Trump's latest attack on the Constitution -- and Joe Biden [View all]

Trump’s latest attack on the Constitution — and Joe Biden
The president is trying to find a workaround to Biden's commutations — and the double jeopardy clause

By Austin Sarat
Published December 30, 2025 6:30AM (EST)


(Salon) On Dec. 22, the New York Times published a shocking story detailing the ways the Trump administration is working with allies in red states to pursue new death sentences against people whose sentences were commuted by former President Joe Biden. While this is yet another example of the president’s unrelenting vendetta against his predecessor, it also creates, as the Times observes, a “legal predicament” for people subject to a second prosecution for the same crime that has “no modern precedent.”

Donald Trump and his administration are engaged in a bloodthirsty embrace of capital punishment. On the first day of his second term, the president issued an executive order “to ensure that the laws that authorize capital punishment are respected and faithfully implemented, and to counteract the politicians and judges who subvert the law by obstructing and preventing the execution of capital sentences.” He directed Attorney General Pam Bondi to do whatever she could to undermine the clemency that Biden had extended to 37 people awaiting execution on federal death row.

Under the Constitution’s prohibition of double jeopardy, the feds cannot prosecute them again, but Trump ordered Bondi to examine each of their cases to determine “whether these offenders can be charged with State capital crimes” and to “recommend appropriate action to state and local authorities.” And in MAGA world, what Trump wants, he is supposed to get.

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What Trump and his allies are doing is a way of undermining the president’s power to grant pardons and reprieves — and more specifically, Biden’s exercise of that power. If outrageous claims about autopens won’t do the job, perhaps prosecutors in red states can help. .....................(more)

https://www.salon.com/2025/12/30/trumps-latest-attack-on-the-constitution-and-joe-biden/