Opinion - Trump literally wants these 2 men arrested for criticizing him
By presidential edict, President Trump has singled out for criminal prosecution two people who worked in his first administration and spoke out publicly against him.
The first is Chris Krebs, chief of the Cybersecurity and Infrastructure Security Agency from 2018 until Trump fired him on Nov. 17, 2020. Krebs publicly contradicted Trump’s false claim that the 2020 presidential election was stolen. Trump has branded Krebs “a significant bad-faith actor” who poses grave “risks” to the American public.
The second is Miles Taylor, a former Department of Homeland Security employee who publicly criticized Trump in an anonymous book and various media appearances. According to Trump, Taylor, like Krebs poses “risks” to the U.S. and is also a “bad-faith actor” (though not a “significant” bad-faith actor like Krebs) who “stoked dissension” with his public commentary.
In a separate set of orders, Trump directed Attorney General Pam Bondi to open criminal investigations of Krebs and Taylor. Such investigations are selective and nonsensical.
Once upon a time, we had a Justice Department that acted independently of the president when it came to particular cases. Not any more.
Notably absent from Trump’s orders is any plausible theory that either individual committed a federal crime. After all, it is no federal crime to be a “bad-faith actor” or “significant bad-faith actor,” or to “stoke dissension” or even to be a “wise guy,” the words Trump chose to vilify Krebs from the Oval Office. Krebs also stung Trump as a key witness for the Jan. 6 select committee, describing how he worked to secure the 2020 election, rebut conspiracy theories and shore up voters’ confidence in the results.
When the legal fixer and Trump mentor Roy Cohn complained that my old boss, the legendary prosecutor Robert M. Morgenthau, was pursuing a vendetta against him, Morgenthau retorted, “A man is not immune from prosecution just because a United States attorney happens not to like him.”
What Morgenthau meant was that just because a prosecutor doesn’t like drug dealers or mob bosses or corrupt public officials, he prosecutes them anyway — not because he dislikes them, but because he believes they are guilty of criminal conduct.
Selective prosecution is a cancer on the justice system. When Robert Jackson (later a Supreme Court justice) was attorney general, he denounced selective prosecutions in a famous 1940 speech to U.S. attorneys at the Justice Department.
“What every prosecutor is practically required to do is to select the cases for prosecution and to select those in which the offense is the most flagrant, the public harm the greatest, and the proof the most certain,” Jackson wrote. “If the prosecutor is obliged to choose his cases, it follows that he can choose his defendants … It is in this realm — in which the prosecutor picks some person whom he dislikes or desires to embarrass or selects some group of unpopular persons and then looks for an offense, that the greatest danger of abuse of prosecuting power lies. It is here that law enforcement becomes personal, and the real crime becomes that of being unpopular with the predominant or governing group, being attached to the wrong political views.”
Using selective prosecution as a defense rarely succeeds because prosecutors typically don’t take an ad in the newspaper explaining the personal or political animus behind a particular case. But here such an ad would be unnecessary. The telltale evidence, signed by the president on White House letterhead, speaks for itself, and is such that a judge could hardly ignore it. After a mass purge against big law firms, universities and media outlets calculated to throttle criticism, Trump now wants to prosecute individual private citizens for the dissenting views they expressed.
So, the Krebs and Taylor cases sail over to Trump’s avenging angel Bondi — without a scintilla of evidence on which to believe a crime might have been committed. Bondi is in the tank for Trump. They go back a long way in Florida where, as attorney general, she declined to sue him over his Trump University fraud. Even former Rep. Matt Gaetz (R-Fla.), at one point selected for Bondi’s job before withdrawing, might have hesitated to weaponize the Justice Department as an instrument of political vindictiveness against two renegade public officials. But Bondi seems unlikely ever to question the orders of her leader.
The old saw is that a grand jury is such a rubber stamp for the prosecutor that he or she can convince one to indict a ham sandwich. If Bondi can get a grand jury to indict Krebs or Taylor, the defendants would undoubtedly have a good motion to dismiss the cases for selective prosecution based on Trump’s own bloviating, a dead giveaway of his personal and political motives for ordering Bondi to investigate his political enemies.
Trump’s modus operandi is to threaten his opponents with lawsuits and criminal prosecutions, and until now his bark has been worse than his bite. But this time, he may mean it. And Bondi is unlikely to fob him off. She may have taken an oath to support the Constitution, but she has made clear her belief that what is good for Trump is good for the Constitution.
Selective prosecutions are destructive of the rule of law. Recall the words of Martin Niemöller, the Lutheran pastor in Nazi Germany, whose “First they came …” quote echoes through the decades.
Who will speak for Krebs or Taylor? Will anyone take their case pro bono? Certainly not Big Law. They have only the courage of their retainers. Meanwhile, if you lament what we can do to save our democracy, the rhetorical question may not be so inapt.
James D. Zirin, author and legal analyst, is a former federal prosecutor in New York’s Southern District. He is also the host of the public television talk show and podcast Conversations with Jim Zirin.
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