A new era characterized by politicized prosecutions has emerged, overshadowing the traditional understanding of guilt or innocence based solely on legal principles and evidence. The federal prosecutions against Donald Trump concerning the events of January 6 and the Mar-a-Lago documents were not examples of political manipulation.
Similarly, the Manhattan case related to falsifying business records to conceal hush money payments to an adult film actress was grounded in evidence and legal facts. Despite this, Trump has claimed these cases are politically motivated, alleging that his adversaries are conspiring against him.
President Biden weighs preemptive pardons in response to Trump’s escalating threats
This assertion, while cynical and false, has become a recurring theme in his rhetoric. He has not secured victories through jury decisions but rather through cunning tactics and support from the Supreme Court. In his quest for retribution, Trump has vowed to imprison his political opponents, potentially including Special Counsel Jack Smith, Representative Adam Schiff (D-Calif.), and former Representative Liz Cheney (R-Wyo.).
According to NPR, during the campaign, Trump issued over 100 threats to prosecute or penalize those he perceives as enemies. Historically, revenge prosecutions were incompatible with the American legal system and societal values. However, that principle now appears to be eroding.
Federal prosecutors are expected to pursue cases only when they believe a federal crime has occurred and sufficient evidence exists for a successful conviction at trial. While some argue that a grand jury could be persuaded to indict anyone, including a “ham sandwich,” an indictment without solid evidence would be dismissed by the court.
Even in cases where an indictment may not be viable, a grand jury investigation can financially devastate or ruin the individual being targeted. Weaponizing the criminal justice system for political vengeance mirrors the practices seen in authoritarian regimes like those of Putin and Assad. This underscores the importance of the Constitution in safeguarding against such abuses.
Trump’s threats have raised concerns to the extent that President Biden is reportedly contemplating preemptive pardons for individuals who have not yet been charged and who might fall victim to Trump’s pursuits. Although controversial, preemptive pardons have historical precedent, as exemplified by President Jimmy Carter’s decision to pardon Vietnam draft evaders. Nevertheless, legal problems surrounding who would be covered remain.
Regardless of whether Trump pursues legal action against his opponents, Kash Patel, a Trump ally who may head the FBI, could investigate anyone opposing the MAGA agenda. Additionally, Pam Bondi, another ally and Trump’s second choice for attorney general, might bring these individuals before a federal grand jury.
If she cannot secure a conviction, civil investigations and lawsuits targeting the finances, businesses, and tax returns of perceived enemies remain viable alternatives. The notion that we are governed by laws rather than individuals is increasingly under scrutiny.
Upon entering law school, I held a somewhat naive belief that criminal prosecutions focused exclusively on law and facts, a principle we termed “the rule of law,” where no one, including the president, is above the law. This belief was foundational to my understanding of justice.
As a federal prosecutor in Manhattan under Robert M. Morgenthau, a Democrat whose father had served in FDR’s cabinet, I quickly learned that political affiliation was never a consideration in hiring for Morgenthau’s office. My colleagues represented a spectrum of political views, and when pursuing federal prosecutions, the focus remained on the actions of the defendant rather than their identity.
There is no legal stipulation stating that only Republicans may prosecute fellow Republicans or that Democrats may only prosecute Democrats. Morgenthau famously asserted, “A man is not immune from prosecution just because a United States attorney happens not to like him.”
The new norm of revenge prosecutions raises alarms about the future of American democracy
Prosecutions motivated by political agendas often lead to acquittals. In August 2020, Kyle Rittenhouse, a vigilante, fatally shot two men and injured a third during racial justice protests in Kenosha, Wisconsin. His defense was funded by right-wing organizations, which utilized jury focus groups to guide his legal strategy. Rittenhouse at the end took the stand and was acquitted on all charges, marking yet another political miscarriage of justice.
Attorney General Merrick Garland, a former judge, pledged to adhere strictly to facts and law. His Justice Department successfully indicted and convicted Senator Bob Menendez (D-N.J.) on 16 charges, including bribery, and he awaits sentencing.
Garland’s Justice Department indicted New York City’s Democratic Mayor Eric Adams on five counts of bribery and election fraud. Echoing Trump’s narrative, Adams claimed his indictment was a politically motivated attack from critics of his immigration policies. He anticipates receiving a pardon from Trump once he takes office, and Trump has indicated that such a pardon may be forthcoming.
In a related note, President Biden, despite initially stating he wouldn’t do so, granted a pardon to his son Hunter, who faced gun and tax charges brought by a special counsel. Although the gun charge was minor and the taxes had been paid, the pardon appeared politically motivated, reflecting a double standard.
On his first day in office, Trump has vowed to pardon those involved in the January 6, 2021, riots, many of whom remain incarcerated. This situation brings to mind the warning issued in 1940 by Justice Robert H. Jackson, who served as attorney general: “While the prosecutor at his best is one of the most beneficent forces in our society, when he acts from malice or other base motives, he is one of the worst.”
