If Trump and his allies (Bondi and Patel) pursue criminal prosecutions without probable cause, they might face civil actions for malicious prosecution

Sen. Mazie Hirono and Pam Bondi (C-SPAN)

Pam Bondi, Donald Trump's choice to be attorney general of the United States, answered a straightforward question yesterday in a roundabout way that suggests she would not feel bound  by the rule of law if confirmed to the position. Her answer left the impression that she is loyal to Trump but not necessarily to the U.S. Constitution, statutes, high-court opinions, or other forms of long-settled law. That might be good for Trump, but it likely would not be good for everyday Americans and our already tattered justice system.

Malcolm Ferguson, of The New Republic, describes the exchange in Bondi's confirmation that caused her to provide more insight on a sensitive subject than she probably intended. Under the headline "Trump’s Attorney General Pick Admits There Is an Enemy List After All; Pam Bondi had a very revealing exchange in her confirmation hearing about Trump’s plans to go after the “enemy within,” Ferguson writes:

Pam Bondi, Trump’s attorney general pick, revealed in her confirmation hearing Wednesday that there probably is an enemies list after all.

When asked by Senator Mazie Hirono (D-HI) about specific people who have been targeted by Republicans in the past, Bondi refused to say she wouldn’t use the Justice Department against them.

“On Fox News, you said ... ‘The prosecutors will be prosecuted, the bad ones. The investigators will be investigated,’” Hirono said. “Is Jack Smith one of those bad prosecutors that you will prosecute as A.G.?”

Bondi pushed back, stating that she wouldn’t answer “hypotheticals.”

“I’m just asking whether you would consider Jack Smith to be one of the people,” Hirono responded. “How about Liz Cheney? How about Merrick Garland?”

Bondi would not answer—revealing that those individuals are very likely among the top targets of a Trump DOJ.

Earlier in the hearing, Bondi refused to disavow Trump’s FBI pick Kash Patel’s past comments on compiling an “enemies list.”

“Would you have hired someone to the Florida Attorney General’s Office who you knew had an enemies list?” Senator Sheldon Whitehouse asked Bondi.

“Senator, to cut to the chase, you’re clearly talking about Kash Patel,” Bondi said. “I don’t believe he has an enemies list. He made a quote on TV, which I have not heard.… He has great experience in the intel department and Department of Defense. I have known Kash, and I believe that Kash is the right person at this time for this job.

“There will never be an enemies list within the Department of Justice,” she added, a disingenuous comment given the full-throated defense of Patel.

How brazen has Patel been about his enemies list? He wrote about it in is own book, Ferguson reports:

This list comes from Patel’s own 2023 book, Government Gangsters. While he does not include a literal hit list in the book, he does attach an appendix titled, “Members of the Executive Branch Deep State.” Patel refers to this “deep state” as “a cabal of unelected tyrants” and “the most dangerous threat to our democracy” in other sections of the book. The list includes names like Bill Barr, Joe Biden, Lloyd Austin, Sally Yates, Kamala Harris, and 55 other people whom Trump considers political opponents.

Bottom line? Bondi says she supports Patel, who in turn, makes it clear that he intends to act outside the rule of law. And the law, in this instance, is simple: A criminal investigation/prosecution can be launched only upon a showing of probable cause that the defendant committed a specific crime. If the Trump administration pursues prosecutions that have no support in probable cause, Bondi, Patel, and Trump himself could find themselves in serious legal trouble -- likely in the form of actions for malicious prosecution, which can cause a wallet or purse to become considerably lighter. And even Trump is not immune from such civil claims while a sitting president.

If Bondi, Patel, and Trump have not given thought to the downsides of bringing criminal cases based on "ememies lists," I would suggest they start thinking about it now -- because it is a terrible, and flagrantly un-American, idea.