. 14, 2025), https://perma.cc/‌XT98-UPFW; Tom Dreisbach, Why a DOJ Prosecutor Resigned, Telling Coworkers and Bosses ‘You Serve No Man,’ NPR (Mar. 20, 2025, 4:00 PM ET), https://perma.cc/‌V996-Q7VS; Anthony W. Mariano, I Was a Jan. 6 Prosecutor. The Truth of That Day Cannot Be Erased, Bos. Globe (updated Mar. 14, 2025, 3:00 AM), https://perma.cc/‌J8J9-TUUL; Scott Pelley, Firings and Resignations at the Department of Justice in First Weeks of the Trump Administration, CBS News, (Feb. 23, 2025, 7:33 PM EDT), https://perma.cc/‌8SB9-XHX4; Fired Prosecutor Who Handled Jan. 6 Cases Responds to Trump, CNN (Feb. 5, 2025), https://perma.cc/‌P3V2-MBFB; ‘Wild Goose Chase’: Jan. 6 Prosecutor Who Just Resigned Slams ‘Review’ of Jan. 6 Prosecutions, MSNBC (Jan. 27, 2025), https://perma.cc/‌GRV6-AVQA; Ryan J. Reilly, Jan. 6 Prosecutors Describe ‘Shocking,’ ‘Guttural’ Week After Trump’s Pardons, NBC News (Jan. 25, 2025, 12:44 AM UTC), https://perma.cc/‌E4FP-H42C; Jason Manning, I Prosecuted Jan. 6 Rioters – And I’ll Never Regret It, MSNBC (Jan. 24, 2025, 6:00 AM EST), https://perma.cc/‌E2U6-TRYG; Video posted by Senate Judiciary Democrats (@JudiciaryDems), X, Clear and Present Danger: The Trump Administration’s Whitewashing of the January 6th Insurrection: Before the S. Comm. (Apr. 30, 2025), https://perma.cc/‌B9BC-6TBK; Roger Parloff, Alexis Loeb & Jen Patja, Lawfare Daily: Former Deputy Chief of the Justice Department’s Capitol Siege Section Alexis Loeb on President Trump’s Pardons, Lawfare (Jan. 23, 2025, 8:00 AM), https://perma.cc/‌MYM6-VQNK; Trump’s Pardons for Rioters ‘Disturbing,’ Former Top Jan. 6 Prosecutor Says, ABC News (Jan. 22, 2025), https://perma.cc/‌79WU-HYJW; Raymond Hulser, I’m a Career Prosecutor. Trump Fired Me, but I Know What I Did for the U.S., Wash. Post (Feb. 12, 2025), https://perma.cc/‌6VVE-NA9D; Scott McFarlane, Top Jan. 6 Prosecutor Greg Rosen Resigns from DOJ, Says Trump Pardons Sent “Terrible Message,” CBS News (June 3, 2025, 9:26 AM EDT), https://perma.cc/‌TCF2-M2NV. …Open this footnote Close These facts are ones we must better understand.

II. Sources of Prosecutorial Independence

An elaborate web of formal constitutional, statutory, and regulatory authority ostensibly protects prosecutors from interference by executive officials seeking to use criminal process to punish political opponents: the Due Process and Take Care Clauses, which guarantee fundamental fairness and faithful execution (and restrict prosecutions based on impermissible personal motives); the Equal Protection Clause and the First Amendment, which prohibit the selection of targets and charges based on protected characteristics or speech; the Hatch Act limiting certain forms of partisan political activity; 10Open this footnote Close this footnote 10 5 U.S.C. § 7323. …Open this footnote Close White House contact memos limiting contact with political appointees; conflicts of interest statutes and financial disclosure provisions; limits on disclosures of grand jury material under the Federal Rules of Criminal Procedure; 11Open this footnote Close this footnote 11 Fed. R. Crim. P. 6. …Open this footnote Close oaths taken by prosecutors to the Constitution; executive branch and Department of Justice standards of conduct; 12Open this footnote Close this footnote 12 5 C.F.R. § 2635; U.S. Dep’t of Just., Just. Manual § 9-27.000 (2024); Id. § 1-4.000. …Open this footnote Close state and model ethics rules; 13Open this footnote Close this footnote 13 Model Rules of Pro. Conduct (Am. Bar Ass’n 2025). …Open this footnote Close the Whistleblower Act; 14Open this footnote Close this footnote 14 The Whistleblower Protection Act of 1989, Pub. L. No. 101-12, 103 Stat. 16 (codified as amended at 5 U.S.C. § 2302(b)(8)-(9)). …Open this footnote Close and related duties to report misconduct to the Office of the Inspector General, Office of Professional Responsibility, and the Office of Special Counsel. 15Open this footnote Close this footnote 15 See generally Protect Democracy, Supporting and Defending the Constitution: A DOJ Attorney’s Guide to Upholding Ethical Obligations And the Rule of Law (2024), https://perma.cc/‌DKM4-6QDC (detailing constitutional, legal, and ethical sources of prosecutorial independence). …Open this footnote Close

