“Revenge is a kind of wild justice; which the more man’s nature runs to, the more ought law to weed it out.” Francis Bacon, On Revenge, 1625
As we look ahead to Trump 2.0, with the pungent scent of revenge in the air—recall that Trump said he would not just seek retribution, he would be retribution—many have contemplated what politically-driven investigations and prosecutions may come, and what can possibly stop them. Trump has made clear his disdain for the Justice Department’s tradition of independence from White House influence, and his desire for an Attorney General more loyal and pliant than those from his first regnum.
He has been more than transparent about his targets: his predecessor (Obama), his successor (Biden), his latest opponent (Harris), the prosecutors who pursued him (Smith, Bragg, James, and Willis), and the judges presiding over his recent trials (Merchan and Engoron). At other times, he has demanded or threatened criminal cases against companies or executives who offended him, from Amazon, to Google, to Mark Zuckerberg.
Perhaps it is simply campaign bluster, rather than operational policy. Otherwise, it is not hard to imagine the hounds of law being unleashed upon others who speak ill of the once and future king, or who promote social values—diversity, environmental protection, and the like—that are now out of favor.
So what are the guardrails?
Federal Agency Policy
Sure, DOJ policy is pretty explicit when it comes to politically-driven law enforcement. Per the Justice Manual:
The legal judgments of the Department of Justice must be impartial and insulated from political influence. It is imperative that the Department’s investigatory and prosecutorial powers be exercised free from partisan consideration. It is a fundamental duty of every employee of the Department to ensure that these principles are upheld in all of the Department’s legal endeavors.
In fact, the Manual has an entire chapter setting out the rules and limits on interactions DOJ has with the White House and Congress, although I expect that section may be due for some editing.
But the Justice Manual, like similar internal policies of other federal enforcement agencies like the SEC, grants no rights to defendants, and is not enforceable in court. It is up to government attorneys to adhere to those restrictions, and Inspector Generals or agency ethics watchdogs to enforce them. And ultimately, all of them answer to the Attorney General or other agency head, who answers to . . .
So not much hope in agency policy.
Selective Prosecution
What about the doctrine of selective prosecution, an outgrowth of the 14th Amendment’s Equal Protection Clause, which the Supreme Court has recognized since 1886’s Yick Wo v. Hopkins, and which prohibits the government from taking enforcement action against someone merely because they exercise a constitutionally-protected right such as free speech?
Don’t count on that one, either.
Since the Supreme Court’s 1996 decision in U.S. v. Armstrong, selective prosecution motions have been nearly impossible to win. A defendant making the claim must show that (1) the defendant was “singled out for prosecution among others similarly situated”; and (2) the prosecution was motivated by a discriminatory purpose. As to the first element, even when the defendant points to similar persons who were not charged, it is almost always possible to distinguish the details of their conduct, the strength of the evidence against them, and a number of other factors. As to the second, the defendant has to provide “meaningful independent evidence” of improper motive, generally without the benefit of discovery into the issue.
In recent years, a string of high-profile defendants have alleged selective prosecution without success. Trump himself raised the defense in the January 6 criminal case, and was rebuffed. Not long before, Hunter Biden struck out with the same argument, as did Roger Stone and Paul Manafort before him. In 2017, AT&T argued that DOJ had sued to block its merger with Time Warner because Trump was angry about negative coverage by CNN, a Time Warner company. It went nowhere.
Of course, hard cases make bad law, and egregious ones sometimes make new law. Given Trump’s predilection for announcing his retaliatory motives in vivid (and capitalized) prose, it is possible that a judge might find even the Armstrong standard met. But history provides no real guide.
Judges and Juries
There is, of course, the judicial process itself. Even Elon Musk, Trump’s new extraordinary consigliere, would struggle to find a way around the Fifth, Sixth, and Seventh Amendments’ guarantees of jury trials and other basic procedural rights. Under last year’s Jarkesy v. SEC, agencies can no longer use in-house administrative tribunals to pursue penalties for civil violations, and the federal rules of both civil and criminal procedure, as well as the rules of evidence, are likely not going anywhere soon.
Depending on your perspective (Trump would disagree), this has worked at least some of the time to screen out entirely meritless, ginned-up cases. While grand juries will famously indict a ham sandwich, one of them in Washington apparently decided that a case Trump sought against former FBI Deputy Director Andrew McCabe was less than kosher, and refused to indict him. A trial jury acquitted Democratic lawyer Michael Sussmann in a case brought be Special Counsel John Durham, who Trump had appointed and urged to pursue those involved in the investigation of Russia’s involvement in the first Trump campaign.
But the incoming crew likely has a game plan for that as well. Conservative organizations challenging Biden policies have found a warm welcome in certain jurisdictions—such as the Amarillo outpost of the Northern District of Texas, as well as the Fifth Circuit more generally—and have learned to steer cases in that direction. A Trump DOJ could well seek reasons to file criminal charges or civil enforcement cases in those courts, rather than in D.C. or New York, with their less hospitable benches and jury pools.
Lawyers to the Rescue?
Or perhaps the legal profession itself could provide a firewall? Political appointees can give the orders, but ultimately, it is an Assistant U.S. Attorney or an SEC enforcement counsel with his or her name on pleadings and bar license on the line. State bar rules prohibit attorneys from bringing baseless claims, and in many cases specifically bar prosecutors from pursuing charges without probable cause. As Rudy Giuliani and other champions of the “Stop the Steal” litigation campaign came to learn, Trump’s pardon power does not extend to disbarment or suspension proceedings. Could line attorneys, fearing more for their long-term livelihood than their current jobs, push back against directions to pursue meritless cases?
We may find out. There is a reason Henry VI’s Dick the Butcher proposed to “kill all the lawyers” as a means to promote revolutionary chaos. Perhaps the bar will rise to its finest hour and take a stand for the rule of law.
I’m crossing my fingers, but not holding my breath.
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