A Caution for Those Challenged by Trump: The Law May Not Favor You
The legislation designed to safeguard defendants against retaliatory prosecutions was not created with the Trump era in mind.
TroibNews 
With Donald J. Trump back in office, both supporters and opponents are preparing for him to act on a campaign "promise" he has reiterated over 100 times: to investigate, prosecute, subject to military tribunals, and even execute those he views as political adversaries.
Critics argue that Trump’s threats may be largely empty. They believe the U.S. legal system, characterized by life-tenured judges, juries, constitutional rights, burdens of proof, rules of evidence, and appeals, will ultimately prevent vengeful prosecutions.
However, for those on Trump's list of perceived enemies, the legal landscape is remarkably unfavorable. There is essentially no effective legal recourse available for someone under investigation to contest vindictive or unfounded inquiries, and the legal standards governing retaliatory prosecutions are minimal. This framework was established under the belief that prosecutors generally act in good faith. Trump's threats have fundamentally challenged that assumption.
Trump has already signaled a readiness to leverage the justice system to favor his allies and target his opponents. He has issued pardons to over 1,500 individuals connected to the January 6, 2021 insurrection, and dismissed more than a dozen officials in the Justice Department involved in former Special Counsel Jack Smith’s probes against him.
Some of Trump’s notable targets may find temporary relief from Joe Biden’s preemptive pardons granted during his final days in office. However, Biden could not include every possible target of retribution, leaving many individuals—known and unknown—including Smith, Rep. Nancy Pelosi, career DOJ prosecutors, other executive branch members, judges, and former military officials vulnerable. During his presidential campaign, Trump expanded his targets to include private citizens like journalists and even individuals involved in the Georgia grand jury process, as well as potential political rivals: “If I win and somebody wants to run against me, I call my attorney general. I say, ‘Listen, indict him.’”
The Supreme Court has generally established significant barriers to contesting a prosecutor's decision as harassment or abuse of power, maintaining that prosecutors are entitled to a presumption of good faith.
Here are three reasons the law is notably skewed against individuals who find themselves within Trump’s legal sights.
**The Limits of Pardons**
Hypothetically, if someone like former Rep. Liz Cheney obtained a preemptive pardon for "any offenses against the United States which they may have committed or taken part in arising from or in any manner related to the activities or subject matter of the Select Committee to Investigate the January 6th Attack on the United States Capitol," she might successfully argue for dismissal if Attorney General Pam Bondi were to charge her related to the committee’s work.
Yet, the pardon doesn’t protect Cheney from subpoenas and other burdens of an investigation. If served a subpoena for testimony or documents, she would need to seek a court’s protection. The Supreme Court has never ruled on whether a pardon can annul a subpoena. Preemptive pardons anticipating future inquiries, like those Biden extended to members of the Jan. 6 committee and others, are largely without precedent—apart from President Gerald Ford's pardon of Richard Nixon following Watergate.
Additionally, because Cheney is immune from prosecution under Biden’s pardon, accepting it could complicate her ability to refuse to testify before a grand jury or Congress on subjects covered by the pardon, as she wouldn’t have the Fifth Amendment protection against self-incrimination regarding those topics. The pardon also wouldn’t shield her from any subsequent, unfounded criminal accusations of perjury or obstruction related to that testimony.
Trump could initiate criminal investigations into unrelated areas of Cheney’s life, such as her tax records or banking transactions, which would fall outside the pardon’s reach. More concerning, as former federal prosecutor Glenn Kirschner noted, "pursuant to his core constitutional powers, Trump could order his military leadership or his Justice Department officials to summarily and unlawfully detain Cheney . . . and Trump couldn’t be prosecuted" under the Supreme Court's ruling granting presidents criminal immunity in Trump v. U.S.
If Trump carried through on prosecuting Cheney for unrelated actions, she might choose to claim selective, malicious, or vindictive prosecution through either a criminal defense or a civil lawsuit.
Neither of these options would be simple.