These formal protections reflect myriad informal norms that insulate prosecutors’ decisions from executive branch influence. Executive branch officials have generally accepted their limited role in inquiring about individual prosecutors’ investigative and charging decisions. 16Open this footnote Close this footnote 16 Brian Richardson, The Imperial Prosecutor, 59 Am. Crim. L. Rev. 39, 47 (2022); Todd David Peterson, Federal Prosecutorial Independence, 15 Duke J. Const. L. & Pub. Pol’y 217, 222 (2020). …Open this footnote Close “The norm of prosecutors’ independence is now taken to ‘be so embedded in our understanding of criminal justice that that both the Executive and Judiciary have implicitly accepted it in the way that they exercise their powers.’” 17Open this footnote Close this footnote 17 Richardson, supra note 16, at 49 (quoting Bruce A. Green & Rebecca Roiphe, Can the President Control the Department of Justice?, 70 Ala. L. Rev. 1, 11-12 (2018)). …Open this footnote Close As David Sklansky has described it:

The prosecutor gets law enforcement officers to investigate, magistrates to issue warrants, grand juries to indict, defendants to plead guilty (or, if necessary, trial juries to convict), and judges to imprison. Little of this is done by actually ordering anyone to do anything; almost all of it is influence. We might say that the power of prosecutors is the ability to cause outcomes through influence. 18Open this footnote Close this footnote 18 David A. Sklansky, The Nature and Function of Prosecutorial Power, 106 J. Crim. L. & Criminology 473, 483 (2016). …Open this footnote Close

These formal and informal protections are coming under significant strain. For instance, the Department of Justice recently announced weakening changes to the Merit Systems Protection Board, which removed the Board from its role in reviewing employee termination and demotion claims, and to its interpretation of the Hatch Act, which ease restrictions on federal workers wearing Trump campaign paraphernalia at work. 19Open this footnote Close this footnote 19 Eileen Sullivan, Trump Officials Weaken Rules Insulating Government Workers from Politics, N.Y. Times (Apr. 25, 2025), https://perma.cc/‌JNM3-3CTK. …Open this footnote Close In a troubling trend, multiple federal judges appear to be inching closer toward contempt proceedings against Trump Administration officials, and potentially prosecutors, for failing to follow court orders. 20Open this footnote Close this footnote 20 See, e.g., Alan Feuer, Judge Threatens Contempt Proceedings Over Deportation Flights to El Salvador, N.Y. Times (Apr. 16, 2025), https://perma.cc/‌8S5X-TCWA; Alan Feuer & Glenn Thrush, Judges in Deportation Cases Face Evasion and Delay from Trump Administration, N.Y. Times (June 3, 2025), https://perma.cc/‌B5SG-V88A. …Open this footnote Close Department lawyers who fail to advocate “zealously” for the Administration’s positions have been suspended and fired. 21Open this footnote Close this footnote 21 Letter from Dan Goldman and Hilary J. Scholten, Members of Cong., to Pamela Bondi, Att’y Gen., and Todd Blanche, Deputy Att’y Gen. (Apr. 16, 2025), https://perma.cc/‌2ABA-9DXB. …Open this footnote Close

