How the Trump Administration Might Investigate Former Administrations

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President Donald Trump has ordered federal reviews of what the previous administration did. A January 20, 2025 executive order told the attorney general to examine 4 years of federal enforcement, and a later memorandum ordered an investigation into whether others improperly exercised former President Joe Biden’s authority.

Ordering a review is not the same as charging anyone with a crime. Prosecutors decide whether to bring a charge, a grand jury indicts only if it finds probable cause, and a conviction requires proof beyond a reasonable doubt. A former president has a further shield: the Supreme Court ruled in 2024 that a president’s core constitutional powers cannot be prosecuted and that other official acts are presumed immune. That ruling protects presidents, not everyone who worked for them.

An order to review is not a criminal charge

Trump’s January 20, 2025 executive order, Ending the Weaponization of the Federal Government, directed the attorney general to review federal enforcement activities over the preceding 4 years. The order alleged that the prior administration had used law-enforcement and intelligence agencies against perceived political opponents instead of pursuing legitimate governmental objectives. The administration’s case for the review is that misuse of enforcement power deserves scrutiny even when it was carried out by the government itself.

The order told the attorney general to prepare a report to the president recommending remedial action and told the director of national intelligence to review intelligence-community activities. A review like that can end in proposed changes to how agencies work as well as questions about individuals. The order’s description of wrongdoing is an allegation, not a finding of guilt.

An attorney general’s memorandum dated February 5, 2025, Restoring the Integrity and Credibility of the Department of Justice, directed a department group called the Weaponization Working Group to examine prior enforcement activities and provide quarterly progress reports to the White House. The attorney general formed the group, led by the attorney general’s office and supported by the deputy attorney general’s office, Office of Legal Policy, Civil Rights Division, the U.S. Attorney’s Office for the District of Columbia and other personnel as needed. Among its stated subjects were special counsel Jack Smith’s investigations of Trump and federal cooperation with the Manhattan district attorney and the New York attorney general in their cases against him, all of which the memorandum characterized as improper uses of government power. A special counsel is an outside prosecutor appointed by the attorney general.

Trump’s June 4, 2025 memorandum, Reviewing Certain Presidential Actions, directed White House counsel, in consultation with the attorney general, to investigate whether individuals conspired to deceive the public about Biden’s mental state and unconstitutionally exercised presidential authority. Biden denied that others had made his presidential decisions, saying in a statement reported by ABC News that he had decided on pardons, executive orders, legislation and proclamations. The directive itself does not establish that any presidential action was invalid.

CBS News, citing a person briefed on the matter, reported that federal prosecutors in Washington had closed a criminal inquiry into whether Biden and his aides unlawfully used an autopen, a machine that signs documents, to issue pardons. CBS marked the report as updated on March 5, 2026, but said it had not determined precisely when the case ended. A CNN report published March 5, 2026 said a senior Justice Department official described the investigation of people around Biden as continuing and said Biden himself was not under investigation. The two accounts differ, and they do not establish a final outcome for the investigation Trump ordered.

The Associated Press reported on September 28, 2026 that a Justice Department inquiry is also looking at the earlier investigations of Trump, with investigators demanding testimony from officials involved in them while examining allegations of a conspiracy against him. Demanding testimony is evidence-gathering, an earlier stage than an indictment or a conviction. It is not proof that a conspiracy occurred.

The Justice Department turns allegations into cases

Federal law puts Justice Department functions in the attorney general’s hands, with specified exceptions. The Federal Bureau of Investigation (FBI) is the department’s principal investigative arm, gathering facts, locating witnesses and compiling evidence in cases involving federal jurisdiction. U.S. attorneys ordinarily prosecute offenses against the United States within their districts, except where the law provides otherwise. Investigators gather the facts; prosecutors decide whether those facts support a charge.

