Former President Donald Trump’s consistent threats to prosecute his perceived enemies – most recently this past weekend – are concerning to many legal and democracy experts, who say Trump’s own history shows he could make good on those promises in a second presidential term.
On Saturday, the Republican presidential nominee alleged on Truth Social that there was “rampant Cheating and Skullduggery” in the 2020 presidential election, despite numerous recounts and audits disproving his claims that he only appeared to have lost because of voter fraud. Trump then brought those baseless fraud claims to bear on the 2024 election, saying various groups – including lawyers and “Corrupt Election Officials” – should beware that after he wins the 2024 election, “those people that CHEATED will be prosecuted.”
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The threat comes just a couple weeks after Trump circulated Truth Social posts calling for military tribunals against former President Barack Obama and for indicting the House committee that investigated the Jan. 6, 2021 attack on the Capitol. He shared with his followers another user’s post depicting rivals in jumpsuits, including President Joe Biden, Vice President Kamala Harris, and former House Speaker Nancy Pelosi.
Richard Painter, who was a White House ethics lawyer for President George W. Bush, likened the comments to a vision of President Vladimir Putin’s Russia, where Putin’s political opponents end up behind bars on charges such as “extremism” or “treason” after criticizing his regime.
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“It’s extremely dangerous for democracy, this idea that the winner just puts the loser in prison, prosecutes the loser,” Painter told USA TODAY.
Trump Campaign National Press Secretary Karoline Leavitt told USA TODAY in an email that Trump “believes anyone who breaks the law should be prosecuted to the fullest extent of the law, including criminals who engage in election fraud.”
“Without free and fair elections, you can’t have a country. Ask Venezuela,” Leavitt said.
The former president has previously suggested prosecuting his rivals would be legitimate revenge for his own legal troubles, which include one criminal conviction in New York state court and three other criminal cases.
Painter said that argument ignores some stark differences between Trump’s own situation and what he is threatening to do.
“Joe Biden never campaigned on a promise to put Donald Trump in prison,” Painter said. “When Donald Trump engaged in the conduct he did, an independent prosecutor was appointed,” he added, referring to special counsel Jack Smith, who has significant independence from Justice Department leadership and secured grand jury indictments in the two federal cases Trump faces, one alleging Trump unlawfully attempted to subvert the 2020 election and the other alleging he mishandled classified documents.
Trump has previously tried to prosecute his rivals
Robert Gordon, a Stanford law professor, said even though Trump is “given to bluff and bluster,” there is good reason to believe he means it when he says he will use the legal system to get revenge. Gordon noted that Trump tried to get the FBI and Justice Department to investigate and prosecute rivals during his first term. That broke with post-Watergate norms for keeping law enforcement investigations independent from the White House.
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For instance, according to the Mueller report, Trump’s first attorney general, Jeff Sessions, told federal prosecutors Trump asked him to reverse his decision to recuse himself from presidential campaign-related investigations and direct the Justice Department to investigate and prosecute Hillary Clinton around the summer of 2017.
In the spring of 2018, Trump also told White House counsel Donald F. McGahn II he wanted to order the Justice Department to prosecute both Hillary Clinton and James Comey, the former FBI director whom Trump had already fired during an investigation into Russian interference to help Trump in the 2016 US presidential election, according to the New York Times. McGahn had White House lawyers write a memo warning Trump that if he ordered law enforcement to investigate his rivals, he could be impeached.
After the March, 2019 release of the Mueller report, which looked at Russian interference in the 2016 election, Trump also called for federal officials to “investigate the investigators.” Bill Barr, Trump’s chosen attorney general after Sessions, later appointed special counsel John Durham to do just that.
“He made clear his position that as head of the executive branch, he has both the power and right to direct federal criminal justice enforcement at any targets he chooses; and does not respect the ‘independence’ of the Attorney General and of US Attorneys,” Gordon told USA TODAY in an email.
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Why Trump could succeed next time
Amanda Carpenter, a former staffer to Republican Sens. Jim DeMint and Ted Cruz, who now works for Protect Democracy, a nonpartisan nonprofit, told USA TODAY it will be easier for Trump to get underlings to go through with a prosecution − even without strong evidence − because checks on the president’s power will be weaker.