The strain on Department prosecutors is clearly seen in litigation surrounding the scope of President Trump’s pardon of January 6 defendants. 22Open this footnote Close this footnote 22 See Proclamation No. 10887, 90 Fed. Reg. 8331 (Jan. 29, 2025). …Open this footnote Close An important opinion on this issue was written by Judge Dabney Friedrich. In United States v. Wilson, a January 6 defendant had pleaded guilty to felony January 6 charges as well as to “separate and unrelated” firearms charges. 23Open this footnote Close this footnote 23 United States v. Wilson, No. 25-cr-545, 2025 WL 1009047, at *1 (D.D.C. Mar. 13, 2025). …Open this footnote Close After he was pardoned by President Trump, he argued that the pardon covered both convictions. The Department originally took the position that the pardon only covered the January 6 charges but later argued that the pardon also covered the separate firearms charges. 24Open this footnote Close this footnote 24 Id. at *1-2. …Open this footnote Close Judge Friedrich held that the plain language of the pardon applies only to offenses that occurred at or near the United States Capitol on January 6, and excoriated the Department for its change in position, writing:

Apart from being unreasonable, the Department’s current interpretation diverges sharply from its previous position, is being inconsistently applied, and appears to be a post hoc rationalization advanced to support its ongoing litigating positions. A change in interpretation that is not based on a well-grounded explanation does not reflect a “fair and considered judgment on the matter in question.” In such circumstances, deference is unwarranted. 25Open this footnote Close this footnote 25 Id. at *6 (citations omitted), aff’d, No. 25-3041, 2005 WL 999985, at *2 (D.C. Cir. Apr. 2, 2025) (citing the district court’s “thorough” reasoning); see also United States v. Costianes, No. 21-0458, 2025 WL 1358352, at *7 (D. Md. May 9, 2025) (tracking the reasoning in Wilson). …Open this footnote Close

This episode and others are suggestive of the increasing strain on prosecutors charged with implementing Administration directives that may improperly target opponents or reward supporters.

III. Executive Branch Attacks on January 6 Prosecutors as Evidence of Democratic Backsliding

Executive branch pressure on prosecutors with respect to the selection of targets and charges seems poised to continue. 26Open this footnote Close this footnote 26 See, e.g., Brittny Mejia, James Queally & Keri Blakinger, L.A. Federal Prosecutors Resign Over Plea Deal for Convicted Sheriff’s Deputy, Sources Say, L.A. Times (May 3, 2025, 1:06 PM PT), https://perma.cc/‌4B49-Y3GM; Devlin Barrett, Trump Recasts Mission of Justice Dept.’s Civil Rights Office, Prompting ‘Exodus,’ N.Y. Times (Apr. 28, 2025), https://perma.cc/‌N7C5-3BBA; Suzanne Monyak, Over Two-Thirds of Lawyers Leave DOJ Civil Rights Unit in Exodus, Bloomberg L. (May 5, 2025, 1:10 PM EDT), https://perma.cc/‌7W3F-KJ86; Devlin Barrett, Glenn Thrush & Adam Goldman, Under Pressure to Drop Charges, Career Prosecutors Weighed Stark Options, N.Y. Times (Feb. 14, 2025), https://perma.cc/‌JNK3-HMPF; Larry Neumeister, Alanna Durkin Richer & Eric Tucker, Order to Drop New York Mayor Adams’ Case Roils Justice Department as High-Ranking Officials Resign, Associated Press (updated Feb. 13, 2025, 8:55 PM EDT), https://perma.cc/‌AHS4-7BBH; Daniel Klaidman & Jacob Rosen, Inside the Justice Dept. “Rubber Room,” Where Veteran Lawyers do Jigsaw Puzzles and Stream Shows to Pass Time, CBS News (updated June 11, 2025, 10:56 AM EDT), https://perma.cc/‌23RV-FYEV; Erica Orden, Maureen Comey, Daughter of James Comey and Prosecutor of Jeffrey Epstein, is Fired, Politico (updated July 16, 2025, 8:23 PM EDT), https://perma.cc/‌CG9H-CDFF. …Open this footnote Close Setting aside the legality of the pardons and firings, 27Open this footnote Close this footnote 27 Separate from the legality of the pardons and firings, judges and academics alike have questioned their wisdom and propriety. See, e.g., Alan Feuer, Judges in Washington Push Back on Trump’s Reprieve of Jan. 6 Defendants, N.Y. Times (Jan. 22, 2025), https://perma.cc/‌7QBM-3CNU; Scott Ingram, Pardon Power, Justice Briefs 47 (Mar. 3, 2025) (on file with the author); Devlin Barrett, Dismissals at Justice Dept. Would Bypass Civil Service and Whistle-Blower Laws, N.Y. Times (July 15, 2025), https://perma.cc/‌5XNZ-7QD2. …Open this footnote Close it bears emphasizing that nonpolitical, career January 6 prosecutors have been subject to unusual and credible threats of investigation, litigation, demotion, firing, financial strain, and violence. 28Open this footnote Close this footnote 28 See infra notes 37-48. …Open this footnote Close It is this record sounding in law enforcement capture that sends a message to prosecutors nationwide and most worries political scientists. 29Open this footnote Close this footnote 29 See Steven Levitsky, Lucan Way & Daniel Ziblatt, How Will We Know When We Have Lost Our Democracy?, N.Y. Times (May 8, 2025), https://perma.cc/‌WNQ4-7ZE8. …Open this footnote Close