**Selective Prosecution Defense**
One of the few defenses available against a malicious inquiry is to assert "selective prosecution." In Cheney’s case, should she face criminal charges, she could seek to have the case dismissed by arguing selective prosecution based on Trump’s public threats.
A selective prosecution defense is grounded in the due process clause of the Fifth Amendment, which promises equal protection under the law. If a prosecutor pursues charges based on race, religion, or political affiliation, or in response to a protected right, a selective prosecution defense could lead to dismissal.
But this defense comes with significant limitations. The Supreme Court has long held that “so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion.” Prosecutors are granted this latitude as they act on behalf of the president, who has the constitutional mandate to “take care that the laws be faithfully executed.”
Cheney might argue that Trump’s public attacks on her severely compromised her right to due process by undermining the presumption of innocence and biasing potential jurors against her. The intensity and specificity of Trump’s rhetoric are unprecedented for someone now prominently positioned in the federal justice system. This is one reason the DOJ has guidelines discouraging prosecutors from discussing ongoing cases.
The challenge lies in the fact that as long as Trump’s DOJ can present some evidence suggesting a reasonable belief that Cheney committed a crime—regardless of its validity, significance, or relevance—it may not matter if the prosecution was primarily motivated by revenge.
In 1996, the Supreme Court in United States v. Armstrong affirmed the strong presumption that prosecutors act “regularly” or in good faith. To overcome this presumption, the defendant must present evidence of a prosecutor’s discriminatory intent that is “clear and convincing” enough to demonstrate a “practical denial of equal protection of the law.” Cheney could argue that Trump’s public threats against her are direct evidence of vindictiveness, particularly if others with similar circumstances were not subject to prosecution.
However, to date, there are no documented cases that mirror this situation—because no prior president has explicitly vowed to use the Justice Department for personal revenge, nor has any secured an election under such a promise. Any court deliberating on a claim that Trump’s rhetoric incited a vindictive prosecution would address numerous legal questions for the first time.
Should Cheney find success in lower courts that is appealed to a Supreme Court that leans pro-Trump with a 6-3 majority, she would likely encounter substantial obstacles given the Court's recent expansion of executive power following a criminal immunity ruling. That decision was predicated on the idea that presidents require unfettered discretion to fulfill their duties, even if that means committing illegal acts. In relation to vindictive prosecution claims, the Armstrong Court cautioned that “examining the basis of a prosecution delays the criminal proceeding, threatens to chill law enforcement by subjecting the prosecutor’s motives and decision-making to outside inquiry, and may undermine prosecutorial effectiveness by revealing the government’s enforcement policy.”
For less well-known individuals who cannot reference public remarks by Trump directly calling them out, the evidentiary bar would be even higher. They would require the government to demonstrate that the choice to prosecute was rooted in animosity rather than factual justification—an analysis that hinges on an initial legal process referred to as “discovery.” This primary step is challenging to achieve because the government possesses exclusive access to exculpatory evidence relevant to its decision to prosecute. As the U.S. Court of Appeals for the 9th Circuit articulated, courts are often reluctant to provide defendants access to such internal materials, aiming to “discourage fishing expeditions, protect legitimate prosecutorial discretion, [and] safeguard government investigative records.” Thus, defendants lacking prominence, unlike Cheney, must gather fragmented public information to sufficiently raise doubts about the motivations of the government, which would require a judge's approval for discovery.
Furthermore, the prohibition against “fishing expeditions” applies solely to defendants. The government wields significant legal tools, including subpoenas, grand juries, surveillance authority, and forensic techniques that are beyond the reach of ordinary defendants.
Therefore, Trump's assertion that his attorney general could discover charges against his enemies—regardless of their actual guilt—should be taken seriously. The Supreme Court's right-leaning justices are positioned to support him.
**Civil Lawsuits**
The civil route offers even less promise.
If a target like Cheney were to succeed in having an indictment quashed or to prevail in an arduous jury trial, she could pursue a civil lawsuit for damages or to block future retaliatory prosecutions, arguing that the government acted against her for her political beliefs and associations in violation of the First Amendment.
