There are legal questions surrounding Trump’s talk of political prosecutions

Donald Trump’s return to the White House will put him in a position to push for criminal charges against his political opponents, such as former Speaker Nancy Pelosi and other members of Congress.

The president-elect expressed support for this tactic during his campaign, but former Justice Department officials and legal experts say several guardrails have been put in place to prevent retaliation through the criminal process.

Prosecutors can refuse to participate in unwarranted investigations, state bar officials can revoke law licenses, and the department’s Office of Professional Responsibility can investigate corrupt decisions. Additionally, if charges are filed, federal judges can dismiss cases and jurors can refuse to convict suspects.

Trump supporters have often downplayed his most inflammatory comments, while others say some of the rhetoric is justified given the criminal cases filed against him. Yet former Trump administration officials have done just that warned publicly that people who once wanted to stop Trump’s worst impulses won’t be there to rein him in during a second term.

And the former president, who flirted with authoritarian themes during his campaign, will be immune from federal prosecution for official acts following a Supreme Court ruling earlier this year. That opinion has completely shielded allegations about Trump’s efforts to enlist Justice Department officials to spread false information about the 2020 election. Trump also doesn’t have to worry about the potential impact of his actions on a re-election campaign.

“If you come after me, I’ll come after you!” Trump posted Last year on social media.

Trump has called for the prosecution of Representative Adam B. Schiff and members of the now-disbanded House of Representatives committee that investigated the January 6, 2021, attack on the Capitol. And weeks before the election, Trump declared that Pelosi should be “prosecuted” because he had turned away National Guard members during the attack on the Capitol, a story the Associated Press has alleged. deemed lacks evidence.

During the summer, Trump strengthened a social media post calling for a military tribunal for former Rep. Liz Cheney, a Republican and outspoken critic of him. “ELIZABETH LYNNE CHENEY IS GUILTY OF TREASON,” read the message, which Trump amplified. ‘BACK IF YOU WANT MILITARY TRIBUNALS ON TELEVISION.’

Also on Truth Social this year, Trump amplified a post with the photos of more than a dozen current and former elected officials, including Senate Majority Leader Charles E. Schumer, D-N.Y., Senate Minority Leader Mitch McConnell, R-Ky. and President Joe Biden. The message read: “THEY SHOULD GO TO JAIL ON MONDAY NOT STEVE BANNON!”

Mark Paoletta, a lawyer in the first Trump administration, on social media after On Thursday, Trump defended the ability as president to oversee the Justice Department, even in specific cases.

“President Trump will not use the DOJ for political purposes, i.e. to go after individuals simply because they are political opponents,” Paoletta wrote. “But just because you’re a political opponent doesn’t mean you get a free pass if you’ve broken the law.”

Impartial incentive

Rod Rosenstein, deputy attorney general during the first Trump administration, said in an email that guardrails such as laws, regulations and policies “create a powerful incentive for Justice Department officials to continue the tradition of making impartial decisions.” respect.”

Rosenstein predicted that Trump’s second-term Justice Department “is unlikely to waste time and money investigating the president’s political opponents without the usual forecast.”

He also said: “You cannot solve the problem of politically motivated prosecutions by launching your own politically motivated prosecutions. Conservatives who respect the rule of law do not want prosecutors to target Democrats any more than Republicans,” he wrote.

“Doing the right thing doesn’t always make the president happy, and it doesn’t always make the critics happy either. That’s just part of the job. It is what you promise to do when you take an oath to ‘well and faithfully discharge the duties of the office,'” Rosenstein wrote.

Some legal experts warn that there are ways to manipulate or circumvent guardrails. For example, lawyers who resign in protest, or are fired for refusing to take a specific action, can simply be replaced by another lawyer, says David Super, a professor at Georgetown Law.

“It might be unpleasant for the DOJ attorney in question, but it wouldn’t stop the prosecution,” Super said.

Also research

Peter Keisler, acting attorney general during the George W. Bush administration, said in a statement that investigations alone can take a toll on their targets. Criminal prosecutions are at least subject to important external checks, such as a jury and an independent judge, he said, but that dynamic is much less true when it comes to criminal investigations — “which are much easier to initiate, much less formal, and much less subject to external controls, but which can still destroy someone’s life.”

An FBI agent or a Justice Department prosecutor could obtain a person’s records, interview his friends, his co-workers, and his boss, and possibly leak to the media that the person is the target of a federal criminal investigation , Keisler said.

“That could jeopardize your livelihood, your reputation, your personal relationships and your peace of mind, even if formal charges are never filed,” he said.

Justin Levitt, a professor at Loyola Law School and a constitutional law scholar, said Trump has deliberately promoted confusion about his real intentions.

“He has promised so much and lied about so much that it is actually difficult to know which things are purely campaign material and which things are promises for actual governance. And I think some of that is intentional,” Levitt said.

Regardless, Levitt said it’s the audience’s responsibility to take him literally and seriously, “and not assume he’s joking when he says he’s not.”

Sen. Christopher S. Murphy, D-Conn., posted on social media Thursday that Trump “may not be lying about the raids and political persecutions. Job one is to prepare for that.”