IV. The Problem of Prosecutorial Capture

To better understand the broader implications of executive branch pressure on prosecutors, it is useful to draw on political science research on democratic erosion. For instance, in How Democracies Die, political scientists Steven Levitsky and Daniel Ziblatt argue that contemporary democracies are more likely to erode gradually from within, often through legal means, rather than being overthrown by violent coups. 30Open this footnote Close this footnote 30 Levitsky & Ziblatt, supra note 1, at 5, 7. …Open this footnote Close They and others focus on the incremental weakening of democratic institutions and the erosion of long-standing political norms such as mutual toleration and institutional forbearance as critical indicators of democratic decline. 31Open this footnote Close this footnote 31 Id. at 9, 102, 212-13. …Open this footnote Close How do democratic decline and backsliding occur? Levitsky and Ziblatt emphasize the importance of “capturing the referees”—judicial, law enforcement, intelligence, and regulatory institutions designed to serve as neutral arbiters, and which can either expose government abuse or serve a would-be dictator’s aims. 32Open this footnote Close this footnote 32 Id. at 78. …Open this footnote Close In their words, “[c]apturing the referees provides the government with more than a shield. It also offers a powerful weapon, allowing the government to selectively enforce the law, punishing opponents while protecting allies.” 33Open this footnote Close this footnote 33 Id. at 78, 177-81. …Open this footnote Close

Referencing recent examples including Hungarian Prime Minister Viktor Orban’s packing of the nominally independent Prosecutorial Office, Levitsky and Ziblatt also argue that capturing the referees is often accomplished by the quiet firing and replacement of nonpartisan civil servants with loyalists or the dissolution of institutions that cannot be captured. 34Open this footnote Close this footnote 34 Id. at 79-81. …Open this footnote Close In related work, Aziz Huq and Thomas Ginsburg raise the case of potentially politically motivated dismissals of AUSAs during the administration of George W. Bush, suggesting that the web of constitutional provisions, statutes, regulations, rules, and norms separating prosecutors from executive interference discussed above amount to little more than “thin tissue of convention” to prevent “the tremendous powers of the federal prosecutorial apparatus to be swung against selective political contestants on partisan grounds.” 35Open this footnote Close this footnote 35 Aziz Huq & Tom Ginsburg, supra note 1, at 160. …Open this footnote Close