However, the leading case governing such vindictive prosecution suits is the 2006 Supreme Court ruling in Hartman v. Moore. As in the criminal context, the Court has leaned in favor of the government; as long as prosecutors provide some evidence backing their charges, their motives for retaliation are likely considered irrelevant.
In Hartman, the plaintiff claimed the government prosecuted him "in retaliation for criticism of the Postal Service," including testimony before Congressional committees. The trial court dismissed the charges for lack of evidence. The government then contended it should still prevail in the civil case based on the existence of probable cause for the criminal case, despite its failure at trial. The lower courts expressed some sympathy for the plaintiff’s retaliatory argument. Still, in a reversal similar to Armstrong, the Supreme Court favored the government.
The rationale stemmed from the extensive deference traditionally afforded to prosecutors. Cheney cannot sue the prosecutors for their decision to prosecute, as they enjoy absolute immunity, a principle underscored in Imbler v. Pachtman—the alternative, the Court noted, “would prevent the vigorous and fearless performance of the prosecutor’s duty.” This immunity has even been extended to prosecutors who utilize fabricated evidence or coerce witnesses to lie. The Court acknowledged that absolute immunity “does leave the genuinely wronged defendant without civil redress against a prosecutor whose malicious or dishonest action deprives him of liberty.” Regardless, the Court favored the prosecutor.
Following Hartman, the plaintiff must instead pursue legal action against someone further up the chain of command "who may have influenced the prosecutorial decision but did not himself make it." Thus, Cheney’s civil claim must be directed at "successful retaliatory inducement to prosecute.” To succeed in such a claim, she would need to specify an FBI agent or bureaucrat and demonstrate they "induced the prosecutor to bring charges that would not have been initiated without his urging."
Given Trump’s public remarks targeting her, Cheney might attempt to hold Trump himself accountable as the inducer. Yet, he would likely invoke the broad immunity established in Trump v. U.S.—which suggested any inquiry into a president’s motives regarding their Article II powers is impermissible—and potentially thwart that line of argument. Since 1982, presidents have also enjoyed unique immunity from civil liability, as established in Nixon v. Fitzgerald, so Trump's threats of prosecution could be deemed beyond legal scrutiny. To connect the dots to lower-level officials, Cheney would need to convince a court to allow her access to discovery, which hinges on demonstrating that Trump's directives for her prosecution were explicit rather than implied—something contrary to his typical style.
Even if Cheney could identify another official as the one who induced a retaliatory prosecution, she would still confront the presumption that prosecutors operate with "regularity.” If she manages to challenge the criminal case against her effectively, she could begin to show that there was no probable cause for the case. Even this might fall short, however. If she could present a public admission from the prosecutor acknowledging their "retaliatory thinking," or uncover evidence that the prosecutor was merely a rubber stamp for investigative agencies, that might help her argument. Nonetheless, such evidence is notoriously difficult to uncover—if she is fortunate enough to find it, the Supreme Court could still dismiss her claim.
As a sitting member of Congress, Cheney is in a relatively better position than most Trump targets to contest vindictive prosecutions, as she holds some degree of immunity against civil suits. However, such immunity does not extend to the criminal liability protections given to Trump in Trump v. U.S. The Speech and Debate Clause of Article I, which grants legislative immunity, has explicit exceptions for "felonies." While prosecuting a prosecutor for actions taken in their official capacity is exceedingly rare, it is not without precedent.
Given Trump’s numerous public declarations of intended retribution, one may think sufficient evidence exists to stop any vindictive prosecutions prior to their initiation. However, achieving this would require judges willing to broaden the narrow parameters set by the Supreme Court for vindictive prosecution claims—and justices open to upholding such lower court decisions. For many individuals atop Trump’s enemies list, including confidential grand jury witnesses whose identities were disclosed to Trump immediately after his inauguration, they face a daunting landscape influenced by a Supreme Court that was tailored for traditionally administered Justice Departments.
