As the presidential transition progresses, a key question for American democracy and the rule of law is whether Donald Trump will commit federal resources, including the Department of Justice, to pursue the rule of law. retaliation against political opponents. This includes retaliation through possible criminal investigations and prosecutions, as President Trump repeatedly promised during his campaign.
A second, little-considered question is whether President Biden will pardon this or preempt so-called “revenge” prosecutions through pardons.
Who is at risk and why?
parliamentary investigation
As my partner Bill Pittard I wrote recentlyaggressive congressional investigations into Trump's political opponents are virtually guaranteed during his second term. Because Republicans control both houses of Congress, perceived opponents of President Trump face near-continuous scrutiny from committees in both houses of Congress, which could disrupt their lives in a variety of ways. expensive.
Politically motivated investigations are not new, but President Trump's public statements and presidential candidate nomination So far, the administration's approach is likely to move further. These investigations will extend to personal and political retribution disguised as legitimate federal criminal investigations. As Pittard points out, such investigations can escalate into other forms of harassment targeting not only public officials but also civilians.
Criminal investigations by federal and state prosecutors
One of the most feared categories of acts of revenge involves criminal prosecution of those who investigated and prosecuted Mr. Trump and his allies. Such prosecutions would be led by a newly appointed special counsel and U.S. attorney and would likely target individuals such as: special prosecutor jack smith and his team, as well as state prosecutors (including the Fulton County District Attorney) who have filed criminal and civil lawsuits against Trump and the Trump Organization. Fanny WillisManhattan District Attorney Alvin Bragg and New York Attorney General letitia james.
The implications of criminal investigations by federal and state prosecutors for the performance of their official duties are profound, undermining confidence in the justice system and signaling a dangerous normalization of political retaliation.
state election official
President Trump has focused considerable attention on state election officials, accusing them of collusion. “Rampant” Fraud in the 2020 election. As recently as September 2024, President Trump posted on social media that the person in charge of administering the 2020 election was “It's a long prison sentence. ” He threatened criminal proceedings against election officials, lawyers, and even donors.
These threats are not being ignored. President Trump's transition team has reportedly outlined plans to prosecute state election officials and others involved in certifying the 2020 election results. Such actions send a chilling message to those involved in ensuring fair elections and undermine public confidence in the integrity of the electoral process.
Claim for preemptive pardon
The constitution gives the president broad powers to grant pardons, including pre-emptive pardons before prosecution begins. Historically, presidents have used this power to heal national divisions and prevent political crises. Examples of preemptive pardons include:
- george washingtonpardoned the participants in the Whiskey Rebellion to unite the country and prevent further riots.
- jimmy cartergranted amnesty to Vietnam War draft evaders to encourage reconciliation.
- gerald fordpreemptively pardoned Richard Nixon, citing the need to “bring an end to a long national nightmare.”
Biden faces a similar moment of reckoning. Preemptively granting pardons to potential targets of President Trump's revenge plots would protect individuals who acted in good faith and keep the Justice Department largely independent from political interference.
Critics may argue that a pardon could be seen as an admission of guilt and could spark a political backlash. But the risks of not taking action are far greater. Allowing President Trump to routinely engage in political retribution will undermine public trust in the rule of law and set a precedent for future abuses of power.
A pardon would not end Congressional investigations or executive harassment, but it would neutralize the most devastating weapon in President Trump's arsenal: federal criminal prosecution. With a single stroke of his pen, Mr. Bien could provide immediate relief to those under threat and send a clear message that justice is not a tool for personal vendettas.
President Biden has a unique opportunity to uphold the Constitution and uphold the rule of law by decisively exercising his pardon power. Protecting public officials from politically motivated prosecutions would strengthen the Justice Department's independence and demonstrate that justice cannot be used as a weapon of retribution.
The time to act is now.
Jonathan S. Jeffress is the next partner. Kaiser PLLCa former assistant federal public defender in Washington, D.C., who specializes in white-collar criminal defense.