V. Retaliation Against January 6 Prosecutors

The origins of democratic backsliding in America predate January 6, stretching back decades as partisan polarization has increased. 36Open this footnote Close this footnote 36 Levitsky & Ziblatt, supra note 1, at 9. …Open this footnote Close In the January 6 context, the effort to capture law enforcement began shortly after the appointment of interim United States Attorney Ed Martin on January 20, 2025, to lead the very U.S. Attorney’s Office in D.C. that had handled the vast majority of the January 6 prosecutions. 37Open this footnote Close this footnote 37 See Edward R. Martin, Jr. Appointed U.S. Attorney for the District of Columbia, U.S. Dep’t of Just. (Jan. 27, 2025), https://perma.cc/‌R269-9LLU. …Open this footnote Close Martin made no secret of his support for the pardoned defendants, and, according to press reports, was himself present outside the Capitol on January 6. 38Open this footnote Close this footnote 38 James Pearce, Ed Martin Has Some Explaining to Do, Lawfare (Apr. 1, 2025, 11:07 AM), https://perma.cc/‌NT8G-E8NG; Alanna Durkin Richer & Michael Kunzelman, D.C.’s New Top Prosecutor Advocated for Jan. 6 Rioters and Echoed Trump’s False 2020 Election Claims, PBS News (Jan. 28, 2025, 1:35 PM EDT), https://perma.cc/‌LH9Z-TDJN. …Open this footnote Close Within a week of assuming office, Martin dissolved the section responsible for handling the January 6 prosecutions and launched an internal investigation into the Office’s use of the principal obstruction statute used in the January 6 cases. 39Open this footnote Close this footnote 39 Ryan J. Reilly, Trump’s New D.C. Prosecutor Launches Review to Examine ‘Great Failure’ of Key Charge Leveled Against Jan. 6 Defendants, NBC News (Jan. 27, 2025, 7:51 PM EDT), https://perma.cc/‌V4EH-Z7YV. …Open this footnote Close When an AUSA spoke out on cable news about the internal investigation, 40Open this footnote Close this footnote 40 ‘Wild Goose Chase,’ supra note 9. …Open this footnote Close Martin responded in a leaked office-wide email that he wanted to obtain “her records and emails” for his review of the prosecutions. 41Open this footnote Close this footnote 41 Marshall Cohen & Katelyn Polantz, Trump DOJ Appointee in DC Lashes Out After Flurry of ‘Personally Insulting’ Leaks in his First Week, CNN (Jan. 28, 2025, 3:57 PM EST) (citing a leaked January 27 email from the former Interim United States Attorney for the District of Columbia Ed Martin referencing a former January 6 prosecutor who criticized Martin’s initiation of an investigation into prosecutors’ use of a key obstruction statute in January 6 cases), https://perma.cc/‌VNL3-8FLA; Suzanne Monyak, Acting DC US Attorney Calls Jan. 6 Case Review Leak ‘Insulting’, Bloomberg L. (Jan. 28, 2025, 1:32 PM EST), https://perma.cc/S2DH-G5CG. …Open this footnote Close January 6 prosecutors have been sued civilly, 42Open this footnote Close this footnote 42 See, e.g., Jenna Ryan Lawsuit Against DOJ & Prosecutor Karen Rochlin, Jenna Ryan (Mar. 20, 2025), https://perma.cc/‌BTA5-A6KW. …Open this footnote Close and lawyers for the now-pardoned defendants appear to be preparing global suits. 43Open this footnote Close this footnote 43 See Alan Feuer, Lawyers Plan to Sue Federal Government on Behalf of Jan. 6 Rioters, N.Y. Times (Mar. 7, 2025), https://perma.cc/‌VD2T-R2XM; Will Carless & Sudiksha Kochi, Freed by Trump, Proud Boys and Oath Keepers Plan to Sue DOJ, USA Today (Feb. 21, 2025, 6:17 PM EDT), https://perma.cc/‌P8V8-ZAYL. …Open this footnote Close

