Note from Elie 4/11: Trump Threatens to Imprison Critics — and Now He’s Got the AG To Do It
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Hey everyone, Ellie here, wishing you a happy Friday. Before we get to this week's column, I just want to share with you something that happened in one of my other jobs. So some of you may know, I teach at Rutgers University. I teach undergraduates, same school I went to 30 some years ago. I teach a class on prosecution and then one on national security and intel.

But I also started this program this current semester where we, meaning my students and I, are working directly with the office of our state's governor, Phil Murphy, as he and his office go through hundreds upon hundreds of pardon applications, clemency applications. It's a new initiative.

that the governor launched last year, and now we are helping the governor's office with it. And let me tell you, it's been such a remarkable and rewarding experience to see these students, by the way, all of whom are superstars, many or all of whom are headed for law school, for better or worse. I'm sure they'll all do great.

they are getting their hands on real world criminal files and writing up summaries about real world criminal cases that are then being used to make real world decisions that have huge consequences. And for students who've sort of been schooled largely on the theoretical, you all know I don't love the theoretical as much as the practical,

It's been really awesome to watch them learn about the complexities of a real case. And now they got the lingo down. They're going, hey, I haven't seen the rap sheet. And, you know, it was a third degree and not a second degree. And I love hearing them talk like real world prosecutors. Anyway, this week, Governor Murphy came to our campus in New Brunswick and made an announcement about the next batch

of grants of clemency, of pardons and commutations he had given out. There were several recipients of pardons and commutations at the event. So the students got to talk to the governor who was very generous with them, gave them his time and attention. They got to meet and see some of the people who are receiving clemency here in the state of New Jersey. My only point there is to sound a note

of optimism. In a week, that was not necessarily easy to find optimism, but when I see these students, I know that their futures are bright and I think we can all take solace that our futures, our future as a country, a nation of laws, there's a lot of promise still ahead. Okay.

Anyway, hope that lifted you a little bit on a Friday morning. Now we're going to get into less uplifting stuff, the subject of the column this week. But hey, this is what's going on in our country right now. As always, I appreciate you listening. Send me any thoughts, questions, or comments to lettersatcafe.com.

Donald Trump's presidential payback tour rages on, and now it's personal. It's one thing to target multi-billion dollar law firms, universities, and media outlets for organizational retribution. Those efforts aimed at stifling and punishing any criticism or dissent are reprehensible in their own right. But now Trump is going after individual private citizens, using the might of the executive branch to potentially throw his detractors in prison.

In a pair of official proclamations issued this week, rendered no less unhinged by the use of official fonts and White House letterhead, Trump identifies two targets who worked in the federal government during his first tenure and dared to speak out publicly against him. First up, Chris Krebs, who led the Cybersecurity and Infrastructure Security Agency from 2018 to 2020 and made headlines when he publicly contradicted Trump's false claim

that the 2020 presidential election was stolen. For this act of heretical truth-telling, Trump labels Krebs, quote, a significant bad faith actor, whatever the hell that means, who poses grave, quote, risks to the American public.

And then there's Miles Taylor, a former Department of Homeland Security official who publicly criticized the president in an anonymous book and various media appearances. Taylor, like Krebs, purportedly poses, quote, risks to the United States, is a, quote, bad faith actor, end quote, though apparently not a significant one like Krebs, and, quote, stoked dissension with his public commentary.

Are you scared? Don't you fear the risks? That's in scare quotes, posed by these two monsters. True to the form he is displayed when going after disfavored law firms, Trump hits below the belt.

The president orders security clearances stripped not only from Krebs and Taylor, but also from everyone who works with them. Krebs at a private cybersecurity firm, Taylor at the University of Pennsylvania. He's punishing his targets, plus their employers and colleagues. First Amendment freedom of association, be darned.

It gets worse, though. In a separate set of orders, Trump directed the Attorney General of the United States to open criminal investigations of Krebs and Taylor. Notably absent from the orders is any plausible notion that either might have committed a federal crime. This hardly needs to be said, but it's not

a federal crime to be a bad faith actor, to stoke dissension, or even to be a quote, wise guy, as Trump called Krebs from the Oval Office. Now, the next move is Pam Bondi's.

And we know how this will go. Any reasonable, ethical attorney general would follow the bedrock principle that a prosecutor must have what we call predication, meaning some kernel of fact on which to believe a crime might have been committed in order to open a criminal investigation. The bar is low, but it serves the vital purpose of preventing precisely the baseless retributive inquests that Trump has now ordered up.

In observance of this foundational precept, even Bill Barr, the subject of sharp criticism in my first book, Hatchet Man, generally ignored Trump's public pleas for the arrests of Barack Obama and Joe Biden and many others. Like the exhausted parent of an unruly toddler, Barr would mostly sit back and let the tantrum pass.

Don't count on Bondi taking the same course of passive resistance to the president. She's already shown us her true colors and their whatever shade Trump pleases. For example, despite the distinct possibility of criminality by top administration officials around the Signal scandal, remember that one? The AG refused even to investigate. Instead, she decreed after zero inquiry with zero evidence that

That information about attack plans was somehow not classified and that nobody had acted recklessly. Case closed, no inquiry needed. Bondi no longer deserves the benefit of the doubt. She's in the bag for Trump. The question now is whether she'll cross that line that even Barr, her crooked predecessor, would not and use the Justice Department's staggering investigative power as an offensive weapon.

Even if DOJ investigates but concludes it cannot bring a criminal charge, the threat to Krebs and Taylor is very real. Any criminal inquiry takes an enormous toll on its subject. Subpoenas fly, friends and colleagues get pulled into the grand jury, phones get seized and searched, legal costs mount, professional reputations suffer, personal ties fray. Ask anyone who's been investigated by the Justice Department but not indicted, they'll tell you it's still a nightmare. Now,

Now, if Bondi does somehow convince a grand jury to indict somebody for something, Trump has unwittingly handed both Krebs and Taylor a potent defense, selective prosecution, which applies where an individual has been singled out for prosecution for improper purposes.

Exhibit A for the defense would be Trump's own grand proclamations, which openly confess to his personal and political motives for prosecution. Selective prosecution defenses rarely succeed, often because prosecutors typically don't commit their improper motives to paper. But this would be the rare case where the evidence is so plain, it's on White House letterhead signed by the president, that a judge could hardly overlook it.

Trump has long made a habit of threatening his opponents with criminal prosecution through social media posts and by spontaneous outbursts from the lectern. Until now, it was mostly bluster, a public form of scream therapy for the capricious commander-in-chief. But now it's in writing from the president to the attorney general who typically jumps to attention to serve whatever suits the boss. Prosecutorial standards be darned. Trump's dark fantasies are coming to life.

Thanks for listening, everyone. Stay safe and stay informed.