Legal questions surround Trump's talk of political prosecutions

WASHINGTON — 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 soon-to-be president expressed support for that tactic on the campaign trail, but former Justice Department officials and legal experts say there are various guardrails set up to prevent retribution through the criminal process.

Prosecutors can refuse to take part in unjustified investigations, officials at state bars can revoke law licenses and the department’s Office of Professional Responsibility can investigate corrupt decisions. Plus, if charges are brought, federal judges can dismiss cases and jurors can decline to convict defendants.

Supporters of Trump have often downplayed his most incendiary remarks, while others say certain rhetoric is justified given the criminal cases brought against him. Yet, former Trump administration officials have warned publicly that people who once aimed to stop Trump’s worst impulses will not 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 after a Supreme Court decision earlier this year. That opinion foreclosed entirely allegations about Trump’s effort to enlist Justice Department officials to spread false information about the 2020 election. Trump also will not have to worry about how his actions might affect a reelection campaign.

“IF YOU GO AFTER ME, I’M COMING AFTER YOU!” Trump posted last year on social media.

Trump has called for the prosecution of Rep. Adam B. Schiff and members of the now-disbanded House select committee that investigated the Jan. 6, 2021, attack on the Capitol. And weeks before the election, Trump declared that Pelosi should be “prosecuted” for turning down National Guard members during the Capitol attack, a narrative the Associated Press has deemed lacks evidence.

Over the summer, Trump amplified a social media post that called for a military tribunal for former Rep. Liz Cheney, a Republican and outspoken critic against him. “ELIZABETH LYNNE CHENEY IS GUILTY OF TREASON,” read the post, which Trump amplified. “RETRUTH IF YOU WANT TELEVISED MILITARY TRIBUNALS.”

Also on Truth Social this year, Trump amplified a post that featured 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 post read: “THEY SHOULD BE GOING TO JAIL ON MONDAY NOT STEVE BANNON!”

Mark Paoletta, a lawyer in the first Trump administration, in a social media post Thursday defended Trump’s ability as president to supervise the Justice Department, even on specific cases.

“President Trump will not use the DOJ for political purposes, that is to go after individuals simply because they are political opponents,” Paoletta wrote. “But just because you are a political opponent does not give you get a free pass if you have violated the law.”

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

Rosenstein forecasted that the second-term Trump Justice Department “is probably not going to waste time and money investigating the President’s political opponents without the usual predication.”

He also said “you can’t solve the problem of politically motivated prosecutions by launching your own politically motivated prosecutions. Conservatives who respect the rule of law don’t want prosecutors to target Democrats any more than Republicans,” he wrote.

“If you do the right thing, it doesn’t always make the President happy, and it doesn’t always make the critics happy. That’s just part of the job. It’s 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 caution there are ways to manipulate or get around guardrails. For example, attorneys who resign in protest, or are fired for refusing to carry out a certain action, can simply be replaced by another lawyer, said David Super, a professor at Georgetown Law.

“It could be unpleasant for the particular DOJ attorney involved, but it wouldn’t stop (the) prosecution,” Super said.

Peter Keisler, an acting attorney general during George W. Bush’s administration, said in a statement that investigations alone can exact a toll on their target. Criminal prosecutions are at least subject to key 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 checks, but which can still destroy someone’s life.”

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

“That can jeopardize your livelihood, your reputation, your personal relationships, and your peace of mind, even if no formal charges are ever brought,” he said.

Justin Levitt, a professor at Loyola Law School and a constitutional law scholar, said Trump has purposefully fostered confusion about his actual intentions.

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

Either way, Levitt said it is the public’s responsibility to take him literally and seriously, “and not assume that he’s joking when he says that he’s not.”

Sen. Christopher S. Murphy, D-Conn., posted on social media Thursday that Trump “might not be lying about the round ups and political prosecutions. Job one is to get ready for that.”