President-elect Trump recently threatened to lock up political foes, like Liz Cheney, as well as members of Congress who investigated his role in the Jan. 6 attack. “For what they did,” he said, “honestly, they should go to jail.”
On the campaign trail, Mr. Trump said repeatedly that he would encourage the Justice Department and the F.B.I. to go after his enemies. His picks for attorney general (Pam Bondi) and F.B.I. director (Kash Patel) have echoed these remarks. Mr. Patel even compiled an enemies list, which includes Christopher Wray and retired Gen. Mark Milley.
This impulse could reach beyond leadership and may well trickle down in significant part to the 94 federal district courts around the nation. Each United States attorney will have been appointed by Mr. Trump and will be subject to his whim — meaning their potential firing if he does not approve of their performance.
If these confirmed public servants can’t stand up to the pressure from above to serve not an individual person but justice as a principle, who will? It will have to be the judges.
Judges simply can’t be blind to what Mr. Trump, Ms. Bondi and Mr. Patel have said. They can’t ignore their words if the Justice Department under Mr. Trump or the F.B.I. goes after those on an enemies list who have committed no crime beyond opposing the president-elect.
Suppose a federal district judge is asked to sign off on an eavesdropping warrant under Title III of the federal criminal law. He or she will receive one-sided (“ex parte”) submissions from prosecutors applying for search warrants (for a physical search or a wiretap), an application that the target’s attorney will not know about nor have the ability to contest.
In previous administrations, federal trial judges have had generally well-founded confidence that the Justice Department and the post-Hoover F.B.I., under presidents from either party, have not been employed to attack political enemies. Most district judges — especially those who have served as federal prosecutors, as most have — believe that the prosecutors appearing before them act with integrity, that their offices are not being manipulated to undermine those who challenged the current administration or its leader.
A judge could assume that the warrant has gone through layers of approval within the Justice Department, even reaching the assistant attorney general in charge of the criminal division, an extremely high ranking official in the department. That judge could also be reasonably confident that very little, if anything, would be amiss after passing through the layers of the approval process, including senior department officials.
But with the astonishing comments from the president-elect and his appointments, it is reasonable to ask if judges can still assume that level of confidence in the review process. The previous assumption that prosecutions would be undertaken only against individuals suspected of committing crimes may be wrong.
Now, when judges are asked to review warrant applications, or any other ex parte submissions from the government, they should do so through a different lens, much more scrupulously than ever before.
Or consider a motion to dismiss an indictment based on selective prosecution. In the usual case, prosecutors are given broad discretion, so long as there is probable cause to believe a crime has been committed and the prosecution does not run afoul of constitutional protections.
A selective prosecution motion alleges that criminal charges were brought for reasons forbidden by the Constitution. The defendant must prove that he was singled out for prosecution when those similarly situated were not and that the prosecution was based on an impermissible reason, such as race, religion or political affiliation.
Since courts presume that the government undertakes a prosecution in good faith, the defendant’s burden of proof is typically quite heavy. The motion rarely succeeds — for example, Hunter Biden’s motion to dismiss his gun case on selective prosecution grounds failed.
But what if, in Mr. Trump’s second term, the object of the prosecution is on Mr. Patel’s list, or is expressly targeted in a Trump speech? Judges should obviously not assume that prosecutors in the Trump administration are always acting in bad faith. But they should consider accusations of selective prosecution differently than they have in the past.
If a defendant in a political case raises legitimate concerns about the integrity of a case in Mr. Trump’s second term, federal judges can’t bury their heads in the sand and ignore the attorney general’s clear intentions or those of the proposed F.B.I. director.
When these individuals announce that political affiliation will influence their prosecution decisions, judges should believe them — and act accordingly.
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