In the days after President Trump’s second inauguration, supervisory and line January 6 attorneys were also fired or demoted. On January 31, a group of approximately fifteen probationary January 6 attorneys were fired due to their work on the cases. 44Open this footnote Close this footnote 44 Roger Parloff, Trump’s Petty Purge of 15 Young Jan. 6 Prosecutors, Lawfare (Feb. 5, 2025, 9:00 AM), https://perma.cc/‌Q4JT-UC6N. …Open this footnote Close Their termination letters cited President Trump’s characterization of the January 6 prosecution as having involved “a grave national injustice” and indicated that their hiring had “hindered” Martin in “faithfully implement[ing]” the President’s agenda. 45Open this footnote Close this footnote 45 Id. …Open this footnote Close Within weeks, the sitting Chief of the Criminal Division in the D.C. U.S. Attorney’s Office during the pendency of the January 6 cases resigned after refusing to order a freeze of bank assets in a non-January 6 case. 46Open this footnote Close this footnote 46 Eileen Sullivan, Glenn Thrush & Adam Goldman, Prosecutor in U.S. Attorney’s Office in Washington Abruptly Resigns, N.Y. Times (updated Feb. 18, 2025), https://perma.cc/‌FA34-45K2. …Open this footnote Close Soon afterwards, the Chief of the Capitol Siege Section, along with the Chiefs of the Fraud, Public Corruption, and Federal Major Crimes sections were also demoted, among others. 47Open this footnote Close this footnote 47 Spencer S. Hsu, Seven Top D.C. Prosecutors Demoted in Purge by Trump U.S. Attorney-Led Purge, Wash. Post (updated Feb. 28, 2025), https://perma.cc/‌6NVB-RLXN. …Open this footnote Close Prosecutors in other offices also appear to have faced suspension and/or termination for speech critical of the Administration. 48Open this footnote Close this footnote 48 See Devlin Barrett & Maggie Haberman, White House Takes Highly Unusual Step of Directly Firing Line Prosecutors, N.Y. Times (Mar. 30, 2025), https://perma.cc/‌AUW4-7GUU; Sarah N. Lynch, New US Justice Department Policy Cracks Down on Social Media Posts, Reuters (Apr. 25, 2025, 3:19 PM EDT), https://perma.cc/‌Z8KC-HKJK; Perry Stein, Firings Without Explanation Create Culture of Fear at Justice Dept., FBI, Wash. Post (July 10, 2025), https://perma.cc/‌XT8X-HCPN. …Open this footnote Close

While Martin’s nomination to serve as U.S. Attorney was ultimately withdrawn in the face of Republican opposition, it seems that attacks on January 6 prosecutors will continue. Martin was reassigned to serve as Pardon Attorney and Director of the “Weaponization Working Group of the Department of Justice,” 49Open this footnote Close this footnote 49 Pardon Attorney Edward R. Martin Jr., U.S. Dep’t of Just. (updated May 30, 2025), https://perma.cc/‌KA3X-ULXW. …Open this footnote Close which was charged with examining “[t]he pursuit of improper investigative tactics and unethical prosecutions relating to events at or near the United States Capitol on January 6, 2021.” 50Open this footnote Close this footnote 50 Memorandum from Pamela J. Bondi, Att’y Gen., to Dep’t Emps. on Restoring the Integrity and Credibility of the Department of Justice (Feb. 5, 2025), https://perma.cc/‌A73G-92HS. …Open this footnote Close Jared Wise, a pardoned January 6 defendant, was installed as one of Martin’s counselors at the Department. 51Open this footnote Close this footnote 51 Alan Feuer & Adam Goldman, Pardoned Jan. 6 Rioter Who Threatened Police Joins Justice Department, N.Y. Times (July 1, 2025), https://perma.cc/‌MD8L-KS2G. …Open this footnote Close In a substantial escalation, three additional senior January 6 prosecutors outside of any probationary window were fired in late June, raising the prospect of more firings to come. 52Open this footnote Close this footnote 52 Ryan J. Reilly, Pam Bondi Fires Three Jan. 6 Prosecutors, Sending Another Chill Through DOJ Workforce, NBC News (updated June 27, 2025, 9:22 PM EDT), https://perma.cc/‌L7X5-QYTX. A longtime non-prosecutor and public affairs specialist at the United States Attorney’s Office for the District of Columbia was also fired. Scott MacFarlane, Fired Justice Department Official Warns We Are “Driving Straight into an Abyss,” CBS News (July 10, 2025, 7:46 PM EDT), https://perma.cc/‌R58W-W4XC. …Open this footnote Close

In a climate driven by successive terminations of federal lawyers, January 6 prosecutors have faced difficulty finding employment or legal representation. 53Open this footnote Close this footnote 53 See, e.g., Tatyana Monnay, Trump’s Exiting Government Lawyers Swamp DC Firms with Resumes, Bloomberg L. (Feb. 18, 2025, 5:00 AM EST), https://perma.cc/‌R7E3-S2TX; see also Justice Connection Legal Network, https://perma.cc/‌3AZ7-S4EC (archived July 16, 2025) (describing the difficulty and cost of finding qualified legal representation for Department employees in the current environment as an impetus to create the Network). …Open this footnote Close With the naming of individual former prosecutors in Executive Orders targeting law firms, those who have found employment worry about retaliation against their new employers. 54Open this footnote Close this footnote 54 See Exec. Order No. 14,250, 90 Fed. Reg. 14549 (Apr. 3, 2025). …Open this footnote Close