Those days are now behind us. Before his presidency, a presumption of prosecutorial "regularity" may have seemed reasonable. But now that Trump is the first individual in U.S. history to achieve the presidency while promising criminal retribution, the legal system appears ill-equipped to handle what lies ahead.
Navid Kalantari contributed to this report for TROIB News
Critics argue that Trump’s threats may be largely empty. They believe the U.S. legal system, characterized by life-tenured judges, juries, constitutional rights, burdens of proof, rules of evidence, and appeals, will ultimately prevent vengeful prosecutions.
However, for those on Trump's list of perceived enemies, the legal landscape is remarkably unfavorable. There is essentially no effective legal recourse available for someone under investigation to contest vindictive or unfounded inquiries, and the legal standards governing retaliatory prosecutions are minimal. This framework was established under the belief that prosecutors generally act in good faith. Trump's threats have fundamentally challenged that assumption.
Trump has already signaled a readiness to leverage the justice system to favor his allies and target his opponents. He has issued pardons to over 1,500 individuals connected to the January 6, 2021 insurrection, and dismissed more than a dozen officials in the Justice Department involved in former Special Counsel Jack Smith’s probes against him.
Some of Trump’s notable targets may find temporary relief from Joe Biden’s preemptive pardons granted during his final days in office. However, Biden could not include every possible target of retribution, leaving many individuals—known and unknown—including Smith, Rep. Nancy Pelosi, career DOJ prosecutors, other executive branch members, judges, and former military officials vulnerable. During his presidential campaign, Trump expanded his targets to include private citizens like journalists and even individuals involved in the Georgia grand jury process, as well as potential political rivals: “If I win and somebody wants to run against me, I call my attorney general. I say, ‘Listen, indict him.’”
The Supreme Court has generally established significant barriers to contesting a prosecutor's decision as harassment or abuse of power, maintaining that prosecutors are entitled to a presumption of good faith.
Here are three reasons the law is notably skewed against individuals who find themselves within Trump’s legal sights.
**The Limits of Pardons**
Hypothetically, if someone like former Rep. Liz Cheney obtained a preemptive pardon for "any offenses against the United States which they may have committed or taken part in arising from or in any manner related to the activities or subject matter of the Select Committee to Investigate the January 6th Attack on the United States Capitol," she might successfully argue for dismissal if Attorney General Pam Bondi were to charge her related to the committee’s work.
Yet, the pardon doesn’t protect Cheney from subpoenas and other burdens of an investigation. If served a subpoena for testimony or documents, she would need to seek a court’s protection. The Supreme Court has never ruled on whether a pardon can annul a subpoena. Preemptive pardons anticipating future inquiries, like those Biden extended to members of the Jan. 6 committee and others, are largely without precedent—apart from President Gerald Ford's pardon of Richard Nixon following Watergate.
Additionally, because Cheney is immune from prosecution under Biden’s pardon, accepting it could complicate her ability to refuse to testify before a grand jury or Congress on subjects covered by the pardon, as she wouldn’t have the Fifth Amendment protection against self-incrimination regarding those topics. The pardon also wouldn’t shield her from any subsequent, unfounded criminal accusations of perjury or obstruction related to that testimony.
Trump could initiate criminal investigations into unrelated areas of Cheney’s life, such as her tax records or banking transactions, which would fall outside the pardon’s reach. More concerning, as former federal prosecutor Glenn Kirschner noted, "pursuant to his core constitutional powers, Trump could order his military leadership or his Justice Department officials to summarily and unlawfully detain Cheney . . . and Trump couldn’t be prosecuted" under the Supreme Court's ruling granting presidents criminal immunity in Trump v. U.S.
If Trump carried through on prosecuting Cheney for unrelated actions, she might choose to claim selective, malicious, or vindictive prosecution through either a criminal defense or a civil lawsuit.
Neither of these options would be simple.
**Selective Prosecution Defense**
One of the few defenses available against a malicious inquiry is to assert "selective prosecution." In Cheney’s case, should she face criminal charges, she could seek to have the case dismissed by arguing selective prosecution based on Trump’s public threats.
