Many are waiting for Donald J. Trump to carry out a “promise” he made during his campaign—to investigate, prosecute, bring before military tribunals, and maybe even execute those he views as political opponents—now that he is back in government.
Many others think Trump’s warnings are just rhetoric. They believe that the American judicial system will put an end to vengeful prosecutions due to its life-tenured judges, jurors, constitutional rights, standards of evidence, burdens of proof, and appeals.
The legal system is heavily biased against folks who are angry with Trump. The legislation banning revenge prosecutions is weak, and targets have no real legal recourse when investigating allegations of bias or injustice. Every one of them rests on the premise that, barring exceptional circumstances, prosecutors always do what’s right.
That assumption has been spun on its head by Trump’s warnings.
Trump has already shown his willingness to utilize the legal system to benefit his supporters and punish his detractors. He dismissed more than a dozen Justice Department officials who were engaged in the cases brought against him by former Special Counsel Jack Smith and pardoned more than 1,500 individuals imprisoned for their involvement in the Jan. 6, 2021 rebellion.
In his final days as president, Joe Biden granted preemptive pardons to a number of notable Trump opponents. Many prominent and obscure individuals, including as Smith, Rep. Nancy Pelosi (D-Calif.), career prosecutors of the Department of Justice, other members of the executive branch, judges, and retired military leaders, are still at risk since Biden was unable to identify them all. “If I win and somebody wants to run against me, I call my attorney general,” Trump said during the campaign, targeting not just his prospective political opponents but also journalists, a courtroom staffer, and a member of the Georgia grand jury. Listen, I’m saying, “indict him.”
That, I think, would be within his capabilities. The Supreme Court has generally made it difficult to question a prosecutor’s choice to pursue an individual for reasons other than following due process of law, such as because they are harassing, intimidating, or out for personal revenge. The driving principle is that the prosecution should be given a second chance.
In three ways, the judicial system is biased against everyone who crosses Trump’s path.
Restrictions on Pardons
Here we have an example of someone who has been granted a preemptive pardon for “any offenses against the United States which they may have committed or taken part in arising from or in any manner related to the activities or subject matter of the Select Committee to Investigate the January 6th Attack on the United States Capitol.” Take, for example, former Wyoming Republican Jim Cheney. Cheney may use the pardon as an excuse to have any charges against him brought by Attorney General Pam Bondi that pertain to the committee’s work dropped.
But Cheney would still be subject to subpoenas and other investigation-related hassles even with the pardon. Cheney would need legal representation to get a protective order from the court in the event that she were served with a subpoena demanding testimony or records. Pardons’ ability to void subpoenas has never been decided upon by the Supreme Court. Only President Gerald Ford’s pardon of Richard Nixon for his role in Watergate stands out as an exception to the rule of preemptive pardons that anticipate future investigations. Biden granted these to the members of the Jan. 6 committee, Dr. Anthony Fauci, Gen. Mark Milley, and five members of the Biden family.
Even though Biden’s pardon shields Cheney from prosecution, if she accepts it, she may lose the ability to use the Fifth Amendment to avoid self-incrimination on matters covered by the pardon, making it more difficult for her to legitimately refuse to testify before a grand jury or Congress. The pardon would also not shield her from any future criminal accusations, no matter how baseless, that she lied or obstructed justice because of her testimony.
The pardon does not cover Cheney’s financial dealings or tax records, but Trump may launch criminal investigations against them nevertheless. Much worse, according to Glenn Kirschner, a former federal prosecutor, “under his core constitutional powers, Trump could order his military leadership or his Justice Department officials to summarily and unlawfully detain Cheney… and Trump couldn’t be prosecuted” due to the Supreme Court’s decision in Trump v. U.S. that established criminal immunity for presidents.
Cheney has two options under the law to assert her right to be free from selective, malicious, or vengeful prosecution in the event that Trump follows through with his plan to prosecute her for an unconnected matter to the Jan. 6 committee: either defend herself against the criminal charges or initiate a new civil action.
Both are challenging.
Defense Against Selective Prosecution
A defendant may assert the defense of “selective prosecution” as one of the few options available to them when confronted with a hostile inquiry. Keeping with the same example, Cheney may attempt to have the charges against her dropped by claiming selective prosecution based on Trump’s stated threats.
Under the 5th Amendment’s due process provision, which ensures equal treatment under the law, a selective prosecution defense can be used. The defense of selective prosecution can lead to the dismissal of charges in cases where the prosecutor’s decision to press charges was motivated by bias, such as a defendant’s race, religion, or political beliefs. It can also be used to challenge a defendant’s exercise of a constitutionally protected right, like refusing a plea deal in favor of a jury trial.
However, there are substantial challenges to that line of defense. It has long been established by the Supreme Court that “the choice whether or not to prosecute, and what charge to file or bring before a grand jury, typically lies wholly in his discretion,” meaning that the prosecutor has probable cause to think that the accused committed a statute-defined act. ” As the president’s representatives, prosecutors “have this latitude” to “take care that the laws be faithfully executed,” as stated in Article II of the Constitution.
It would be reasonable to assume that the evidence exists to prevent any malicious charges from proceeding, given Trump’s repeated public declarations threatening criminal retribution. It will require brave judges who are prepared to broaden the scope of the Supreme Court’s limited acceptance of allegations of vindictive prosecution, as well as a majority of justices who are ready to support the decisions of lower courts, to make this happen. Most of Trump’s foes, even secret grand jury witnesses whose names were revealed to him on the day he took the oath of office, may face unfriendly Supreme Court precedents developed with an eye toward a more conventional Justice Department.
Those times have passed. It was reasonable to assume prosecutorial “regularity” before his administration. However, the legal system appears unprepared for what lies ahead now that Trump has become the first U.S. president to gain office on the platform of criminal retribution.