DOJ Neglects Special Duty By Pushing Edge Cases Because It Can

In the past year, several high-profile federal investigations and prosecutions under Attorney General Pam Bondi’s Justice Department have dissolved as soon as they came under basic scrutiny. Those failures reportedly contributed to her removal.

Consider a few examples.

In September 2025, President Donald Trump publicly urged Bondi to prosecute former FBI director James Comey, a longtime target of his criticism, for making false statements to Congress and obstructing a congressional investigation, and the DOJ obliged. The case didn’t last. A court dismissed it because the DOJ unlawfully appointed the US attorney who brought the case. The fact that the attorney had an insurance litigation background and minimal federal criminal experience suggests her value was a willingness to proceed where others would not.

Around the same time, New York Attorney General Letitia James, who had brought civil cases against Trump, was charged with bank fraud and making false statements. That case was dismissed on similar grounds.

Frustration with Federal Reserve policy led Trump to say that Jerome Powell should be removed and that he would fire him. Federal prosecutors explored a case against him, but a judge shut it down early last month. Another dispute involving Federal Reserve Governor Lisa Cook is still working its way through the courts.

These cases, along with more recent prosecutions and investigations—including the prosecution of the Southern Poverty Law Center, the reindictment of James Comey, and the lingering prospect that Jerome Powell could again face criminal scrutiny—have led many to ask how prosecutors could bring claims that seem so weak or so overtly political. That question has only taken on new urgency with Bondi’s exit and the appointment of Todd Blanche as acting attorney general. The Trump ally is expected to pursue these kinds of cases more effectively.

As a law professor who teaches criminal law and legal ethics, I often hear a version of the same question from students and non-lawyer friends: “How could anyone prosecute that case?”

Commentators often note political motivations, but those explanations are incomplete. The confusion underlying that question points to a deeper feature of lawyering which extends beyond any particular administration and is easy to miss when the focus stays on politics.

At its core, legal training teaches lawyers to take a set of facts and construct a legally plausible argument, even when the underlying claim may be weak. Beginning in law school, students are given hypotheticals—sometimes far-fetched—and asked to frame legal claims in ways that make a weak position seem plausible. Over time, this becomes a professional habit.

The ability to stretch an argument serves an important function in the adversarial system. It ensures that competing positions are tested and that even unpopular views can be heard. But as I note in my recent book on lawyers and inequality, that elasticity has a less comfortable implication: It can stretch the boundaries of what prosecutors pursue, even when the case itself is thin.

That dynamic looks different in criminal law than in civil disputes. In private litigation, each side is expected to press its position as far as the law allows. Criminal prosecution is supposed to work differently. Prosecutors are often described as ministers of “justice.” This reflects the idea that the government’s power to charge and punish should be exercised with restraint and with an emphasis on accuracy rather than winning.

But the habits lawyers develop don’t switch off when they enter government. The same training that helps them build arguments also shapes what they see as a plausible case. Over time, that can expand the range of cases that feel reasonable to bring, even when the evidence is weak.

Prosecutors are, of course, trained to distinguish between what can be argued and what should be pursued. In practice, that line is not always easy to hold. Prosecutors don’t need airtight facts to bring a case. They need a legal theory, some supporting evidence, and some confidence that they can meet the probable cause burden where a court will allow the case to proceed.

Once that threshold is met, the legal process takes on a significance of its own. Investigations and prosecutions can impose all kinds of costs on a defendant—financial, emotional, and reputational—irrespective of how the case ultimately turns out.

Prosecutors are often discussed at the individual level, but their power derives from the institution. When one lawyer declines to pursue a case on the basis that the evidence doesn’t seem to meet the burden, another prosecutor may see it differently and be willing to test the limits.

Of course, individual resistance matters, as in the cases where prosecutors in both Trump terms were reassigned, stepped down, or were fired rather than having to push forward a case they didn’t believe served justice. Still, it doesn’t eliminate the underlying dynamic. As long as a case can be framed in legal terms and meets the minimal burden required by the grand jury, often someone within the system can be found to carry it forward.

The replacement of Bondi with Blanche, whatever its duration, may be best understood in this light: A change in personnel that could raise the temperature around these cases, without disrupting the lawyering carousel that allows someone new to press the same claims. The baton rarely stays on the ground for long.

And this is to say nothing of the less visible parts of the system. Every day, prosecutors across the country bring charges that raise similar questions about the strength of the case and basic fairness. The system allows government lawyers to turn contested facts into legal claims in ways that can produce real inequality.

This is especially true in the more common criminal prosecutions where defendants are not high-profile targets. They are not like Comey, James, Powell, or Cook—all of whom are well-connected, white-collar professionals with advanced degrees and the resources to defend themselves in court. In everyday cases, judges and jurors often aren’t viewing these low-profile defendants with the same skepticism brought to overtly political cases, making weak cases more likely to succeed. The media and the public aren’t closely scrutinizing these cases, but they reflect the same dynamic.

Bondi’s removal, the high-profile prosecutions under her watch, and those likely to follow all point to something deeper about American lawyering and inequality. The same habits of argument that allow lawyers to build cases can also shape outcomes for a much broader group of defendants. That tension, which exists alongside the special duty of prosecutors, is not going away. A system designed to generate legal arguments will inevitably have to contend with the consequences of the claims it enables.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law, Bloomberg Tax, and Bloomberg Government, or its owners.

Author Information

Shaun Ossei-Owusu is a professor at the University of Pennsylvania Carey Law School and the author of “Law on Trial: An Unlikely Insider Reckons with Our Legal System.”

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