A firebrand legal adviser to the president-elect and a conservative lawyer under consideration for the post of attorney general appear to be setting the stage for investigations and prosecutions of Donald Trump’s legal adversaries, including special counsel Jack Smith and New York Attorney General Letitia James.
The threats come as Trump campaign aides say that the president-elect considers his choice for attorney general to be his most important single appointment.
Over the last several days, Mike Davis, an outspoken conservative lawyer who is advising the Trump transition on Justice Department issues, has said in interviews that Smith belongs in prison and that James could be prosecuted.
“I dare you to try to continue your lawfare against President Trump in his second term,” Davis, a Republican lawyer who often uses provocative language, said during an appearance on the podcast of pro-Trump influencer Benny Johnson.
“Listen here, sweetheart,” Davis continued, addressing James. “We’re not messing around this time, and we will put your fat ass in prison for conspiracy against rights. I promise you that.”
Davis spoke after James, who won a $355 million civil verdict against Trump’s companies, held a news conference and said her office is prepared to “fight back” against policy and regulatory threats from the Trump administration.
Davis posted on X that Smith should “lawyer up,” and said in an appearance on Newsmax that Smith “should go to prison for engaging in a criminal conspiracy against President Trump.”
A spokesman for Smith declined to comment.
In an interview, Davis said he made the comments because “I wanted to send a very powerful political message. The American people delivered their verdict on Tuesday and this lawfare must end.”
Davis later posted that he does not speak for Trump and is not seeking a position in the new administration.
Attorney general candidate
One of the people NBC News has learned Trump is considering for the job of attorney general — Mark Paoletta — reposted on X an article he wrote over the summer contending that Trump can and should tell the Justice Department whom to investigate.
Arguing against a 50-year-old post-Watergate norm that presidents should guide DOJ policy but play no role in individual criminal investigations, Paoletta said the president has the legal authority to order his attorney general to investigate specific individuals.
The “Constitution vests our ELECTED President with ALL executive power, including DOJ,” Paoletta wrote on X, with a link to an article he wrote on the subject in July. “He has the duty to supervise DOJ, including, if necessary, on specific cases. Our system does not permit an unaccountable agency.”
Paoletta did not respond to a request for comment.
Paoletta is among several people under consideration to run the Justice Department, people familiar with the matter tell NBC News. Others include Missouri Sen. Eric Schmitt and Utah Sen. Mike Lee; John Ratcliffe, who was director of national intelligence in the first Trump term; and Matt Whitaker, who was acting attorney general under Trump.
All of those people have claimed — without citing any specific evidence — that the federal prosecutions of Trump by Smith were politically motivated.
On Friday, a judge granted Smith’s request to cancel all scheduled hearings in the D.C. case against Trump. Earlier this week, DOJ officials said they have been evaluating how to wind down Smith’s two federal criminal cases against Trump before he takes office to comply with long-standing department policy that a sitting president can’t be prosecuted. On Friday, the judge granted Smith’s request to pause all hearings in the case until Dec. 2.
A person familiar with the thinking on Smith’s team — who spoke on condition of anonymity to recount sensitive conversations — said they are confident their work can withstand legal scrutiny but are anxious about the expense and stress that often comes with being the target of a federal investigation.
Davis also has a long history of making provocation statements designed to outrage liberals.
The Supreme Court’s immunity ruling this spring made clear that orders given by the president to the Justice Department are immune from criminal scrutiny.
The Justice Department is not the last word in the criminal system. Even if federal prosecutors target an individual at Trump’s request, a judge can dismiss the case, citing a lack of evidence. Juries could also decline to convict the defendant.
Career civil servants in the DOJ, who work for Republican and Democratic presidents and pledge to be nonpartisan, could also decline to prosecute a case, citing a lack of merit. Trump allies have argued that such prosecutors should be fired.
Career DOJ workers brace for second Trump term
Current and former Justice Department officials tell NBC News that many career public servants inside the DOJ, fearful about what they might be ordered to do by Trump or his appointees, are contemplating whether to leave.
“I think there will be a flood to the exits,” one former senior DOJ official said.
But two current DOJ officials said many department lawyers are determined to remain, plow ahead and do their work.
In Trump’s first term, a special counsel appointed by Attorney General Bill Barr, John Durham, spent years scrutinizing the actions of the CIA and FBI in connection with Russia’s 2016 election interference efforts, only to net a single guilty plea from an FBI lawyer who lied on a document. Many of those interviewed had to spend thousands of dollars on legal fees.
The Trump Justice Department will have access to every text, email and memo written by everyone on the Smith team on government phones and computers during the investigation.
“Jack Smith certainly should go to hell,” Davis said on Newsmax.
