Trump’s Critics Face Prosecution Threats as Biden Considers Preemptive Pardons

WASHINGTON — Republican leaders close to taking control of Congress and the presidency are continuing their threats of reprisal this week against fellow lawmakers who accused President-elect Donald Trump of criminal conduct.

Their top target appears to be former Rep. Liz Cheney, R-Wyo.

She said Trump incited the Jan. 6, 2021, riot at the Capitol as part of an illegal effort to seize control of the government.

She also recommended criminal prosecution of Trump during her leadership role while Congress investigated the riot.

On Tuesday, a House subcommittee recommended that Cheney be investigated and prosecuted for “criminal witness tampering” to portray Trump’s actions as worse than reality.

“Former Representative Liz Cheney used the Jan. 6 Select Committee as a tool to attack President Trump, at the cost of investigative integrity and Capitol security,” says a summary of the House Administration’s subcommittee report released by Rep. Barry Loudermilk, R-Ga.

Trump responded the next day with a post on his social media site Truth Social saying, “Liz Cheney could be in a lot of trouble based on the evidence obtained by the subcommittee, which states that ‘numerous federal laws were likely broken by Liz Cheney, and these violations should be investigated by the FBI.’ Thank you to Congressman Barry Loudermilk on a job well done.”

His nominees to lead the FBI and the U.S. Justice Department also have threatened prosecution of Trump’s critics in the federal government.

The dispute is breaking new ground on the limits of the Constitution’s speech and debate clause that grants immunity from prosecution to federal lawmakers. It says, “They shall in all cases, except treason, felony and breach of the peace, be privileged from arrest.”

The issue also raises questions about the “selective enforcement” banned by the 14th Amendment’s equal protection clause.

Selective enforcement more commonly applies to political prisoners. Theoretically it does not happen in the United States.

Other powerful lawmakers who are being threatened with prosecution include former House Speaker Nancy Pelosi, D-Calif., and Sen.-elect Adam Schiff, D-Calif.

The threat of revenge prosecutions prompted Sen. Bernie Sanders, I-Vt., to say Sunday during an NBC News interview, “This is what authoritarianism is all about, it’s what dictatorship is all about — you do not arrest elected officials who disagree with you.”

Sanders said President Joe Biden should “very seriously consider” giving preemptive pardons to protect members of Congress.

Biden has not publicly said he plans pardons of lawmakers but has discussed them with White House lawyers, according to reports that started with Politico.

This month he commuted criminal sentences for about 1,500 people released from prison and placed on home confinement during the COVID-19 pandemic and pardoned 39 others convicted of nonviolent crimes.

At the same time, he said he would take additional steps on possible pardons soon but gave no details.

Presidential pardons historically were used for persons accused or convicted of specific crimes. 

Trump’s threats of what he called “retribution” against the “enemies from within” appear to be motivating Biden’s discussions of preemptive pardons.

The only other time a presidential pardon has been used preemptively was when former President Gerald Ford pardoned former President Richard Nixon in 1974 while he was being accused of crimes related to the Watergate scandal.

Harvard law professor emeritus Alan Dershowitz said on Newsmax Monday that preemptive pardons are an authority the Constitution grants presidents.

Biden “can do essentially whatever he wants, as long as he’s not accepting bribes or doing anything illegal,” Dershowitz said.

“The Constitution gives the president unlimited power to pardon,” he said. “The courts will not interfere.”

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