Dem
51
GOP
49
Some Democrats are keenly aware of Maya Angelou's famous line: "When people show you who they really are, believe them the first time." Donald Trump has repeatedly said that he will arrest and imprison the members of the Jan. 6 House Committee and there is no reason to believe he was kidding when he once tweeted about Liz Cheney: "She should go to Jail along with the rest of the Unselect Committee!" Impeachment managers for both of Trump's impeachments are likely to be targeted as well. It shouldn't be hard for him to find an AG who will do that.
High-profile Democrats are already worried. Soon-to-be-Sen. Adam Schiff (D-CA) said: "My wife and I have had conversations about what life would look like if the worst happened. You can't avoid the conversations about 'What if?' And I have to think about my own personal safety." Rep. Zoe Lofgren (D-CA), who was also on the Jan. 6 panel, said: "I take that lesson to heart. When he says various things, I think that's what he means he'll do."
Art. I, Sec. 6, Clause 1 of the Constitution reads:
The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.
What about during a congressional recess? Could the AG order the FBI to arrest congressional Democrats when they are on a break? Or what if Trump orders the AG to have the Democrats arrested and put in jail while Congress is in session, Constitution or no Constitution? Maybe a few months later the Supreme Court will rule that the arrest was illegal, but by then the person will already have been punished.
Going after witnesses who testified before the Jan. 6 committee will be child's play since they don't have a constitutional leg to stand on. Maybe the judge who gets the case will be so incensed that he or she throws it out immediately, but we have already seen how Trump-appointed judges sometimes behave, Aileen Cannon being the poster girl here.
Even if the people Trump has arrested are sprung fairly quickly, they will need to hire expensive lawyers and the whole process will be traumatizing. It will certainly inhibit many people from speaking out against Trump, even when he clearly breaks the law.
If the Democrats capture the House, one thing that might inhibit the AG from arresting people willy-nilly is that doing so will almost certainly get that AG impeached. If the Democrats also hold the Senate, there will be a full-blown trial with law professors and former federal prosecutors denouncing the AG as a criminal who needs to be prosecuted in due course of time. While the two-thirds vote for conviction might not be there, public opinion and the history books won't be kind to the AG, so the AG in question might take a chance and refuse to follow Trump's orders.
Also, if the Democrats hold the Senate, during the confirmation process they may ask if the nominee is willing to state under oath that Trump's enemies will not be arrested just because Trump wants it. If the candidate refuses, the consequence could be rejection by the Senate. If the candidate says that won't happen and does it anyway later, that could be a basis for a subsequent criminal charge of lying to Congress. Of course, if the Republicans control both chambers, all bets are off. (V)