MICHEL MARTIN, HOST:
Former FBI director James Comey and former CIA director James (ph) Brennan are under criminal investigation by the Department of Justice. This is according to reports from Fox News, The Washington Post and other outlets. NPR has not independently verified that reporting. Fox says the probes are connected to their association with Robert Mueller's special counsel investigation, which found that Russia did try to interfere in the 2016 election, but did not find that the Trump campaign conspired or coordinated with Russia.
When asked about the Comey and Brennan investigations Wednesday, Trump said he only knew about the media reports, but he went on to call Comey and Brennan, quote, "truly bad people and dishonest people," unquote, and saying, quote, "maybe they have to pay a price for that," unquote. Now, during his campaign to return to office, Mr. Trump made it clear that he intended to pursue retribution against his critics, but we wanted to ask about whether there are any limits to this. So we've called legal scholar Kim Wehle, who teaches law at the University of Baltimore and researches and writes about executive power. Good morning, Professor. Thanks so much for joining us once again.
KIM WEHLE: Great to be here.
MARTIN: So we often turn to you for your opinion on constitutional questions. Are there constitutional limits on a president's power or on a presidential administration when it comes to opening criminal investigations into perceived adversaries or critics?
WEHLE: Nothing that has any real teeth to it. The president gets, through the Justice Department, to make decisions on whom to prosecute, and generally it requires probable cause, you know, basic - enough evidence that can justify an investigation. So if at the same time, there is a vindictive motive, that's very hard to prove under the law, to justify stopping or getting rid of a bogus criminal indictment.
MARTIN: Now, you've written about this recently, and your basic point is that there are few guardrails. Why are there so few guardrails?
WEHLE: The law really assumes that, No. 1, prosecutors have to do their jobs, and No. 2, that, especially when it comes down from the highest levels, that they do it based on facts and law and the few bad apples that are out there that might do it - run prosecutions based on, you know, other criteria, such as race, such as political retribution. They're few and far between, and, you know, we don't want to muck up the system by having prosecutors worry about any kind of legal consequences for their decisions. So we're going to make it extremely hard to prove that. And, of course, that leaves people having to fend off bogus investigations and prosecutions, even if the evidence really isn't there.
You know, you can have a lot of harm done before you actually get to a jury, even if you're innocent and they can't prove beyond a reasonable doubt, having the full weight of the federal government come down against you to investigate when there's really nothing there can cause a tremendous amount of harm. And, of course, prosecutors have immunity, just like the presidents now do as of last summer for actions taken as prosecutors, not necessarily criminal immunity, but they do have immunity.
MARTIN: Very, very briefly, is there anything in history that you would cite as a precedent to what we're seeing now?
WEHLE: No, because after the Nixon administration, there was a norm that was implemented at the Justice Department to separate politics from prosecutorial decisions that's been blown open. And that's very serious, and we'll probably see...
MARTIN: OK
WEHLE: ...That line, you know, gone, moving forward.
MARTIN: That is University of Baltimore Professor of Law, Kim Wehle. Professor Wehle, thank you so much.
WEHLE: Thank you. Transcript provided by NPR, Copyright NPR.
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