“The prosecution he’s threatening against people who challenge his authority is based on smears, conspiracies, and lies, and that is why, when he has gone to court for those election lies in the aftermath of the 2020 election, his claims are rejected again and again,” she said, referring to Trump’s more than 60 failed election-related lawsuits.
Carpenter noted plans from Trump allies to erode Justice Department independence along with the Supreme Court’s July 1 presidential immunity decision and the dwindling number of congressional Republicans who supported Trump’s Jan. 6-related impeachment.
“Trump and his allies have spent their time out of office creating plans to systematically gut the checks and balances that stopped him from excessive law breaking in his first term,” Carpenter said.
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Defending Trump’s call to prosecute rivals
At least one prominent law professor has come out in support of using the justice system for retaliation, saying Trump shouldn’t have been charged with crimes and revenge prosecutions are the way to fix it.
University of California, Berkeley law professor John Yoo, a former Justice Department lawyer and prominent conservative, argued in National Review in May that the prosecutions against Trump threaten the ability of future presidents to act in emergencies because they will fear getting prosecuted for their conduct. Those responsible for Trump’s criminal cases will only learn their lesson, Yoo said, if Trump’s rivals also get prosecuted.
“Without the threat of prosecution of their own leaders, Democrats will continue to charge future Republican presidents without restraint,” Yoo wrote.
In an email to USA TODAY, Yoo said he doesn’t take Trump’s posts seriously. On the post about military tribunals for Obama, he said such tribunals don’t have the power to try American officials. The photos of Democrats in prison jumpsuits seemed to him “to be a joke.”
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“What I argued in my piece, and I continue to believe, is that Democratic district attorneys are prosecuting Trump and his campaign officials under contrived state criminal charges for their conduct in a federal election,” he wrote. “If Democrats, however continue to interfere with federal candidates like Trump and their campaigns, then they are opening the door for Republican DAs to do the same.”
Ilya Somin, a George Mason University law professor, said arguments that Trump should sic prosecutors on his rivals as vengeance − that “what’s good for the goose is good for the gander,” as the saying goes − ignore the question of who has actually committed a major crime.
“If the goose committed a serious crime, he deserves to be in prison, and if the gander didn’t, then she doesn’t,” he told USA TODAY. “Trump committed serious crimes by trying to overturn the 2020 election by force and fraud.”
What crimes does Trump claim his rivals committed?
Trump and the memes he reposted did not specify what crimes his nemeses allegedly committed, except in the case of the Jan. 6 Committee, which he accused of “sedition.”
“Seditious conspiracy” is a federal crime, involving conspiring to attack or harm the U.S. government through various potential avenues, such as trying to overthrow or wage war against it. Trump didn’t clarify how he believes the committee, which investigated the Jan. 6 attack on the Capitol under House investigatory powers, committed that crime.
When it comes to prosecutions ordered by Trump, Somin doesn’t expect that courts or juries would accept criminal charges merely based on someone having opposed Trump on some issue, but said even being investigated or charged would be a significant burden for those targeted.
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However, given how much conduct is covered by federal law, if the Justice Department really wanted to charge someone with a crime, there’s a good chance it could find one for almost any adult, Somin added. For instance, he noted evidence suggesting half of American adults have tried marijuana, even though marijuana possession is a federal crime.
“This is a common tool of various authoritarian regimes. I’m not saying that Trump could immediately or quickly get us all the way there, but there is a chance that he would take a step in that direction if he had the opportunity,” he said.
Personnel is policy?
During Trump’s first term, appointees from the Republican establishment slowed or blocked some of Trump’s efforts to test or break legal boundaries.
Bill Barr, for instance, told CNN’s Kaitlan Collins in an April interview that Trump “would lose his temper” and say that people he was upset with should be executed. “At the end of the day it wouldn’t be carried out and you could talk sense into him,” Barr said.
Vice President Mike Pence resisted Trump’s multi-week campaign to get him to reverse the results of the 2020 election during Pence’s constitutional role in counting the electoral votes.
Trump advisors and former aides have said that he will prioritize personal loyalty and commitment to his agenda in choosing appointees to his next administration.
One such person has already been chosen: Republican vice presidential nominee JD Vance, who has said he wouldn’t have certified the 2020 presidential election results, unlike Pence.