The pardons and firings were also accompanied by a resurgence of threatening speech directed against January 6 prosecutors and concerns about increased political violence. 55Open this footnote Close this footnote 55 See, e.g., Tom Dreisbach, FBI Agents, Prosecutors Fear Retribution from Jan. 6 Rioters Pardoned by Trump, NPR (Feb. 6, 2025, 5:00 AM ET); https://perma.cc/‌5JSX-BAQ5; Alan Feuer & Adam Goldman, Pardoned by Trump, Jan. 6 Defendants Assail Those Who Worked on Their Cases, N.Y. Times (Feb. 11, 2025), https://perma.cc/‌9ZWS-38P7. …Open this footnote Close According to Proud Boys leader Enrique Tarrio, who was sentenced to twenty-two years for his conduct on January 6, “[s]uccess is going to be retribution.” 56Open this footnote Close this footnote 56 Alan Feuer, Far-Right Leaders Granted Clemency by Trump Express Desire for Retribution, N.Y. Times (Jan. 22, 2025), https://perma.cc/‌XGF8-GSUQ. …Open this footnote Close As noted in a recent Senate hearing, January 6 defendants recently joined forces to compile and publicize a list disclosing names (and sometimes photos) of at least 124 January 6 prosecutors, agents, and judges on social media in a series of posts that has been viewed more than 60,000 times. 57Open this footnote Close this footnote 57 Durbin Delivers Opening Statement During Spotlight Hearing on the Trump Administration’s Attempts to Whitewash January 6, U.S. Senate Judiciary Comm. (Apr. 30, 2025), https://perma.cc/‌ZW6M-HCMG. …Open this footnote Close

While changes in administration often precipitate changes in enforcement priorities, which can entail removal or reassignment of personnel in the ordinary course, the firings, demotions, investigation, litigation, employment challenges, doxxing, and threats endured by January 6 prosecutors have been anything but normal. This pattern of retaliation violates longstanding norms of prosecutorial independence and chills dissent within the Department.

VI. Resisting Prosecutorial Capture: The Road Ahead

These attacks and others send a message to federal prosecutors nationwide that they resist Administration directives at their peril. According to the National Association of Assistant U.S. Attorneys, the firings “will make it far more difficult for DOJ to recruit and retain qualified attorneys, inhibit employees from executing their constitutional duties out of fear of reprisal, and will ultimately make our society less fair, safe, and secure.” 58Open this footnote Close this footnote 58 Patrick Marley, Jeremy Roebuck & Yvonne Wingett Sanchez, Trump’s DOJ has Fired Dozens of Prosecutors, Upending Decades-Old Norm, Wash. Post (July 19, 2025), https://perma.cc/‌3ALK-RRGG. …Open this footnote Close As one recently fired federal prosecutor put it in a departing email to colleagues, “[i]f a career prosecutor can be fired without reason, fear may seep into the decisions of those who remain.” 59Open this footnote Close this footnote 59 Hayley Miller, Read Epstein Prosecutor Maurene Comey’s Letter to Colleagues After DOJ Firing, MSNBC (July 17, 2025, 12:45 PM EDT), https://perma.cc/‌RW89-F7ZY. …Open this footnote Close The attacks also inhibit coordination among prosecutors who may reasonably be concerned about the security of their jobs in the face of executive overreach. 60Open this footnote Close this footnote 60 See Maggie Haberman, Glenn Thrush & Charlie Savage, Trump Names Jeanine Pirro as Interim U.S. Attorney in Washington, N.Y. Times (May 8. 2025), https://perma.cc/‌KY25-75EL (naming Ed Martin the director of the “Weaponization Working Group”); Glenn Thrush & Alan Feuer, If Justice Dept. Can’t Prosecute Trump’s Foes, It Will ‘Shame’ Them, Official Says, N.Y. Times (May 21, 2025), https://perma.cc/‌4AHX-JYHH. …Open this footnote Close Nonpartisan legal institutions such as the ABA, law schools, and organizations representing the interests of prosecutors have an important role to play in supporting federal prosecutors as they resist capture and in charting a path to rebuilding the Department. 61Open this footnote Close this footnote 61 See, e.g., Mark Alexander et. al., Beyond Imagination: The January 6 Insurrection (2021). …Open this footnote Close