A selective prosecution defense is grounded in the due process clause of the Fifth Amendment, which promises equal protection under the law. If a prosecutor pursues charges based on race, religion, or political affiliation, or in response to a protected right, a selective prosecution defense could lead to dismissal.
But this defense comes with significant limitations. The Supreme Court has long held that “so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion.” Prosecutors are granted this latitude as they act on behalf of the president, who has the constitutional mandate to “take care that the laws be faithfully executed.”
Cheney might argue that Trump’s public attacks on her severely compromised her right to due process by undermining the presumption of innocence and biasing potential jurors against her. The intensity and specificity of Trump’s rhetoric are unprecedented for someone now prominently positioned in the federal justice system. This is one reason the DOJ has guidelines discouraging prosecutors from discussing ongoing cases.
The challenge lies in the fact that as long as Trump’s DOJ can present some evidence suggesting a reasonable belief that Cheney committed a crime—regardless of its validity, significance, or relevance—it may not matter if the prosecution was primarily motivated by revenge.
In 1996, the Supreme Court in United States v. Armstrong affirmed the strong presumption that prosecutors act “regularly” or in good faith. To overcome this presumption, the defendant must present evidence of a prosecutor’s discriminatory intent that is “clear and convincing” enough to demonstrate a “practical denial of equal protection of the law.” Cheney could argue that Trump’s public threats against her are direct evidence of vindictiveness, particularly if others with similar circumstances were not subject to prosecution.
However, to date, there are no documented cases that mirror this situation—because no prior president has explicitly vowed to use the Justice Department for personal revenge, nor has any secured an election under such a promise. Any court deliberating on a claim that Trump’s rhetoric incited a vindictive prosecution would address numerous legal questions for the first time.
Should Cheney find success in lower courts that is appealed to a Supreme Court that leans pro-Trump with a 6-3 majority, she would likely encounter substantial obstacles given the Court's recent expansion of executive power following a criminal immunity ruling. That decision was predicated on the idea that presidents require unfettered discretion to fulfill their duties, even if that means committing illegal acts. In relation to vindictive prosecution claims, the Armstrong Court cautioned that “examining the basis of a prosecution delays the criminal proceeding, threatens to chill law enforcement by subjecting the prosecutor’s motives and decision-making to outside inquiry, and may undermine prosecutorial effectiveness by revealing the government’s enforcement policy.”
For less well-known individuals who cannot reference public remarks by Trump directly calling them out, the evidentiary bar would be even higher. They would require the government to demonstrate that the choice to prosecute was rooted in animosity rather than factual justification—an analysis that hinges on an initial legal process referred to as “discovery.” This primary step is challenging to achieve because the government possesses exclusive access to exculpatory evidence relevant to its decision to prosecute. As the U.S. Court of Appeals for the 9th Circuit articulated, courts are often reluctant to provide defendants access to such internal materials, aiming to “discourage fishing expeditions, protect legitimate prosecutorial discretion, [and] safeguard government investigative records.” Thus, defendants lacking prominence, unlike Cheney, must gather fragmented public information to sufficiently raise doubts about the motivations of the government, which would require a judge's approval for discovery.
Furthermore, the prohibition against “fishing expeditions” applies solely to defendants. The government wields significant legal tools, including subpoenas, grand juries, surveillance authority, and forensic techniques that are beyond the reach of ordinary defendants.
Therefore, Trump's assertion that his attorney general could discover charges against his enemies—regardless of their actual guilt—should be taken seriously. The Supreme Court's right-leaning justices are positioned to support him.
**Civil Lawsuits**
The civil route offers even less promise.
If a target like Cheney were to succeed in having an indictment quashed or to prevail in an arduous jury trial, she could pursue a civil lawsuit for damages or to block future retaliatory prosecutions, arguing that the government acted against her for her political beliefs and associations in violation of the First Amendment.
However, the leading case governing such vindictive prosecution suits is the 2006 Supreme Court ruling in Hartman v. Moore. As in the criminal context, the Court has leaned in favor of the government; as long as prosecutors provide some evidence backing their charges, their motives for retaliation are likely considered irrelevant.