The Justice Manual, the Justice Department’s prosecution-policy guide, treats probable cause as an absolute minimum for initiating a federal prosecution. Probable cause means facts that give a reasonable person grounds to believe a crime has been committed. The manual says a prosecutor should bring a federal case if the prosecutor believes the conduct is a federal offense and the admissible evidence will probably be sufficient to obtain and sustain a conviction. The exceptions are when the prosecution would serve no substantial federal interest, the person can be effectively prosecuted elsewhere, or an adequate noncriminal alternative exists. An allegation may justify asking further questions without yet supplying the evidence needed to convict, and evidence gathered during an investigation may be unusable at trial.

A federal grand jury examines whether there is probable cause to put a person on trial and can issue an indictment when it finds sufficient evidence. A defendant remains presumed innocent, and the prosecution must prove every element of the charged crime beyond a reasonable doubt to secure a conviction. An indictment turns the government’s accusation into a court case, with the accusation still unproved.

For federal offenses that are not punishable by death, the general limitations statute usually requires an indictment or formal charging document within 5 years after the offense, unless another law expressly provides otherwise. For an investigation reaching back into a previous administration, the relevant clock is tied to the offense and its governing law, not simply to the date the new president took office.

Presidential immunity changes what can be prosecuted

In its July 1, 2024 decision in Trump v. United States, the Supreme Court recognized absolute immunity for a president’s core constitutional powers, at least presumptive immunity for other official acts, and no immunity for unofficial acts. Each act has to be sorted into one of those categories, so an investigation cannot treat an entire presidency as a single block of conduct.

The Supreme Court held Trump absolutely immune from prosecution for the alleged conduct involving his discussions with Justice Department officials. For a successor investigating how an earlier president directed federal law enforcement, that protection can reach the very decisions the successor wants to scrutinize.

To overcome presumptive immunity for other official acts, prosecutors must show that applying criminal law would pose no danger of intrusion on executive-branch authority and functions. Courts may not label presidential conduct unofficial simply because it allegedly violates a generally applicable law or because of the president’s motives.

The ruling also bars testimony or private records of a president or his advisers that probe protected conduct from being admitted as evidence at trial. So even a charge based on unofficial conduct can face an evidence problem. The same decision rejected Trump’s argument that impeachment and Senate conviction must come before a former president’s criminal prosecution.

The president’s immunity framework should not be read as a finding that everyone who worked in an administration is beyond prosecution. A former FBI attorney, for example, was charged on August 19, 2020 with making a false statement and pleaded guilty the same day. He was sentenced to 12 months’ probation on January 29, 2021, according to the report of special counsel John Durham, who examined investigations arising out of the 2016 presidential campaigns. A case against an administration employee still has to prove that employee’s own offense.

Congress and watchdogs have different powers

Congressional investigations must serve a legislative purpose, and Congress cannot use its inquiry power simply to expose private affairs unrelated to legislation or to supplant executive and judicial functions. Congress is not a criminal-trial or law-enforcement agency, as the Congressional Research Service explains in its Congressional Oversight Manual. A hearing can help lawmakers decide whether laws or oversight arrangements need changing, while the criminal question remains with prosecutors and courts.

Agency inspectors general conduct audits and investigations of agency programs and operations and review legislation and regulations for efficiency and the prevention of fraud and abuse. They must promptly report to the attorney general when they have reasonable grounds to believe federal criminal law was violated.

A special counsel, by contrast, is a prosecutor. The attorney general appoints a special counsel when a criminal investigation is warranted, handling by the department’s own prosecutors would present a conflict of interest or other extraordinary circumstances, and an outside appointment would serve the public interest.

Under the special-counsel regulations, the attorney general does not supervise the daily work. The attorney general may still block a step found so inappropriate or unwarranted under established department practices that it should not proceed, but must give great weight to the special counsel’s views and notify Congress. At the conclusion of the work, the special counsel supplies a confidential report to the attorney general explaining decisions to prosecute or decline prosecution. A special counsel works at a distance from the department’s ordinary management but still answers to the attorney general, inside the executive branch.

