During his ultimately victorious presidential campaign, Donald Trump made no secret of his intention to use the government’s legal tools to go after his perceived enemies. So when he takes office in January, we should expect him to unleash a reign of terror against dozens of people he sees as conflicting with him. The Supreme Court’s opinion would give the president broad immunity from prosecution, allowing him to pursue his revenge.
A recent National Public Radio analysis determined that Trump has threatened more than 100 Federal investigation or prosecution to settle scores. They cover President Biden and his family, and the president-elect has promised to repay them on his first days in office by appointing a special prosecutor to investigate unspecified crimes; he recently advised former Rep. Liz Che Liz Cheney faced punishment like a firing squad; the judges involved in her prosecution; and reporters who refused to give up their sources.
To be sure, Trump often gives the impression that he knows little about, or is even uninterested in, many of the policies he pursued on the campaign trail. But revenge on his enemies is clearly what gets him out of bed in the morning. Long before he entered politics, Trump was single-mindedly intimidating and retaliating against his opponents.
A passage from one of his cheesy books, which was read into evidence at a New York criminal trial, read: “My motto is: Always take revenge. When someone screws you over, take them back in spades. .
In this regard, Trump is not unique in American presidential history. Wanting to “screw” the enemy is a sign of an insecure leader, and it was the impulse that led to the downfall of Richard Nixon. Watergate originally grew out of Nixon’s hatred of Daniel Ellsberg, whom he was determined to embarrass for exposing the Pentagon Papers.
In the wake of Nixon’s brutality, the country enacted a series of laws, regulations, and norms designed to prevent government retaliation. They include barring the White House from intervening in Justice Department prosecutions that have normative status.
I was a Justice official at the beginning of the Whitewater scandal, when it was unthinkable for White House officials to try to direct the Justice Department to investigate political opponents. No government would dare to do this, and no department official would acquiesce.
The only administration since Watergate that has failed to fully respect this principle is the Trump administration. His political appointees have repeatedly urged the department to at least provide information about continued prosecutions. During those difficult years, the department sometimes resisted and sometimes relented. Biden’s attorney general, Merrick Garland, has made rebuilding the wall between the White House and Justice Department a top priority.
Trump has made clear that he intends to tear down that wall on his first day in office. Trump announced, under the Plan 2025 blueprint, that he planned to eviscerate the department’s career staff and replace them with political appointees who would serve him at will and be loyal to him, not the Constitution.
At that point, there will be no real obstacles to using federal power to retaliate against Trump’s long list of enemies. This would run counter to the Department of Justice’s proud desire to “deliver justice without fear or favor.”
In addition, Trump also said he would rely on the Supreme Court’s immunity opinion to deal with any legal resistance. Recently, when asked what he would do about Jack Smith, the special prosecutor who led two of his federal prosecutions, Trump Replied”, “It’s easy — I’d fire him in two seconds,” adding that he would enjoy “Supreme Court immunity.”
The irony and tragedy of Trump citing this opinion is that the court declared that its ruling was not for Trump, but for “all generations to come.” But it does serve Trump’s unscrupulous ambitions. While courts have held that immunity is needed to safeguard aggressive, flexible and potentially lawful presidential actions, Trump has learned the lesson that he can violate the Constitution with impunity.
Corrupt use of prosecutorial powers may constitute a crime. First, the federal code criminalizes conspiracy to injure any person because of the exercise of a constitutional right or because of race. But the Supreme Court has ensured that Trump can prosecute illegally: He can commit crimes but cannot be held responsible for those crimes.
Trump’s retaliatory agenda may face other obstacles. A grand jury may not agree with an indictment that smacks of revenge, while a trial jury and judge are more likely to resist.
Additionally, presidential immunity does not extend to other executive branch officials, and Trump will need colleagues at the Justice Department to enforce his orders. But with Republicans holding a clear majority in the Senate, Trump is likely to get confirmation of any top official he wants. That could include people like right-wing activist and attorney general hopeful Mike Davis, who wrote of Trump’s opponents on Wednesday: “I want to drag their dead political corpses through the streets. Burn them and throw them off the wall (legally, politically and financially, of course.)”
Indeed, by far the most important protections against retaliatory prosecutions are the nonpartisan professionalism of career federal prosecutors and the norm prohibiting the White House from telling them who to prosecute. Trump clearly intends to undermine these safeguards. This alone constitutes a huge step away from the rule of law and towards dictatorship.
Harry Litman is the show’s host “Federal Reserve Talk” Podcast and”Talking about San Diego” Speaker series. @harrylitman