In Hartman, the plaintiff claimed the government prosecuted him "in retaliation for criticism of the Postal Service," including testimony before Congressional committees. The trial court dismissed the charges for lack of evidence. The government then contended it should still prevail in the civil case based on the existence of probable cause for the criminal case, despite its failure at trial. The lower courts expressed some sympathy for the plaintiff’s retaliatory argument. Still, in a reversal similar to Armstrong, the Supreme Court favored the government.
The rationale stemmed from the extensive deference traditionally afforded to prosecutors. Cheney cannot sue the prosecutors for their decision to prosecute, as they enjoy absolute immunity, a principle underscored in Imbler v. Pachtman—the alternative, the Court noted, “would prevent the vigorous and fearless performance of the prosecutor’s duty.” This immunity has even been extended to prosecutors who utilize fabricated evidence or coerce witnesses to lie. The Court acknowledged that absolute immunity “does leave the genuinely wronged defendant without civil redress against a prosecutor whose malicious or dishonest action deprives him of liberty.” Regardless, the Court favored the prosecutor.
Following Hartman, the plaintiff must instead pursue legal action against someone further up the chain of command "who may have influenced the prosecutorial decision but did not himself make it." Thus, Cheney’s civil claim must be directed at "successful retaliatory inducement to prosecute.” To succeed in such a claim, she would need to specify an FBI agent or bureaucrat and demonstrate they "induced the prosecutor to bring charges that would not have been initiated without his urging."
Given Trump’s public remarks targeting her, Cheney might attempt to hold Trump himself accountable as the inducer. Yet, he would likely invoke the broad immunity established in Trump v. U.S.—which suggested any inquiry into a president’s motives regarding their Article II powers is impermissible—and potentially thwart that line of argument. Since 1982, presidents have also enjoyed unique immunity from civil liability, as established in Nixon v. Fitzgerald, so Trump's threats of prosecution could be deemed beyond legal scrutiny. To connect the dots to lower-level officials, Cheney would need to convince a court to allow her access to discovery, which hinges on demonstrating that Trump's directives for her prosecution were explicit rather than implied—something contrary to his typical style.
Even if Cheney could identify another official as the one who induced a retaliatory prosecution, she would still confront the presumption that prosecutors operate with "regularity.” If she manages to challenge the criminal case against her effectively, she could begin to show that there was no probable cause for the case. Even this might fall short, however. If she could present a public admission from the prosecutor acknowledging their "retaliatory thinking," or uncover evidence that the prosecutor was merely a rubber stamp for investigative agencies, that might help her argument. Nonetheless, such evidence is notoriously difficult to uncover—if she is fortunate enough to find it, the Supreme Court could still dismiss her claim.
As a sitting member of Congress, Cheney is in a relatively better position than most Trump targets to contest vindictive prosecutions, as she holds some degree of immunity against civil suits. However, such immunity does not extend to the criminal liability protections given to Trump in Trump v. U.S. The Speech and Debate Clause of Article I, which grants legislative immunity, has explicit exceptions for "felonies." While prosecuting a prosecutor for actions taken in their official capacity is exceedingly rare, it is not without precedent.
Given Trump’s numerous public declarations of intended retribution, one may think sufficient evidence exists to stop any vindictive prosecutions prior to their initiation. However, achieving this would require judges willing to broaden the narrow parameters set by the Supreme Court for vindictive prosecution claims—and justices open to upholding such lower court decisions. For many individuals atop Trump’s enemies list, including confidential grand jury witnesses whose identities were disclosed to Trump immediately after his inauguration, they face a daunting landscape influenced by a Supreme Court that was tailored for traditionally administered Justice Departments.
Those days are now behind us. Before his presidency, a presumption of prosecutorial "regularity" may have seemed reasonable. But now that Trump is the first individual in U.S. history to achieve the presidency while promising criminal retribution, the legal system appears ill-equipped to handle what lies ahead.
Navid Kalantari contributed to this report for TROIB News