First, these and other institutions should conduct significant research to better understand prosecutors’ day-to-day experience across the Department of Justice at this extraordinary time. They should track and publicize changes in workforce, including terminations, demotions, and voluntary resignations, and cases brought across Department of Justice components. They should review internal guidance memos, including Attorney General Pamela Bondi’s February 5, 2025 Memorandum Regarding Zealous Advocacy on Behalf of the United States and the Department’s revised social media policy, for legal infirmities and/or evidence of selective enforcement. 62Open this footnote Close this footnote 62 E.g., Memorandum from Pamela J. Bondi, Att’y Gen., to Dep’t Just. Emps. on General Policy Regarding Zealous Advocacy on Behalf of the United States (Feb. 5, 2025), https://perma.cc/‌J2DE-K2CF; U.S. Dep’t of Just., Just. Manual § 1-9.000 (2025); Lynch, supra note 48. …Open this footnote Close And they should conduct confidential interviews of former prosecutors to better understand if and how their approaches to investigating and charging cases have changed. Such interviews would offer valuable perspective into the day-to-day realities of how federal prosecutors approach their work and the extent to which, if at all, they feel improperly constrained in their investigative and charging decisions.

Second, these institutions should raise awareness of the dangers of prosecutorial capture from the perspective of democratic erosion and celebrate successful examples of resistance. In law schools, professors can reinforce the distinction between recent attacks on January 6 prosecutors and routine changes in enforcement priorities. They could also leverage the insights of social scientists studying democratic erosion to explain why coordination among career prosecutors in the face of capture is important. Working with international organizations and learning from ongoing efforts by prosecutors and judges to resist capture in other countries may be particularly helpful in benchmarking the American experience vis-à-vis other countries. 63Open this footnote Close this footnote 63 See, e.g., Marcin Mrowicki, All Rise: Judicial Resistance in Poland (2024), https://perma.cc/‌DJ9J-CYV8; Diego A. Zambrano, Ludmilla M. Silva, Rolando G. Miron & Santiago P. Rodríguez, How Latin America’s Judges Are Defending Democracy, J. Dem., Jan. 2024, at 118; Jack Nicas, Two Capitol Riots. Two Very Different Results, N.Y. Times (Jan. 8, 2024), https://perma.cc/‌56GJ-CH8Q; Thomas Carothers & McKenzie Carrier, Democratic Recovery After Significant Backsliding: Emergent Lessons (2025), https://perma.cc/‌R5W6-J4F5 (detailing the paths to democratic recovery in Poland, Brazil, Zambia, and Senegal). …Open this footnote Close

Legal institutions may also decide to expend resources to facilitate coordination among prosecutors at all levels through conferences and other meetings. Such conferences would be useful in aligning on definitions and measurement of prosecutorial capture, building the coordinating capacity of organizations representing prosecutors, and publicizing appropriate internal and external mechanisms prosecutors can use to signal potential politicization of their work. They can also spur discussion of the extent to which internal guidance such as the Principles of Federal Prosecution require modification to account for the possibility of capture or the extent to which new model policies should be promulgated.

This work is underway. But more will be needed to assess the damage done and put the Department on the road to recovery.

*Clinical Lecturer in Law, Associate Research Scholar, and Peter Gruber Rule of Law Fellow, Yale Law School. I thank Larry Diamond, Terry Moe, Jack Rakove, Daniel Richman, Kate Stith, and participants at the Stanford Neukom Center for the Rule of Law’s, Stanford Law Review’s, and Deborah L. Rhode Center on the Legal Profession’s 100 Days of Trump II: Constitutional Boundaries on Executive Power and the Rule of Law Symposium for helpful conversations and comments. I also thank Georgetown Law School’s Visiting Researcher Program. I thank Zoey Ryu and the editorial staff of the Stanford Law Review Online for editing assistance and Lauren Saxe for research assistance. Any errors are my own.