From FISA to Prosecutions: How Progressive Legal Tactics Set the Precedent the Trump DOJ Is Now Using

At 5:07 p.m. on October 21, 2016, a sealed application landed on the desk of the Foreign Intelligence Surveillance Court. It sought permission to monitor a U.S. citizen tied—loosely, as it turned out—to a presidential campaign. Four years later, that same chain of decisions would echo through federal courtrooms, congressional hearings, and a Justice Department increasingly comfortable with aggressive legal theory. The targets changed. The tactics didn’t.

The FISA Warrant That Changed the Rules

The Carter Page FISA warrant wasn’t the first time the government pushed the boundaries of national security surveillance. But it was the first to collide so directly with domestic politics at the highest level. Inspector General Michael Horowitz’s December 2019 report found 17 significant errors and omissions in the FBI’s applications, including the failure to disclose exculpatory statements Page had made to the CIA.

Horowitz didn’t find political bias sufficient to explain the failures. That distinction mattered—especially to progressives who argued the problem lay in process, not intent. Yet the precedent was set: legal shortcuts justified by the gravity of the threat, with internal safeguards treated as flexible rather than sacrosanct.

Civil liberties advocates saw something else. Jameel Jaffer, then director of the Knight First Amendment Institute at Columbia University, warned in 2020 that “once surveillance tools built for foreign threats become normalized for domestic use, they rarely snap back.”

That warning now reads less like rhetoric and more like a forecast.

Lawfare Becomes a Movement, Not a Slur

The term “lawfare” used to live on the fringes—an accusation lobbed by conservatives to suggest politicized prosecutions. By the late 2010s, it had gone mainstream. Progressive legal groups began embracing a more muscular theory: that the law, aggressively applied, could correct systemic abuses that politics could not.

Consider the data. Between 2017 and 2020, progressive-aligned nonprofits filed over 400 lawsuits against the Trump administration, according to a Harvard Law Review tally. They challenged everything from immigration rules to environmental rollbacks. Courts blocked or delayed administration actions at a historic rate—roughly 64% of major policies faced injunctions, far higher than under Obama or Bush.

From one perspective, this was constitutional accountability in action. From another, it was a proof of concept: saturate the system with legal pressure and force outcomes through attrition.

Republican attorneys watched closely. So did future DOJ officials.

The Durham Probe and the Normalization of Retaliatory Investigations

When Attorney General William Barr appointed John Durham in May 2019 to investigate the origins of the Russia probe, progressives cried foul. The investigation, they argued, weaponized the DOJ against political opponents. Yet Durham relied on the same expansive theories of materiality and intent that progressives had defended in other contexts.

Durham ultimately secured one guilty plea (Kevin Clinesmith, an FBI lawyer who altered an email related to the Carter Page warrant) and two acquittals. Critics called the results thin. Supporters countered that the process itself mattered—that accountability, even when limited, would deter future misconduct.

Here’s the pivot point: by validating the idea that investigations into prior administrations were fair game, both sides quietly agreed on a new baseline. The DOJ could look backward—and politically—so long as it claimed institutional integrity.

That logic now underpins calls from Trump-aligned figures to revisit everything from the January 6 investigations to the prosecutions of former administration officials.

Progressive Prosecutorial Innovation—And Its Blowback

Progressive prosecutors didn’t just litigate from the outside. They transformed charging strategies from within. Manhattan District Attorney Alvin Bragg’s use of novel felony theories in white-collar cases, and California Attorney General Xavier Becerra’s aggressive civil enforcement against energy companies, reflected a broader shift: stretch statutes to meet moral urgency.

Supporters saw courage. Opponents saw overreach.

The Manhattan DA’s office, for example, leaned heavily on expansive readings of falsification and conspiracy statutes—approaches later mirrored by federal prosecutors examining conduct by political adversaries. Once a court accepts elasticity in statutory interpretation, rolling it back becomes nearly impossible.

Legal scholar William Baude warned in a 2023 University of Chicago Law Review essay that “creative prosecution is a one-way ratchet.” Each innovation invites replication, not restraint.

How the Trump DOJ Adapts the Playbook

Though Trump is no longer in office, his allies and potential future appointees speak openly about “using every lawful tool” to counter what they view as progressive excess. That includes:

• Special counsel appointments with broad mandates
• Revived use of FISA-derived intelligence in domestic cases
• Civil rights statutes applied to institutions accused of ideological discrimination

None of these tools are new. What’s new is the comfort level. Progressive legal tactics—once defended as exceptional responses to exceptional threats—have normalized maximalism.

Former DOJ official Jeff Sessions said in a 2024 interview with The Federalist that “the left taught us how to fight with the law. We’d be foolish not to learn.”

Progressives bristle at that framing. They argue that Republicans conflate accountability with vengeance, and that context matters. Yet context rarely survives contact with precedent.

Polarization as Strategy, Not Side Effect

The real story isn’t hypocrisy. It’s polarization as an accelerant.

Legal strategies now assume a divided audience. Prosecutors draft filings knowing half the country will see persecution and the other half justice. That dynamic rewards spectacle and punishes restraint.

Data backs this up. A 2024 Pew Research Center survey found 72% of Americans believe the justice system favors one political side, up from 54% in 2016. Trust erodes, but engagement spikes. Donations flow. Fundraising emails cite indictments like campaign stops.

Both parties exploit the feedback loop. Both insist they’re responding, not initiating.

Voices of Dissent—From Left and Right

Not everyone accepts the arms race.

• ACLU lawyers have criticized both Democratic and Republican administrations for FISA abuse, calling for an independent adversarial advocate in all politically sensitive cases.
• The Cato Institute, libertarian-leaning, argues that prosecutorial discretion has expanded faster than judicial oversight.

• Former federal judge Jed Rakoff warned in 2022 that “the law is losing its neutrality, and once lost, it is rarely regained.”

These critiques share a theme: process matters more than outcomes. Yet process rarely wins elections.

What Readers Can Do—Right Now

Understanding legal power means engaging with it beyond headlines. Practical steps:

• Track primary documents: Use PACER Case Locator Pro to read indictments and motions firsthand.
• File your own FOIA requests: Platforms like MuckRock FOIA Generator simplify the process and publish results publicly.

• Study the statutes: Books like The Rule of Law in Crisis by David Cole offer statutory context without partisan gloss.
• Support watchdogs across ideologies: Balance matters. Donate to groups that challenge your own side as often as the other.

Knowledge doesn’t neutralize power. But it narrows the gap between rhetoric and reality.

The Precedent Problem

Legal precedents don’t care who set them. They only care that courts allowed them to stand.

Progressive legal tactics—from expansive surveillance justification to creative prosecutorial theory—emerged from genuine fears about democratic erosion. Those fears weren’t imaginary. But the tools forged in that moment now sit on a crowded shelf, available to anyone with the votes and the will.

The Trump DOJ didn’t invent the playbook it’s now accused of exploiting. It inherited it, well-worn and judicially blessed. The next administration, whatever its stripe, will face the same temptation.

History suggests it won’t resist.