Records, witnesses and privilege shape the evidence

A federal criminal subpoena can require designated books, papers, documents, data or other objects, and a court can cancel or change it if compliance would be unreasonable or oppressive. The Fourth Amendment requires a search warrant to rest on probable cause, supported by oath or affirmation, and to describe particularly the place to be searched and the persons or things to be seized. A subpoena demands information and a warrant authorizes a search. Neither lets investigators collect something merely because a president wants it.

The Fifth Amendment protects against compelled self-incrimination. Federal grand-jury rules generally prohibit specified participants, including grand jurors and government attorneys, from disclosing matters occurring before the grand jury, subject to the rules’ exceptions. Because of that secrecy, the lack of a public account of the evidence does not prove that investigators have established or disproved an allegation.

Under United States v. Nixon, executive privilege, a president’s claim to keep his communications confidential, must yield to a demonstrated, specific need for evidence in a pending criminal trial when the claim rests only on a general interest in confidentiality. Privilege and immunity answer different questions: privilege concerns access to presidential communications, while immunity can prevent prosecution of protected conduct. The Nixon rule concerns criminal trials and should not be treated as resolving every congressional demand or every national-security claim.

Under the Presidential Records Act, presidential records must be made available under a subpoena or other court-issued process for a civil or criminal investigation, subject to applicable rights, defenses and privileges. A Justice Department legal opinion dated April 1, 2026, Constitutionality of the Presidential Records Act, argued that the act exceeds Congress’s powers and violates executive independence. On May 20, 2026, a federal district court granted a preliminary injunction sought by the Freedom of the Press Foundation and other plaintiffs. It ordered the Executive Office of the President, the White House Office, the Office of the Vice President and the president’s chief of staff to comply with the act and preserve presidential and vice presidential records. A June 30, 2026 order paused the remaining proceedings in the district court until the appeal, including any Supreme Court review, is over, but the pause does not cover the injunction or disputes over complying with it.

Groups defending the injunction filed a brief on August 19, 2026 asking the federal appeals court in Washington to affirm it. The injunction is a temporary protection during litigation, rather than a final constitutional ruling.

Accountability depends on evidence and safeguards

Justice Department charging policy forbids a prosecutor from being influenced by a person’s political association, activities or beliefs. A defendant alleging selective prosecution generally needs clear evidence of discriminatory purpose and effect, including that similarly situated people were not prosecuted. A written safeguard does not establish that every decision complies with it.

The American Civil Liberties Union argues that an abusive investigation can damage a person’s reputation and livelihood or an organization’s finances even when the target eventually wins in court. The organization proposes defending people against abusive prosecutions and bringing lawsuits over unlawful privacy intrusions, discrimination and retaliation against dissent.

Durham’s report dated May 12, 2023 concluded that the Justice Department and FBI had failed to uphold their mission of fidelity to the law in certain events related to the investigation of the 2016 presidential campaign. The report also recorded an acquittal: a grand jury found probable cause to believe a man had lied to the FBI and charged him with making a false statement, but a jury acquitted him after a two-week trial. Serious criticism of an institution does not turn every criticized action into a crime that a jury finds proved.

The Justice Department confirmed on February 8, 2024 that special counsel Robert Hur had concluded his investigation of Biden’s handling of classified documents. Hur’s report said FBI agents had recovered marked classified documents from Biden’s home in Wilmington, Delaware, but it declined prosecution, concluding that the evidence did not establish Biden’s guilt beyond a reasonable doubt and that the department’s aggravating and mitigating factors also weighed against prosecution.

When the next investigation is announced, look for the specific legal allegation and then distinguish the evidence gathered from the evidence that can lawfully be used. An inquiry can expose a need for institutional repair even when no conviction follows, while a criminal case must still be proved beyond a reasonable doubt.